Re: Jamie
[2012] FamCAFC 8
•2 February 2012
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 treatment on behalf of Jamie under the guidance of Jamie’s treating medical practitioners, for the administration of particular drugs designed to achieve suppression of certain hormones affecting the development of male features and particularly the onset of male puberty.
Although born with the physical characteristics of a male and having a non identical twin brother, Jamie began identifying with the female gender when she was about two and a half to three and a half years old. At the time of the hearing she was in grade five at school and since mid 2009 has been known exclusively as a girl, wearing girls’ clothing, being addressed as a girl by classmates and teachers, using the girls’ toilets, sleeping in the girls’ dormitory at camp and “generally presenting as a very attractive young girl with long blonde hair” (reasons for judgment, paragraph 2).
Jamie was diagnosed by the medical experts involved in the case with childhood gender identity disorder. The medical experts supported the parents’ application for Jamie to undertake the following special medical procedures:
a)
the administration of puberty suppressant hormones such as implants of Zoladex (the gnRH agonist) at intervals and at a dosage as may be determined necessary to achieve suppression of gonadotropins and testosterone to pre-pubertal levels under the guidance of Jamie’s treating practitioners including but not limited to Dr G (endocrinologist), and
Dr C (psychiatrist) (“Stage 1”);
b)additional treatment of oestrogen as may be considered appropriate by Jamie’s treating endocrinologist currently being Dr G (endocrinologist) and in consultation with and on the written advice of Jamie’s treating psychiatrist, currently Dr C (psychiatrist) (“Stage 2”).
In the reasons for judgment her Honour observed that the medical practitioners were unequivocal as to the absolute urgency for Jamie to start what is referred to as “Stage 1” treatment, to suppress male puberty. Her Honour noted (reasons for judgment, paragraph 5):
… She currently has the pubescent development of a 14-year-old male, and it is rapidly progressing. The concern was that physiological developments, such as a deepening voice, would be irreversible unless treatment was started. For that reason, the hearing in this case was brought forward.
At the end of the hearing on 28 March 2011 her Honour permitted Stage 1 treatment but determined that it was premature to make any order about Stage 2. Subsequently the published reasons dealt with her Honour’s reasons for this.
Relevantly, in the reasons for judgment her Honour noted the constraints of the Act and that the objects in s 60B(1) are to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children, and, in making decisions about a particular parenting order the best interests of the child are the paramount consideration (s 60CA). The primary and additional considerations for the Court in determining what is in a child’s best interests are set out in s 60CC(2) and (3). Her Honour noted relevantly for the appeal (reasons for judgment, paragraph 33):
It is generally within the bounds of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child. There are however certain procedures, referred to in the authorities as “special medical procedures”, that fall beyond that responsibility and require determination by the court, as part of the court’s parens patriae or welfare jurisdiction (see Secretary, Department of Health and Community Services the JWB and SMB (1992) FLC 92-293 (Marion’s case)). …
Again, relevantly for the purpose of this application and the appeal her Honour said (reasons for judgment, paragraph 33):
… There was no dispute in this case that the procedures proposed fall within the definition of special medical procedures.
Her Honour noted that in 1995 s 67ZC of the Act was inserted specifically providing that the Court has jurisdiction to make orders relating to the welfare of children. She observed that the procedure to be followed in applications for medical procedures is contained in Chapter 4, Division 4.2.3 of the Family Law Rules 2004 (Cth) and that r 4.09(2) identifies the evidence that must be included from “a medical, psychological or other relevant expert” in such a case. Her Honour observed that childhood gender identity disorder has been considered in several reported decisions including Re Alex: Hormonal Treatment for gender identity dysphoria (2004) FLC 93-175, in which the relevant treatment was permitted.
Her Honour went on to consider the matters in r 4.09(2), and in a sensitively expressed conclusion determined that it was in the best interests of Jamie to authorise Stage 1 of the medical treatment. Her Honour noted that although in other cases, including her own previous decisions, Stages 1 and 2 have been dealt with at the one time, in view of the unusually young age of Jamie and the unlikelihood of her requiring further treatment until she was around 16 years of age, she could not decide what was likely to be in Jamie’s best interests in six years time and declined to order Stage 2 treatment.
