Re Brodie (Special Medical Procedures: Jurisdiction) - [2007] FamCA 776

FAMILY COURT OF AUSTRALIA

Re brodie (Special Medical procedures: Jurisdiction)

[2007] FamCA 776

FAMILY LAW – CHILDREN – Special medical procedures – Jurisdiction of the Family Court

Family Law Act 1975

Applicant:

Mother

Respondent:

father

By Court Order the file number is suppressed

Date delivered:

24 July 2007

Place delivered:

Melbourne

Place heard:

Melbourne

Judgment of:

Carter J

Hearing date:

10 July 2007

Representation

By Court order the names of counsel and solicitors have been

suppressed

IT IS NOTED IN CONNECTION WITH THESE REASONS that the judgment of the Honourable Justice Carter delivered this day will for all publication and reporting purposes be referred to as Re Brodie (Special Medical Procedures: Jurisdiction)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: By Court Order the File Number is suppressed

Applicant Mother

and

Respondent Father

and

The Public Advocate

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

An eleven-year old girl (“the child”) wishes to be identified as a boy. In the view of a number of experts she has Gender Identity Disorder who proposed that she should commence treatment with a gonadotrophin-releasing hormone analogue in order to suppress the onset of puberty. That treatment is reversible and any decision about treatment with male sex hormones is not proposed to occur until the child is older and around the age of 16.
The child’s mother has applied to the Court to be authorised to consent to this procedure, her application having been filed on 11 April 2007.
The child’s father is a respondent to the application, which he opposes. He resides in another State, as does his solicitor, and participation in these proceedings has been by a telephone link. As amicus curiae I have had assistance from the representative of the Victorian Public Advocate’s office. Senior Counsel has appeared on behalf of the mother and at an earlier stage an order was made for the child to be separately represented. Subsequently, further order was made for the preparation of a Family Report and the proceeding was adjourned for final hearing as a two-day case commencing 6 August 2007.
The Family Report was duly prepared. It is dated 25 June 2007 and after it had been released the Court was contacted by the Independent Children’s Lawyer who requested that the proceeding be listed because of certain concerns which had arisen as a result of that report. For present purposes I need not address those concerns.
The matter was duly listed for 10 July 2007 and as a preliminary matter the Independent Children’s Lawyer raised the question of jurisdiction. This arose because of the fact that the child is not a child of a marriage and as such, it was submitted, the “welfare” power in s 67ZC of the Family Law Act 1975 (Cth) (“the Act”) was not applicable. On behalf of the mother it was submitted that, if this was the case, the Court could rely on the guardianship jurisdiction derived from the referral of powers by the State of Victoria to the Commonwealth. The ultimate position of the father as expressed by his solicitor was to the effect that the father would abide the decision of the Court.
What I have just recorded effectively constituted the totality of the submissions, although in all fairness it should be noted that the matter had only been listed for mention and given that I was part heard in another case, only limited time was available.
The matter was considered in Chambers.

