Vitalis & Kazan (No 3)
[2022] FedCFamC1F 1080
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vitalis & Kazan (No 3) [2022] FedCFamC1F 1080
File number(s): SYC 2820 of 2022 Judgment of: ALTOBELLI J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant is a transgender woman – Where the applicant seeks leave to provide the single expert with social science research on the impacts on children with transitioning transgender parents – Order made for research to be provided to the single expert Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 8 December 2022 Place: Sydney Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Marsdens Law Group Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 2820 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VITALIS
Applicant
AND: MS KAZAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter is listed for mention on 3 April 2023 at 9:00am.
2.The Applicant is granted leave to make an oral application for orders contained in the document entitled ‘Minute of Orders’ provided to the Court.
3.The Applicant is granted leave to provide her affidavit sworn 11 October 2022 to the Single Expert Ms U, provided that paragraph 9 and annexure “A” of the affidavit are deleted before being forwarded to the Single Expert.
4.Leave is granted to the parties to provide to my Associate executed consent orders and, if appropriate, orders may be made in chambers and the adjourned date may be administratively vacated.
5.Leave is granted to the parties to apply to relist the proceedings on 7 days’ notice in the event that further orders or directions are required, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
THE COURT NOTES THAT:
A.The research referred to in the Applicant’s affidavit dated 11 October 2022:
(a)Does not purport to be a comprehensive coverage of the available research on the issue in question;
(b)Does not relate to the children specifically, but at best, children of transgender parents.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vitalis & Kazan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
I provide the following reasons for judgment. The substantive proceedings before me relate to two children – X, who is nine, and Y, who is five (“the children”). I previously made interim orders on 5 August 2022, the effect of which is that the children continue to live with the respondent, who is their mother (“the respondent”), and spend time with the applicant (“the applicant”). The facts of this case are, shortly stated, that the applicant is the children’s biological father who has transitioned gender and now identifies as a woman.
An expert report has been ordered, interviews have taken place, and the expert report is expected to be received in about six weeks’ time. Paragraph 7 of the terms of reference for the expert report states that the matters to be considered by the single expert report writer include: any current and/or likely future effects on each child and on the respondent of the applicant’s gender transition, and what, if any, professional support or assistance may be recommended for either party and/or the children arising from the applicant’s gender transition. This arises out of an issue that I raised and discussed in my reasons for judgment dated 5 August 2022 that resulted in the interim orders that were made.
In that context, the solicitor for the applicant seeks an order that leave be granted to the applicant to provide her affidavit, sworn 11 October 2022, to the single expert. The affidavit in question was filed on 11 October 2022 and consists of a total of 295 pages. It sets out the applicant’s efforts to research studies relating to transgender parents and the impacts of transitioning on the children of transgender parents.
In the exchange between the bench and the virtual bar table this morning, I made the observation that this was the first time in a long judicial career that I have encountered this issue. In researching my reasons for judgment in the interim application, I did look for other cases dealing with this issue and found very few cases, firstly, and none that would actually provide any guidance in this particular case. It is possible, therefore, that this is one of those areas that, for whatever reason, has not been explored in the family law jurisprudence. This means that the issue is important, certainly for the children in this case, but it also possibly has a broader relevance to the transgender community.
There are advantages and disadvantages of permitting this material to go to the expert. One possible advantage is that the expert is made aware of the research referred to by the applicant, including its limitations, such as the recognition that it does not purport to be comprehensive research and that there is an element of subjectivity in the selection of the studies that are referred to in the affidavit. Nonetheless, it puts on the table the issue of the potential significance of research about the impact on children of having a parent transition. There are also disadvantages. For example, it could increase the cost, it might lengthen the delay before the report is available, it might precipitate a similar application on behalf of the respondent, and it is possible that the single joint expert will choose not to consider the material. There are many unknowns.
On balance, in the circumstances of this case, I see more advantage than disadvantage in allowing this material to go through to the single joint expert, who can make of it as she chooses in her expert opinion. However, that will be on certain conditions and, specifically, that paragraph 9 and annexure “A” of the affidavit are deleted before being forwarded to the single joint expert.
Paragraph 9 is the paragraph referring to the spreadsheet which purports to summarise the relevant research, and annexure “A” is a spreadsheet that contains that summary. On balance, my concern is that the summary is potentially so subjective that it would be of greater harm than benefit to the single joint expert. I think, with hindsight, that the making of the order that is paragraph 7 of the terms of reference has opened the door for the present application. Nonetheless, I am satisfied that one of the critical issues in this case is precisely that raised in paragraph 7 of the terms of reference. I do not know to what extent this will increase the costs of the parties associated with the single joint expert report.
My recollection of the circumstances of the parties is that costs was not an issue that was particularly problematic. In any event, it is something that can be revisited at the conclusion of the proceedings. Therefore, I make an order in terms of the document, being the Minute of Order that I have marked “A”, initialled and dated today’s date. I add the following words: “with the exception of paragraph 9 of the said affidavit, and annexure “A” to the said affidavit”. I am also going to add a few notations. The Court notes that the research referred to in the said affidavit does not purport to be a comprehensive coverage of the available research on the issue in question. The Court further notes that the research does not relate to the children specifically but, at best, children of transgender parents.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 8 December 2022
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