At the trial before her Honour apart from the medical experts she had evidence from a family report writer and there was an Independent Children’s Lawyer appointed for Jamie. All were supportive of Stage 1 treatment commencing immediately. Her Honour noted in her reasons for judgment that she had made an order inviting the First Intervener and a State government department to intervene in the proceedings, particularly in view of Jamie’s young age, but both declined.
The appeal was brought by the parents of Jamie (“the Appellants”) who now rely on an Amended Notice of Appeal filed on 24 June 2011. They rely upon three grounds of appeal which are as follows:
1.That, contrary to the view expressed by the learned trial Judge, treatment of the condition described as “childhood gender identity disorder” with which “Jamie” was diagnosed is not a special medical procedure which displaces the parental responsibility of the appellants to decide upon the appropriate treatment for their child.
2.That Ground 1 be considered and allowed notwithstanding that no such submission was made to the learned trial Judge, and her Honour proceeded on that basis that:- “There was no dispute in this case that the procedures proposed fell within the definition of special medical procedures” (Judgment paragraph 33).
3.Further and in the alternative to Ground 1, once the diagnosis of childhood gender identity disorder was established and accepted and the treatment approved, the learned trial Judge erred in law and the exercise of discretion in concluding that the treatment for the disorder should be the subject of a further application to the Court when the “stage 2” is about to commence.
As is clear from the grounds themselves, only Ground 3 raises an issue which was agitated at trial. The first ground asserts that childhood gender identity disorder is not a special medical procedure which displaces the parental responsibility of the Appellants to decide upon the appropriate treatment for their child. It is conceded in Ground 2 that this is not a matter agitated at trial.
Notwithstanding that this issue was not agitated at trial, if her Honour erred in law then the jurisdiction of an appellate court to correct that error can be invoked: Coulton v Holcombe (1986) 162 CLR 1, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Metwally v University of Wollongong (1985) 60 ALR 68.
Upon the lodging of the Notice of Appeal, the Appeals Registrar, in accordance with the invitation that her Honour had extended at trial, gave notice of the appeal to the First Intervener. Notwithstanding the declining of an invitation to intervene at first instance, the First Intervener filed an application seeking leave to intervene in the appeal or, alternatively being granted leave to appear as amicus curiae in the appeal. That application is opposed by the Appellants. The Independent Children’s Lawyer, understandably, expresses no view.
In the course of hearing the submissions in relation to that application on
3 November 2011, the question arose as to whether intervention on behalf of a federal entity as opposed to a state entity would be appropriate and the Court ordered that the Attorney-General for the Commonwealth and the Australian Human Rights Commission be invited to intervene. The Attorney-General declined to intervene but the Australian Human Rights Commission filed an application on 23 November 2011 seeking leave to intervene in the proceedings pursuant to s 92(1) of the Act and s 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth). There was no objection to the intervention by the Australian Human Rights Commission, and on 24 November 2011 an order was made by consent providing for that.
These reasons deal with the issue of whether the First Intervener should be granted leave to intervene and if so, whether that leave should be as an intervener pursuant to s 92(1) of the Act or in the form of leave to appear as amicus curiae.
The submissions
The submissions of the First Intervener
The First Intervener relied heavily on the fact that at first instance on a number of occasions the Court had permitted intervention by the Australian Human Rights Commission and the First Intervener. In particular the First Intervener had been permitted to intervene in [four named cases, citations suppressed by Court Order]. The First Intervener was permitted to appear as amicus curiae in [two named cases, citations suppressed by Court Order].
The First Intervener contends that if the position of the Appellants that the “treatment of the condition of ‘childhood gender identity disorder’” with which Jamie was diagnosed is not a special medical procedure which displaces the parental responsibility of the Appellants to decide upon the appropriate treatment for their child had been argued at first instance, she would have accepted the invitation of Dessau J to intervene and would have appeared to oppose the argument of the Appellants.
The First Intervener submits that the appeal raises a significant issue that affects the interests and statutory obligations of the First Intervener. In this respect she submits that the role of the First Intervener is different from that of the Independent Children’s Lawyer whose focus under s 68LA(2) of the Act must be to form an independent view of what is in a child’s best interests and to act on that view in the proceedings. In circumstances where important questions are at stake the First Intervener brings a broader focus on how the law will affect other children with a disability. In this context it is said that the Independent Children’s Lawyer is not a sufficient contradictor for the purposes of this case and, in circumstances where the Appellants seek to agitate the matter for the first time, it is submitted the Court should grant leave for the First Intervener to intervene as a party (Summary of Argument, paragraphs 9 and 10).