The Family Court’s Jurisdiction

The jurisdiction of the Family Court and in particular s 67ZC was considered by the High Court in Minister for Immigration & Multicultural & Indigenous Affairs and B (No. 3) (2004) FLC ¶ 93-174 (“MIMIA v B”). Briefly, the case concerned certain children who, together with their parents, had been detained pursuant to the Migration Act 1958 (Cth). Proceedings were commenced in the Family Court against the Minister for Immigration and Multicultural and Indigenous Affairs. Orders were sought that the Minister release them, alleging that the continuation of the detention was harmful to their welfare. A further order was sought that the Minister be restrained from detaining them. The children’s father intervened in the proceedings. In October 2002 Dawe J dismissed the applications on the basis that the Court did not have jurisdiction to make the orders sought. Appeals were subsequently filed and on 19 June 2003 the Full Court of the Family Court (Nicholson CJ, O’Ryan J, Ellis J dissenting in part) allowed the appeal and remitted the matter for further hearing. The Full Court granted a Certificate under s 95(b) of the Act, enabling the Minister to appeal to the High Court. Section 67ZC is in the following terms:
“SECTION 67ZC ORDERS RELATING TO WELFARE OF CHILDREN
Commentary on 67DZ
Commentary on 67ZC(1)
67ZC(1) [Child welfare orders]
In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
History
History
S 67ZC(1) inserted by No. 167 of 1995, s 31.
Note inserted by No 69 of 2002, Sch 1[19].
Commentary on 67ZC(2)
67ZC(2) [Best interests of child are paramount consideration]
In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.
History
History
S 67ZC(2) inserted by No. 167 of 1995, s 31; amended by No 46 of 2006, Sch 1, Pt 1 [38].
(I have reproduced the current wording of s 67ZC, which has been amended to include certain notes. The substance of the section has not, however, been amended from that considered by the High Court).
In par 10 of their judgment Gleeson CJ and McHugh J said:
“… The ‘welfare of children’ is not a matter mentioned in ss 75 or 76 of the Constitution. Indeed, it is not a matter mentioned in s 51 of the Constitution, the chief provision which invests the Federal Parliament with legislative power. Section 67ZC also does not itself expressly give jurisdiction in respect of a ‘matter’: it does not refer to any substantive rights, privileges, duties or liabilities or the persons who can apply for or be made subject to an order under the section.”
In par 22 their Honours wrote:
“Accordingly, the failure of s 67ZC, standing alone, to define the Family Court’s jurisdiction with respect to a s 75 or s 76 matter is not itself decisive against the respondents’ contention that the Family Court had jurisdiction in the present matter. Other provisions of the Act may supply the elements of a ‘matter’. The ultimate question then is whether, read as a whole, the Act defines the jurisdiction of and thereby – for constitutional purposes – confers jurisdiction on the Family Court to determine the present dispute between the respondent children and the Minister …”
Their Honours concluded at par 23:
“The valid application of s 67ZC, therefore, is dependent upon some other provision in Pt VII of the Act creating a ‘matter’ within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach. Consequently, it is necessary to turn to other provisions in the Act – particularly Part VII – to determine the jurisdiction, if any, that s 67ZC validly confers. This step is required in order to ascertain whether one or more provisions enacts substantive rights or privileges or imposes substantive duties which constitute a ‘matter’ under s 75 or s 76 of the Constitution and which can be inferentially linked to s 67ZC. …”
Thereafter their Honours considered relevant provisions of the Act and at par 28 turned to discuss Pt VII and its various divisions, concluding at par 39:
“Thus, the object of Pt VII and the contents of Divs 1-11 read as a whole suggests that, except where expressly mentioned, Pt VII is concerned with proceedings between the parents of children and also with the obligations of parents of children.”
Their Honours then analysed Div 12 of Pt VII, noting in par 40:
“… Section 69H(1), which is in subdiv C specifically confers jurisdiction ‘on the Family Court in relation to matters arising under this part’. Section 69M declares that the ‘jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division’.”
In par 41 their Honours considered subdiv F of Div 12, noting that it was concerned with the application of Pt VII to the States and Territories. Their Honours said:
“… Subject to the terms of the section and s 69ZF, s 69ZE extends the operation of Pt VII to New South Wales, Victoria, Queensland, South Australia and Tasmania. Subject to the same provisions, s 69ZE also extends the operation of Pt VII to Western Australia if the parliament of that state refers to the Parliament of the Commonwealth certain matters concerning children or if it adopts Pt VII. Those matters are: (1) ‘the maintenance of children and the payment of expenses in relation to children or childbearing’; and (2) ‘parental responsibility for children’. Western Australia has not made such a referral. Part VII extends to a state only if an Act of the parliament of the state either refers to the Parliament of the Commonwealth those matters or ‘matters that include, or are included in, those matters’ or adopts Pt VII. Further, the part extends to a state only in so far as it makes provision with respect to the matters that are referred to the Parliament of the Commonwealth or matters that are incidental to the execution of any power vested in the Commonwealth Parliament in relation to those matters. South Australia has not referred the matter of the welfare of children to the Parliament of the Commonwealth.” (Footnotes omitted.)
It is convenient to note here that Victoria also did not refer the matter of the welfare of children to the Parliament of the Commonwealth.
In par 44 their Honours noted that s 69ZJ conferred jurisdiction on courts where jurisdiction pursuant to Pt VII has been invested in or conferred on the Court in matters between residents of different States with respect to the maintenance of children, the payment of expenses in relation to children or child-bearing, or parental responsibility in relation to children.
Their Honours then turned in par 45 to discuss s 69ZH. This section has been amended subsequently to include in sub-s (2) a reference to subdiv BA of Div 1, consequent upon the amendment to the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Section 69ZH(3)(ii) has also been amended by the same Act to reflect the changed phraseology from “residence of the child, contact between the child and other persons” to the wording reflecting the concept of a child living with and spending time with a person. Otherwise the section remains unaltered and for convenience I will set it out in its present form.
