Re: Jamie - [2012] FamCAFC 8

FAMILY COURT OF AUSTRALIA

RE: JAMIE

[2012] FamCAFC 8

FAMILY LAW – APPEAL – Special medical procedure – application by a public authority to intervene or appear as amicus curiae in the appeal

Family Law Act 1975 (Cth) s 92
Applicable State legislation, citation suppressed by Court Order
Australian Human Rights Commission Act 1986 (Cth) s 11(1)(o)

Bropho v Tickner (1993) 40 FCR 165
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Coulton v Holcombe (1986) 162 CLR 1
Karam v Palmone Shoes Pty Ltd [2010] VSCA 252
Levy v Victoria (1996-1997) 189 CLR 579
Metwally v University of Wollongong (1985) 60 ALR 68
Re Alex (2009) 42 Fam LR 645
Re Alex: Hormonal Treatment for gender identity dysphoria (2004) FLC 93-175
Re Bernadette (Special Medical Procedure) (2010) 43 Fam LR 467
Re Brodie (Special Medical Procedure) [2008] FamCA 334
Re Medical Assessment Panel; Ex Parte Symons [2003] WASC 154
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520

APPELLANTS:

The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER:

FIRST INTERVENER:

A Public Authority

SECOND INTERVENER:

Australian Human Rights Commission

FILE NUMBER:

By Court Order, file number is suppressed

APPEAL NUMBER:

By Court Order, appeal number is suppressed

DATE DELIVERED:

2 February 2012

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATES:

3 November 2011 and
24 November 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2011

LOWER COURT MNC:

[2011] FamCA 248

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

(1)[The First Intervener] is granted leave to intervene in the appeal pursuant to
s 92 of the Family Law Act 1975 (Cth) upon the following conditions:
(a)[the First Intervener] is not permitted to call or tender any evidence in relation to the appeal; and
(b)[the First Intervener] is confined to making written and oral submissions in relation to Ground 1 in the Amended Notice of Appeal filed on 24 June 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Jamie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

Appeal Number: By Court Order, appeal number is suppressed
File Number: By Court Order, file number is suppressed

The Mother and the Father

Appellants

And

Independent Children’s Lawyer

And

A Public Authority

First Intervener

And

Australian Human Rights Commission

Second Intervener

REASONS FOR JUDGMENT

Introduction and background

This judgment concerns an application by a public authority (“the First Intervener”) to intervene pursuant to s 92(1) of the Family Law Act 1975 (Cth) (“the Act”) in an appeal currently pending in this Court.
On 6 April 2011 Dessau J delivered judgment in a parenting case in which the Court was being asked by the parents of an almost 11 year old child (“Jamie”) to authorise them to consent to…

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: Jamie

Details

AGLC: Re: Jamie [2012] FamCAFC 8
Case: [2012] FamCAFC 8
Decision Date: 2 February 2012

CaseChat Overview and Summary

Jamie sought to appeal an order made by the Family Court of Australia, which had ruled in a matter concerning a child. The First Intervener, a party not originally involved in the initial proceedings but with an interest in the outcome of the appeal, applied for leave to intervene. The primary legal issue before the court was whether the First Intervener was entitled to intervene under section 92 of the Family Law Act 1975 (Cth). The court considered whether the First Intervener's intervention would assist in the just resolution of the appeal and if their participation would be in the best interests of the child.

The court determined that the First Intervener's intervention was warranted. It found that the First Intervener's submissions would provide valuable insights into Ground 1 of the appeal, which concerned the primary judge's consideration of the child's best interests. The court concluded that allowing intervention would not prejudice any party and would facilitate a comprehensive examination of the issues at hand. The court also emphasised the importance of ensuring that the child's welfare remained the paramount consideration in the proceedings. Consequently, the court granted the First Intervener leave to intervene under specific conditions, including a prohibition on presenting new evidence and limiting their submissions to Ground 1 of the appeal.

Orders

Orders of the court

(1) [The First Intervener] is granted leave to intervene in the appeal pursuant to

s 92 of the Family Law Act 1975 (Cth) upon the following conditions:

(a) [the First Intervener] is not permitted to call or tender any evidence in relation to the appeal; and

(b) [the First Intervener] is confined to making written and oral submissions in relation to Ground 1 in the Amended Notice of Appeal filed on 24 June 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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