The First Intervener submits that the child has a disability, namely a mental disorder, and hence comes within the jurisdiction and concerns of the First Intervener as set out in the relevant State legislation The First Intervener then contends that her role in respect of children with a disability intersects repeatedly and importantly with the issues before this Court in relation to special medical procedures and that any decision by this Court which potentially redefines the parameters of special medical procedures impacts upon the First Intervener’s role in a significant way.
The First Intervener also points to the Court’s protocol that encourages and imposes order upon how the First Intervener can discharge her role especially in the pre-trial phase of matters involving special medical procedures. …. It is directed only to the process of obtaining court approval for a medical procedure for a child in the State.
Turning to the reasons for the specific intervention sought in this case the First Intervener submitted that particular emphasis should be placed upon the sequence of decisions relating to childhood gender identity disorder, which it is said is a “controversial and complex psychiatric disorder”. The characterisation of that disorder and its treatment as a special medical procedure is fundamental as it distinguishes those cases to which parental acquiescence can be given without necessary court intervention, from those where the Court’s involvement needs to be orchestrated by a relevant party.
The First Intervener submitted that in the State it is on every occasion the First Intervener who has a series of statutory responsibilities in respect of the welfare and interests, not just of children, not just of persons who are incompetent, but of, in this instance, children with a disability. The First Intervener contends that she has assembled significant knowledge and expertise in respect of such matters and has been a significant party in respect of most of the cases that have come before the Court emanating from the State.
Further, in relation to the role which the First Intervener proposes, it is submitted that there is a report which has been commissioned by the First Intervener to assist her in understanding effectively the nature of the controversies currently in the medico-scientific literature in respect of this disorder, the ethical issues in respect of the attitude of the child, and the controversies and issues which arise in respect of treatment for a child which may span a significant number of years, between Stages 1 and 2. It was proposed, should the Court grant leave to intervene, to place that report before the Court in order to assist its deliberations. It is proposed that otherwise the First Intervener would principally rely on written submissions and thus the role would not consume significant extra time and expense.
In the event that intervention is not permitted the First Intervener submitted that it would still be appropriate for the First Intervener to appear as an amicus curiae.
Where it is in the interests of justice a Court can hear an amicus curiae and the First Intervener submits that that is the case here. She can ensure that the Court is properly and fully informed of all matters that the Court should take into account in making the decision in this appeal. Further, such involvement will not occupy time unnecessarily and it will not add inappropriately to the costs of the proceedings or cause any undue delay.
The submissions of the Appellants
In opposing the application for intervention or alternatively to appear as amicus curiae the Appellants submit that there is no need for a contradictor per se, as there is a large body of professional expertise which is regularly brought before the Court in the form of evidence from people treating these conditions. They contend that what is necessary is for the questions which arise in this case to be thoroughly explored, not necessarily by someone who simply disagrees. Given that the Australian Human Rights Commission has intervened, it is in a position to make submissions to assist the Court and their focus is a national one.
The Appellants also contend that the submissions of the First Intervener are founded upon the characterisation of Jamie as a child with a disability, but that is contrary to the evidence accepted by her Honour in the particular case. Accordingly, this is not an area which involves the “core business” of the First Intervener which is to represent adults who cannot care for themselves or children with disabilities as defined who have no parents or whose parents are determined to exercise parental responsibility in a way which is inconsistent with a child’s best interests.
In relation to the alternative of representation as amicus curiae the Appellants oppose that application on the basis that the First Intervener could be of no assistance to the Court having regard to the role of the Independent Children’s Lawyer, and oversight of these matters by various ethics committees in hospitals.
The Appellants submit that the role of the First Intervener in light of the other participants adds nothing to the appeal but if the Court were minded to allow intervention it should be limited to that of amicus curiae and limited to
Ground 1 of the appeal.
As to the proposed calling of evidence by the First Intervener, the Appellants oppose that course on the basis that the evidence is controversial, and for it to be useful it may need to be remitted to a trial judge for cross-examination and the calling of further evidence.
The relevant law
In family law matters intervention by persons other than parties is governed by s 92 of the Act which provides:
92 Intervention by other persons
(1)In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
(1A) ...
(2) An order under this section may be made upon such conditions as the court considers appropriate.