“69ZH(1) [Additional effect of Part]
Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
69ZH(2) [Effect of certain Divisions etc.]
By virtue of this subsection, Subdivsion BA of Division 1, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a)each reference to a child were, by express provision, confined to a child of a marriage; and
(b)each reference to the parents of the child were, by express provision, confined to the parties to the marriage.
69ZH(3) [Effect of provisions relating to parental responsibility]
The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):
(a)the duties, powers, responsibilities and authority of those parties in relation to:
(i)the maintenance of the child and the payment of expenses in relation to the child; or
(ii)whom the child lives with, whom the child spends time with and other aspects of the care, welfare and development of the child; and
(b)other aspects of duties, powers, responsibilities and authority in relation to the child:
(i) arising out of the marital relationship; or
(ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii)in relation to the divorce of the parties to that marriage, an annulment of that marriage or a legal separation of the parties to that marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.
69ZH(4) [Effect of other Divisions]
By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor.”
Their Honours noted that the jurisdiction and powers conferred by s 67ZC might have two operations, namely, the restricted operation given to them by those sub-sections and such wider operation as it was possible to deduce from provisions of Pt VII other than s 69ZH. They noted that the majority of the Full Court of this Court had held that s 67ZC had the wider operation.
Ultimately, however, their Honours did not find it necessary to determine the meaning of s 69ZH saying at par 50;
“… it does not matter whether one accepts the Minister’s or the Full Court’s construction of s 69ZH. Even if s 67ZC has an operation independently of the terms of s 69ZH(2) and (3), the terms of Pt VII read as a whole, and the Constitutional imperatives of Ch III confine the Family Court’s jurisdiction and powers with respect to the welfare of the children in this case in the same way as do s 69ZH(2) and (3).”
Their Honours concluded:
“[51.] By necessary implication, the parents of a child may seek an order under s 67ZC whether the operation of that section is confined by s 69ZH(2) and (3) or whether it has an operation independently of those sub-sections. The right to seek that order arises from various provisions in Pt VII, but particularly from ss 60B, 61B and 61C. Section 60B(1) declares that the object of Pt VII:
‘is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’
Section 61C(1) declares that ‘[e]ach of the parents of a child who is not 18 has parental responsibility for the child.’ Section 61B defines this parental responsibility in Pt VII to mean ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ The provisions of these three sections provide ample support for an application by a parent for an order under s 67ZC, whether the source of the jurisdiction is Div 12 generally or s 69H in particular.
[52.] By necessary implication, the Family Court may also make an order under s 67ZC that is binding on a parent. Under that section it may also make orders such as those made in Marion's Case or those analogous to orders traditionally made by courts exercising the parens patriae jurisdiction. Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes - expressly or inferentially - any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties - for example, ss 65M, 65N and 65P - that Part is concerned with the relationship between parents and children and parents’ duties in respect of their children. We have already set out s 60B(1), which states the object of Pt VII. Section 60B(2) declares:
‘The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.’ ”
Gummow, Hayne and Heydon JJ gave a separate judgment. At par 74 they said:
“[74.] It is desirable to approach consideration of the text and structure of what is now Pt VII by first referring to some earlier decisions of this Court about the Family Law Act. Those decisions illustrate how that Act, in its earlier forms, has been held to operate in identifying matters and in conferring jurisdiction with respect to them. From there it is convenient to go to the examination of a number of the provisions of Pt VII in order to reveal the place occupied by the particular provisions which are in issue in this appeal. That examination will reveal that the Minister's submission is correct. It is Div 12 which provides the relevant conferral of jurisdiction on the Family Court. The jurisdiction conferred is limited. Neither s 69ZE nor s 69ZH conferred jurisdiction to decide either of the applications which gave rise to this appeal. Section 69ZE confers jurisdiction on the Family Court in matters the subject of a reference by a state of power, and matters incidental to the execution of a power vested by the Constitution in the Federal Parliament in relation to those matters. Neither of the applications which give rise to this appeal was such a matter, the reference by South Australia being limited to matters of maintenance, custody, guardianship and access. Section 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.”
Their Honours went on subsequently:
“[103.] The Minister submits that there were two potential applications of Div 12 of Pt VII to the children in South Australia. The first was found in s 69ZE. That represents a continued exercise of the federal legislative power consequent upon the state references. Those references, as indicated in s 3(1) of the SA Act, which has been set out, were limited by referring the subject-matter only to the extent to which it was not otherwise within federal legislative power. That would include the marriage and divorce powers and the territories powers which underpin, but may not be exhausted by, other particular provisions in Div 2.
[104.] In any event, the references were limited to matters of maintenance, custody, guardianship and access. In Marion's Case, Mason CJ, Dawson, Toohey and Gaudron JJ indicated that orders of that description were of a narrower genus than those relating to the welfare of a child. (Footnote omitted.)
[105.] The second potential application was in the combination of s 69ZH and s 67ZC. However, in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage. The result, the Minister submits, is that neither of these potential applications of Div 12 of Pt VII could be supported in the present litigation. That submission should be accepted. The same is to be said of reliance upon the injunction provision in s 68B in conjunction with s 69ZH.”

