The case of Korrapati & Mishra [2021] FamCA 281, property proceedings had been commenced by the mother in February 2020. The father wasn’t legally represented in March 2020 when an interim order was made.
The mother gave an undertaking to return to Australia with the children for the purpose of family report interviews and any court hearings and as a result of the interim orders, the mother and the children returned to India.
The mother was also restrained by that order from taking any steps other than withdrawing the proceedings in any other jurisdiction.
The mother applied in December 2020 to have the parenting proceedings dismissed in Australia for want of jurisdiction.
The parents are both Australian citizens. The children were born in Australia.
The family relocated to India in 2014.
The parents separated and the father came back to Australia in 2016.
The mother commenced proceedings in the Federal Circuit Court of Australia.
The court set out as follows at paragraph 13:
“The following matters are not in contention:
At the time of the interim order the children were present in Australia;
The parties and the children are Australian citizens;
The father continues to reside in Australia;
The mother and children live in India;
The children are habitually resident in India;
The court had jurisdiction to make the interim order;
If the Court otherwise has jurisdiction, the fact that the children are not in Australia, does not preclude the making of a future parenting order;
A number of the paragraphs of s 69E(1)(a) to (e) Family Law Act 1975(Cth) (“the Act”) apply to the children;
A parenting order providing for children to live with or spend time with a parent is a “˜Commonwealth personal protection measure relating to a child’ as defined in s 111CA(1)of the Act;
India is not a signatory to the international treaty known as the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996[1](“the Child Protection Convention”);
Australia’s implementation of its 2003[2]ratification of the Child Protection Convention is to be found in Part XIIIAA of the Act; and
The consequences of the COVID-19 pandemic have impacted on the ability of the parents and / or children to travel.”
The mother made the concession that the court had jurisdiction to make the interim order.
The case turned on the operation of s.111CD(1)(e).
A constraint imposed by s.69E(1)(e) is that the children are not habitually resident in Australia.
The court was referred to Bunyon & Lewis (No. 3) [2013] FamCA 888:
“The mother argues that the question that arises by virtue of s 111CC of the Act, is whether it is necessary for proceedings to have been commenced in the non-Convention country before s 111CD applies.”
In summary, the mother submits that s.111CD(1)(e) applies “notwithstanding that proceedings do not appear to have been commenced in India and notwithstanding that the [mother] has previously “submitted” to the Court’s jurisdiction. On that basis, this Court will only have jurisdiction if the matters in section 111CD(1)(e) are established, that is, that the children are habitually resident in Australia”.
Carew J said:
“In circumstances where it is understandably not in dispute that the interim order was validly made by a court in the exercise of its jurisdiction,[9] it is difficult to understand the legal basis for the mother’s present application.”
Division 4 of Part XIIIAA was described by Tree J in Duckworth & Jamison [2014] 51 Fam LR 471 as it “does not confer jurisdiction but regulates the exercise of jurisdiction”.
At paragraph 36 of this Judgment, Her Honour said:
“Importantly, s 111CC sets out a limitation on the circumstances in which Subdivision B (Jurisdiction for the person of a child) in Division 4 of Part XIIIAA will apply.”
Explanatory memorandum in relation to s.111CCC was quoted as “Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country.”
At paragraph 43:
“Turning then to consider whether the relevant provisions of Part XIIIAA of the Act apply, I have been unable to locate any authority in which s 111CC is discussed in detail. However, I note that in Alfarsi [2016] FamCA 428, Foster J found that the relevant provisions did not apply in circumstances where, at the time of the hearing in May 2016, the children were living in Iraq (a non-convention country) and had been living in Iraq since September 2014.”
Carew J determined that the court does have jurisdiction and the mother’s application was dismissed and the parenting proceedings will be determined in Australia.
The case of Garston & Yeo No. 2 [2019] FamCAFC 139 is an interesting case as an appeal against a spouse maintenance order.
The applicant had applied for interim spouse maintenance of $2,500 per week. The trial judge wasn’t satisfied that such a sum was necessary to meet his reasonable needs.
A finding was made that his reasonable needs were $1,000 per week. There was no issue as to the capacity of the appellant to meet the payments.
In the appeal, the appellant claimed that the respondent’s evidence as to his needs was “weak, speculative and unreliable as to be unacceptable”.
Some expenses were not permitted, and some were reduced.