(3)Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
As was said by Brennan CJ in Levy v Victoria (1996-1997) 189 CLR 579, at 603-4:
… Jurisdiction to grant leave to intervene to persons whose legal interests are likely to be substantially affected by a judgment exists in order to avoid a judicial affection of such a person’s legal interests without that person being given an opportunity to be heard.
Nevertheless, an indirect affection of legal interests enlivens no absolute right to intervene. The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant’s legal interest is simply the inevitable consequence of the exercise by [a Court] of its jurisdiction …
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener’s submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied. [Footnotes omitted]
A person accepted as an intervener becomes a party to the proceedings with all the rights, duties and liabilities of a party. Hence an intervener can appeal, tender evidence and participate fully in all aspects of the argument: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 per Hutley J at 396;
Re Medical Assessment Panel; Ex Parte Symons[2003] WASC 154 per
EM Heenan J.
The right to appear before the Court as amicus curiae is not a statutory right as is intervention in the family law jurisdiction. In Levy v Victoria (supra) at 604 Brennan CJ said of the hearing of an amicus curiae:
The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. … [Footnotes omitted]
In that case at 604-5 Brennan CJ went on to say:
It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.
In United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 533-538, Davies, Wilcox and Gummow JJ undertook a detailed review of the authorities and extra-judicial writings on the subject while stressing that no fixed or inflexible practice about the scope and role of an amicus curiae had emerged from the authorities, and that the discretion of the Court remained a flexible one. Their Honours stressed that the conventional view was that an amicus curiae could not adduce evidence or make any contribution to the record, give discovery or inspect discovered documents.
In Bropho v Tickner (1993) 40 FCR 165 at 172-173, Wilcox J said:
In Australia, as distinct from the position in the United States, the intervention of an amicus curiae is a relatively rare event; the amicus' role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked. I do not dispute that it may sometimes be appropriate to allow an amicus curiae to complete the evidentiary mosaic by tendering an item of non-controversial evidence; although I would prefer to reserve my opinion whether this should be permitted to be done over the objection of one or more of the parties. But it is another matter where the proposed evidence would be complex and controversial. To allow the tender of that type of evidence may be to allow the amicus curiae effectively to hijack the parties' case, taking it off into new factual issues which may greatly extend its length and thereby impose significant additional costs and disadvantages upon the parties. Rarely, if ever, should this course be permitted.
In Karam v Palmone Shoes Pty Ltd [2010] VSCA 252, the Supreme Court of Victoria Court of Appeal (Mandie and Harper JJA, Beach AJA) said at paragraph 8 in relation to the comments by Wilcox J:
Of course, this case is an appeal and not a trial and ‘the facts being closed, hijacking is less likely’. Nevertheless the above observations by Wilcox J still have some resonance in a situation where a non-party seeks leave to lead fresh evidence over the objection of the appellant and where that very evidence is available to be relied upon by the appellant himself, if he so wishes (and if the Court so permits). [Footnote omitted]
In Re Medical Assessment Panel; Ex Parte Symons (supra), EM Heenan J said at paragraph 20:
Without excluding the possibility that there may occasionally be a case which may justify the course, my reading of the authorities leads me to the conclusion that it will be a rare and exceptional case in which an amicus curiae is permitted to adduce evidence or raise a special defence. The disinclination of the court to allow such a role is consistent with the rule that, in litigation in which only the rights of the contesting parties are affected, the cause should be accepted and decided by the court on the issues and upon the evidence which the parties themselves present for decision.
There was no attack upon the First Intervener’s capacity to intervene and we note that pursuant to the relevant State legislation the Public Authority may “… make representations on behalf of or act for a person with a disability…” …
Discussion
It is common ground that the issues that now arise on appeal, particularly in relation to Ground 1, were not issues raised before the trial judge.
However the issue now agitated in Ground 1 of the appeal raises the possibility of a significant change in the law as it now stands, and the overturning of many cases which have found treatment for childhood gender identity disorder to be a special medical procedure which displaces the parental responsibility of the parents to decide upon the appropriate treatment for their children:
Re Bernadette (Special Medical Procedure)(2010) 43 Fam LR 467; Re Alex (2009) 42 Fam LR 645; Re Brodie (Special Medical Procedure) [2008] FamCA 334; Re Alex: Hormonal Treatment for gender identity dysphoria (supra).