In his separate judgment Callinan J wrote:
“[204.] In my opinion the appellant's first submission is correct, that the jurisdiction conferred by s 67ZC of the Family Act does not, as a matter of statutory construction, extend to a jurisdiction to order the children to be released from detention. The only jurisdiction which the relevant states, including South Australia, sought to transfer and transferred to the Family Court for exercise under the Family Act pursuant to s 69ZE(3) and (4) was relevantly, the parental responsibility for, and the parental maintenance of children. Clearly, the orders sought by the respondents in this case are not orders with respect to any of these matters.
[205.] The reference by the states in the terms that it was made is consistent with these propositions: the Commonwealth has power to make laws with respect to marriage under s 51(xxi) and s 51(xxii) of the Constitution; power in relation to ex-nuptial children resides in the states; and the whole thrust of the Family Act so far as children are concerned is to deal with children of marriages and the obligations of their parents to them. That last appears (inter alia) from those provisions of the Family Act in Pt VII to which I have referred, including s 69ZH, in which the notion of, and obligations attached to ‘parenting’, that is to say, parents within, or who have been in a marriage, are set out. It was with ‘parenting’ and its obligations not otherwise the subject of the Family Act that the states were concerned, and some powers with respect thereto that they sought to, and did in terms transfer to federal courts, the Family Court, and, by s 69H(4), the Federal Magistrates Court.
[206.] Sections 69ZE to 69ZH are central to, and govern the application of the provisions of Pt VII. It is not only unlikely that a state would seek to confer a power upon the Commonwealth that the latter already possessed, but it also would be constitutionally unable to do so. What the states have done is simply to confer a jurisdiction with respect to parental obligations owed to children, not already possessed by the Commonwealth. Furthermore, the power or jurisdiction conferred is neither in terms nor by implication a general welfare jurisdiction over children. What I have said is, I believe, in conformity with the recent approach of the Court generally to a reference of a state power to be exercised in conjunction with a constitutionally confined Commonwealth power.” (Footnote omitted.)
His Honour concluded:
“[215.] No matter how extensive the powers conferred by ss 51(xxi) and 51(xxii) may be, the powers of the Family Court with respect to children are powers in relation to, or arising out of married (either currently or previously) parentage of children, or of unmarried parentage of them on a reference by the states. Those powers do not comprehend a general discretionary welfare power over any or all children, whether of a marriage or not, exercisable in such a way as to override any or all other powers over children, such as to detain them in immigration detention, or rehabilitative, reformative, or penal institutions. The Family Court may no more do this than it could exercise a jurisdiction in tort or contract in order to advance the welfare of a child.”

