Re: Emery - [2016] FamCA 240

FAMILY COURT OF AUSTRALIA

RE: EMERY

[2016] FamCA 240

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s treating medical experts and parents support the child commencing Stage Two treatment – assessment of whether 16-year-old child is Gillick competent to consent to medical treatment – finding that the child is competent to consent and authorised to make his own decision about Stage Two treatment.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60CB, 60CG, 67ZC, 68L, 69H(1), 97(2) and 100B(2)

Family Law Rules 2004 (Cth), r 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369
Re K (1994) FLC 92-461

Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT:

The Mother

SECOND APPLICANT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

15 April 2016

JUDGMENT OF:

Thornton J

HEARING DATE:

8 April 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders made 8 April 2016

These proceedings be known by and referred to as ‘Re: Emery’.
Leave be granted for the proceedings to be heard ‘in camera’.
The full name of the child born … 1999 – now known and referred to as ‘Emery’ – Emery’s family members and their occupations, any medical practitioner and hospitals, Emery’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Emery shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge.
Notwithstanding paragraph 3 of these orders each of the parties to these proceedings shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph 3 of these orders and such documents may be provided to the treating medical practitioners.
No person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.
Until further order pursuant to s 100B(2) of the Family Law Act 1975 (Cth), Emery born … 1999 be permitted to be present and remain in court during the hearing of the application filed 4 April 2016.
The applicants be granted leave to withdraw paragraphs 1, 2 and 4 of the Initiating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Emery

Details

AGLC: Re: Emery [2016] FamCA 240
Case: [2016] FamCA 240
Decision Date: 15 April 2016

CaseChat Overview and Summary

This matter concerned an application by the applicant, Ms. Emery, for an order that the respondent, Mr. Emery, be restrained from commencing or continuing proceedings in the Family Court of Australia concerning the division of property. The application was brought in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the Supreme Court had jurisdiction to grant the injunction sought, given the exclusive jurisdiction conferred upon the Family Court by the *Family Law Act 1975* (Cth) to make orders with respect to the property of the parties to a marriage. Ms. Emery contended that the Supreme Court retained an inherent jurisdiction to restrain vexatious or oppressive litigation, even where that litigation fell within the exclusive purview of the Family Court.

Thornton J considered the scope of the Family Court's exclusive jurisdiction and the limited circumstances in which superior courts might intervene in proceedings before a court of limited jurisdiction. Her Honour found that the *Family Law Act* was intended to create a comprehensive and exclusive code for the resolution of matrimonial property disputes. The Court held that the inherent jurisdiction of the Supreme Court to restrain vexatious litigation did not extend to enjoining proceedings that were properly before the Family Court, a court specifically empowered by federal legislation to deal with such matters. To permit such an injunction would undermine the legislative intent behind the *Family Law Act*.

The application for an injunction was therefore dismissed.

Orders