In this context it is, in our view, not inconsistent for the First Intervener to now wish to intervene in the appeal as a significantly different and potentially far reaching issue arises that was not agitated at trial.
The question in our view that falls to be decided is whether a person having a necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not fully present the submissions on a particular issue which would assist the Court to reach a correct determination: Levy v Victoria (supra).
We agree with the submissions of the First Intervener that Jamie is a person under a “disability” as defined in the relevant State legislation which provides:
disability, in relation to a person, means intellectual impairment, mental disorder, brain injury, physical disability or dementia.
The Appellants contend that the findings of the trial judge at paragraph 45 and paragraph 114 of her Honour’s judgment are findings which indicate that Jamie was not under a disability. Those findings were as follows:
45.Dr C was satisfied of Jamie's consistent and firm conviction that she is a girl within the body of a boy, and that all the information indicated a consistent female identification. He concluded that there was no evidence of any physical or genetic abnormality, nor of any other psychiatric disorder or major depressive or affective disorder. He had “no doubt” that Jamie meets criteria for the diagnosis of “childhood gender identity disorder (transsexual type).”
…
114.Jamie is a bright, happy, well-adjusted child from a loving family. She is blessed with a natural intelligence, a vivacious personality, thoughtful and caring parents, a loving supportive twin brother, and academic and musical abilities. The only area of difficulty for her in her childhood this far has been her long-standing gender identity disorder. ...
At first reading it may seem that there being no evidence of any psychiatric disorder or major depressive or affective disorder might support the argument that there is no disability. However the First Intervener submits that the diagnosis of childhood gender identity disorder (about which there was no dispute) is a “mental disorder” classified within the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, tenth revision (DSM-IV-TR) published in 2000 by the American Psychological Association. The DSM-IV-TR is a classification of mental disorders, and under “gender identity disorder” is a subcategory of “sexual and gender identity disorders” which classify it as a “clinical disorder”. Accordingly it is submitted that by definition Jamie has a disability, namely a mental disorder and hence comes within the jurisdiction and concerns of the First Intervener as set out under the relevant State legislation.
Thus, given the role of the First Intervener we do not think that the term “disability” in the State legislation should be narrowly defined and, in our view, there is scope for the definition of categorisation of gender identity disorder as a mental disorder within DSM-IV-TR to constitute a disability as defined by the State legislation We observe that in other cases such as [citations suppressed by Court Order] no objection was raised as to the intervention of the First Intervener on this basis.
Thus, we are satisfied that the First Intervener has the necessary legal interest to apply for leave to intervene, and the question remains as to whether that intervention is necessary because the other parties to the proceedings may not fully present all of the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination: Levy v Victoria (supra) per Brennan CJ at 603.
The Independent Children’s Lawyer indicated that the orders sought by the Appellants in the appeal will be opposed. However it is beyond controversy that the Independent Children’s Lawyer’s interest is the particular child in this case and submissions will be made by her on behalf of Jamie and not on behalf of children at large.
The Australian Human Rights Commission has indicated that it proposes to provide guidance to the Court as to what in the Commission’s view are the appropriate principles to be applied in determining the issues before the Court from a human rights perspective.
In particular, the Commission envisages that it would make submissions about issues including:
·whether authorisation is required if the child can give informed consent to the proposed medical treatment;
·if the child is unable to give informed consent to the proposed medical treatment the scope of parental power to consent to such treatment.
Whilst the submissions to be put by the Australian Human Rights Commission will undoubtedly overlap with those of the First Intervener it seems to us that the focus of the Australian Human Rights Commission is on the rights of the child or the children affected while the role of the First Intervener is arguably a different role concerning children with disabilities. In the context of this case the First Intervener’s submissions will be directed towards how a potential change in the law may affect not simply Jamie’s best interests but the interests of other children with childhood gender identity disorder. The First Intervener wishes to submit that whether a medical procedure is “special” requires a holistic consideration of medical, ethical, psychological and other factors and that the role of the Court in such cases is extremely important and should be retained.
In our view whilst some overlap may exist, this is a case where the Independent Children’s Lawyer and the Australian Human Rights Commission may not present fully all the submissions we should have. We agree with the submissions of the First Intervener that if there was a finding that childhood gender identity disorder is not a special medical procedure displacing parental responsibility there are important questions that will arise as to how the law will affect other children with such a disorder.