Discussion

The Family Law Act 1975 in its initial form contained detailed provisions relating to the power of this Court to make orders relating to the custody and guardianship of, and access to, children of the marriage. The State courts retained wardship jurisdiction in respect of children who were not children of a marriage. In Lamb and Lamb (No. 1) (1997) FLC ¶ 90-225 Asche SJ held that this Court, being a statutory court, had not inherited “those powers which stem from the Courts of Equity exercising the Sovereign’s power of parens patriae in wardship proceedings and vested by lawful succession in the Supreme Courts of the States.”
In Fountain & Anorv Alexander & Anor (1982) FLC ¶ 91-218 Gibbs CJ, and Mason J held that the Family Law Act did not confer a jurisdiction to make orders for wardship. I note that Stephen J agreed with Mason J, apart from the question of the existence of a residual wardship jurisdiction in Supreme Courts, and further, that no other member of the High Court stated an opinion as to this aspect.
In the same case Gibbs CJ and Mason J also considered the meaning and effect of an order for custody, both referring to Hewer v Bryant (1970) 1 QB 357 (inter alia). Mason J said at 77,192:
“ ‘Custody’ has a variety of meanings. Like the chameleon it adapts itself to its surroundings so that little is to be gained by discussing its various connotations, except to note that in its widest meaning it is virtually the equivalent of ‘guardianship’ which has been described as ‘a bundle of powers’ including the power to control education, the choice of religion and the administration of the infant’s property.”
Mason J went on to note that wardship and custody have been recognised as different though alternative legal regimes, and that wardship proceedings could not be described accurately as proceedings for guardianship or custody.
Prior to the amendments to the Family Law Act 1975 in 1983 there was no general power in this Court to make orders relating to the welfare of a child; orders were confined to those concerning custody, guardianship, or access.
In Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC ¶ 92-293 (Marion’s case) the majority noted that the Act had been amended to enable orders to be made for the protection of the welfare of a child of a marriage. Additionally, the definition of ‘matrimonial cause’ in s 4(1) of the Act was amended to include ‘proceedings with respect to the welfare of a child of the marriage’. The majority concluded that the 1983 amendments were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidence of one of the aspects of that jurisdiction, namely, the jurisdiction to make a child a ward of court.
It was noted in Marion’s case that the Family Law Act was limited in its operation by reference to the Constitutional powers under which it was enacted, namely, “Marriage” (s 51(xxi)); “Divorce and Matrimonial Causes; and in relation thereto, parental rights and the custody and guardianship of infants” (s 51(xxii)); and, so far as the Northern Territory is concerned, the territories power (s 122). Their Honours went on to say:
“It is clear enough that a question of sterilisation of a child of the marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise the sterilisation is within the reach of power of the Commonwealth, quite apart from the operation of s 122 of the Constitution.”
When Marion’s case came before the High Court, s 63(1) of the Act as it then stood conferred jurisdiction on the Family Court “in relation to matters arising under this Part. Section 64(1) of the Act provided:
“In proceedings in relation to the custody, guardianship or welfare of, or access to, a child –
…
(c) … the court may make such order in respect of those matters as it considers proper, including an order until further order.”
As the majority in Marion’s case noted, the sub-section did not in terms confer jurisdiction on this Court but did confer power to make orders and presupposed jurisdiction.
It can be seen from the judgment of Gummow, Hayne and Heydon JJ as well as the decision of Callinan J that the apparently broad “jurisdiction” given in s 67ZC of the Act is confined by s 69ZH to the parental responsibilities of the parties to a marriage or a child of the marriage.
In the present case, and as already noted, the child in question is not a child of a marriage.
In MIMIA v B Gleeson CJ and McHugh J (at par 41); Gummow, Hayne and Heydon JJ (at par 74); and Callinan J (at par 204) drew attention to the fact that South Australia had not referred the matter of the welfare of children to the Parliament of the Commonwealth. The same situation applies in Victoria, the Commonwealth Powers (Family Law – Children) Act 1986 (Vic) having referred powers with respect to ex-nuptial children, but only in the context of maintenance, custody, guardianship and access. This may be contrasted with the previous cross-vesting scheme which cross-vested the jurisdiction of the superior courts generally, at least until the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511.
The terms of “guardianship, custody and “access” are no longer used in this Court. The Family Law Reform Act 1995 removed those terms and replaced them with the terms “residence” and “contact”. The Reform Act also emphasised the concept of parental responsibilities.
Further amendments were made to the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The concepts which were introduced in place of residence and contact include “living with”, “spending time with”, “have communication with” and parental responsibility orders dealing with major long-time issues, and issues which are not major long-term issues.
As can be seen the Act now speaks in terms of parental responsibility and obligations, rather than parental powers. (In the latter regard see Hewerv Bryant). This may well be a distinction without a difference. For example, consent to medical treatment on behalf of a child would usually fall within the scope of parental “responsibility” or “powers”.
It is the case that certain special medical procedures lie beyond the ordinary scope of parenting and require the authorisation of the Court (see Marion’s case). It could be that the authorisation of such a procedure would fall within the exercise of the power referred by the Victorian Parliament in relation to the guardianship of a child (see s 3 Commonwealth Powers (Family Law – Children) Act 1986 (Vic)).
As noted, s 69H(1) confers jurisdiction on the Family Court “in relation to matters arising under (Pt VII)”. However, the decisions in MIMIA v B establish that this section is not of itself a conferral of jurisdiction and the source of jurisdiction must be found in other provisions of Pt VII - the section requires a search for a relevant “matter” arising under Pt VII.
It will be recalled that s 69ZJ which is in Pt VII of the Act extends the jurisdiction of the Family Court in matters between residents of different States, including matters with respect to “parental responsibility in relation to children”. This section relies on s 75(iv) of the Constitution.
It will also be recalled that the parents of the child who is the subject of the present proceedings live in different States and they are in dispute as to whether the Family Court should authorise the special medical procedure earlier described.
The child’s mother is entitled to seek a parenting order (s 65C) and the Court is entitled to make whatever parenting order it thinks proper, subject to certain matters (s 65D). The requirements of s 69E have been met.
Section 61B provides that in Pt VII parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority which by law parents have in relation to children. “Parenting order” is defined in s 64B of the Act. Such an order may deal with (inter alia) the person or persons with whom a child is to live; the time a child is to spend with another person or other persons; the allocation of parental responsibility for a child; and (pursuant to s 64B(2)(i)) “any other aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child”.
In my view, the authorisation of the medical treatment sought in these proceedings is an aspect of parental responsibility for this child and is directly related to the care, welfare or development of this child.
Accordingly, in my view, the Court has both jurisdiction and power to deal with the application.

Other Matters

The question arises whether the proposed medical procedure is a “special medical procedure”.
This question arose in Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC ¶ 93-175 (“Re Alex”). At the time Nicholson CJ heard this case he was bound by the decision of the Full Court of this Court in B and B and Minister for Immigration and Ethnic Affairs (2003) FLC ¶ 93-141. The former Chief Justice’s judgment was delivered in Re Alex a little over two weeks before the High Court delivered its judgment in MIMIA v B. Accordingly, some parts of his judgment, and especially those dealing with s 67ZC as forming the basis of jurisdiction must be looked at in the light of the High Court’s decision.
In the present case the proposed treatment is said to be fully reversible. I am not asked to implement any other or further treatment which has or may have irreversible consequences. Unlike the situation in Re Alex I am being asked to view this first and reversible stage in isolation whereas the former Chief Justice was ultimately asked to deal with a staged clinical program as part of a “single package”, that is to say not to authorise only the first stage of treatment, leaving subsequent stages for future application and determination.
It is not necessary to determine this question for present purposes, although it may be important later. In the present case the parents disagree completely even about the first and reversible stage of the proposed procedure.
I will ask for counsel’s assistance as to the formulation of further directions in respect of this matter.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 24 July 2007