We turn then to consider the other matters that affect the question of intervention and/or whether the First Intervener should be allowed to participate simply as amicus curiae. The Appellants submit that if the Court determines it would be of assistance to have submissions on the appeal from the First Intervener, that the right to appear should be confined to an appearance as amicus curiae and that the submissions should be limited to Ground 1 of the grounds of appeal. The submission is put on the basis that the First Intervener is not really part of the litigation, rather the First Intervener simply wishes to assist the Court. In our view however that could also be said of the Australian Human Rights Commission.
The First Intervener indicated that she wished to put evidence before the Court as to the state of the medical evidence on childhood gender identity disorder in the form of an affidavit from a psychiatrist. This course is strongly opposed by the Appellants.
The issue of the evidence sought to be called on behalf of the First Intervener is controversial and the Appellants have submitted that they take issue with it and would wish to cross examine the relevant expert, and perhaps call further evidence as well. If we were to allow intervention under s 92 or an appearance by way of assisting the Court as an amicus curiae we would not permit the admission of such evidence for the following reasons:
a)The comments of Wilcox J in Bropho v Tickner (supra) at 172-173 are apposite. The arguments put are about the limit of parental responsibility. To allow evidence as to factual matters not canvassed at trial which are controversial would in effectively be to run a new and different trial which would impose additional costs and disadvantage on the parties.
b)There would in addition be practical issues arising such as the potential need to remit the matter to a judge at first instance to determine any factual issues which appear to us to inevitably arise if the First Intervener were permitted to call such evidence. It would unquestionably add to the cost and delay in the determination of the proceedings.
Nevertheless, we have formed the view that there is merit in permitting the First Intervener to make submissions in the case.
As to whether that should be as an intervener under s 92 or as amicus curiae, it is significant that under s 92(2) the Court can impose conditions on the intervention. Thus we propose to allow intervention under s 92 but under certain conditions.
The first of those conditions relates to the calling of further evidence, a topic with which we have already dealt. The second relates to the Appellants’ submission that the submissions of the First Intervener, if allowed, should be confined to Ground 1 of the appeal and not extend to Ground 3.
In their Summary of Argument in opposition to the First Intervener’s application the Appellants submit that the First Intervener had the opportunity to intervene and would have known that it was always open to Dessau J to authorise both Stage 1 and Stage 2 treatment. Thus the argument now sought to be put to the contrary could have been made at trial by the acceptance of the invitation to intervene, even if it was not apparent that Ground 1 was an issue.
We do not think the First Intervener can be criticised for not intervening in a particular matter in which, although they might not have agreed with the ultimate decision of her Honour, was clearly a decision to be made on the particular facts of that case. The question is whether the appeal now puts this aspect into a broader context. If the appeal is successful on Ground 1, and the Court determines that childhood gender identity disorder is not a special medical procedure which displaces parental responsibility to decide upon appropriate treatment, then the issue in Ground 3 does not arise because the parents will have the right to decide upon the appropriate treatment being treatment for Stage 1 and Stage 2. Ground 3 arises however on the basis that childhood gender identity disorder is a special medical procedure and the Court retains its jurisdiction to make orders about treatment.
In argument before us counsel for the Appellants said:
Ground 3 deals with the substantive issue which is relevant to this particular case, which is that her Honour should have ordered the stage 2 treatment at the same time. But that ground would be swept away if ground 1 succeeded.
(Transcript 24 November 2011, page 3, lines 38-41).
Counsel for the Appellants further conceded that Ground 3 is only relevant to this case and that:
We don’t want to argue that all parents everywhere should be in that position.
…
We simply submit that our clients should be in that position.
(Transcript 24 November 2011, page 4, lines 33-34 and 38).
Given that the issue of whether Stage 1 and Stage 2 treatment should be ordered by her Honour was a live issue in the case, was the subject of evidence and is specific to the facts in this case, we do not see how the Court would be further assisted by submissions by the First Intervener on this issue.
Accordingly we would allow intervention by the First Intervener under s 92(1) of the Act but, under s 92(2) provide that the intervention is limited to written and oral submissions on behalf of the First Intervener as to Ground 1 in the Amended Notice of Appeal and the First Intervener is not permitted to call any evidence in the proceedings.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 2 February 2012.
Legal Associate:
Date: 2 February 2012
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