Paragraphs 29 and 30 of the judgment are of interest to practitioners particularly.
Paragraph 29 provides:
“A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d) of the Act) and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support.”
Further, in paragraph 30, the court said:
“It is reasonable to claim that you need more money than you are currently spending.”
The appeal judge quoted the trial judge.
The trial judge had considered that the respondent to the appeal had savings of $115,000.
The trial judge said:
“He has ongoing costs such as the costs of litigation, and his ongoing health needs which may require drawing on those savings.”
The trial judge had considered that the respondent should not have to draw on his capital.
At paragraph 39, the court said:
“It is clearly established that a person seeking spousal maintenance is not necessarily obliged to resort to any capital that they might have before they can receive the benefit of an order for spousal maintenance (Bevan & Bevan (1995) FLC 92-600; Mitchell and Mitchell [1995] FamCA 32; (1995) FLC 92-601). The existence of such capital is, however, a matter to be taken into account as the Full Court explained in Fewster & Drake [2016] FamCAFC 214.”
This Appeal Court reminded us:
“However, these two authorities do not establish that the capital of a person seeking spousal maintenance is always to be entirely disregarded. Rather, the point is that the possible need to retain that capital and not use it for day-to-day support is a relevant consideration to take into account.”
The case of Scarffe & Obannon [2020] FamCA 77, a first instance decision by the Honourable Justice Wilson is a useful and detailed resource for practitioners dealing with matters where there is international litigation.
The issue was the hearing of an interim defended application for an anti-suit junction. The court described it as:
“…the essential contest in this application was whether to stay or to dismiss this proceeding on the basis that it is clearly the inappropriate forum for the hearing and determination of property proceedings between the parties.”
The wife had already commenced property litigation in Singapore. The husband had sought to restrain those proceedings in Singapore without success.
The husband’s case was that the litigation in Singapore would not fully and exhaustively determine all property issues between the parties “because issues relating to superannuation fall for determination and only this court, says the applicant, has jurisdiction to determine issues for splitting Australian superannuation amounts.” The husband also pointed to the fact that the majority of the assets were located in Australia.
The husband sought a declaration that Australia is not a clearly inappropriate forum. He sought to restrain the wife from taking action in Singapore and other ordinary “applications in relation to valuation and disclosure”.
The court determined that the Australian proceedings should not be stayed or dismissed, that the Australian court was “not clearly the inappropriate forum” for the hearing and determination of the lis pendens between the parties, that the wife was to be restrained by an in personam anti-suit injunction in relation to the litigation in Singapore, and the matter would be managed by a registrar of the court.
The parties have three children. They have lived in the UK and Australia and moved to Singapore in 2014. The husband returned to Australia in May 2018. The wife and the children live in Singapore. Everybody is an Australian citizen.
The wife and the children have had dependency passes linked to the husband’s employment contract. The wife has her own employment pass until the end of 2020 but may not be renewed and significantly, the matrimonial property is located in Australia, including jointly owned real estate, funds in bank accounts, investments and superannuation. Not relevant to the central issue is the fact that the wife also has a 50% interest in her late father’s residuary estate.
In Singapore, the husband’s application was dismissed, and he did not appeal.
The wife provided relevant information about the history of the matter and how Singaporean divorce law applies.
While the wife had some funds in a bank account in Singapore, as well as her company, all joint funds are in Australia.
The husband pointed, at paragraph 18 of his affidavit, to the fact that the Singapore court may not make orders in relation to Australian property and it will not take into account the wife’s interest in her late father’s estate (the estate was said to be $11 million), the Singapore court may not take into account the period during which the parties lived in a de facto relationship which was between 1997 and 2014 and in Singapore, allegations of his conduct during periods of confusion in respect of his sexual orientation would be relevant.
The court determined that an important issue was the extent to which the Singaporean family law and the Australian family law are different. The court recorded expert evidence in Singaporean law.
An expert, Ms H, a registered legal practitioner admitted to practice in Singapore, provided information. She had been asked to provide a report “relating to the matrimonial dispute between the parties and the application of Singaporean matrimonial law”. She had been provided with a list of questions. She exhibited to her affidavit the letter of instructions. She provided a report. She received a further list of questions and responded and indicated that she understood the joint expert rules of the Family Law Rules.
The wife objected to the evidence indicating that Ms H was not an independent expert, as required, and the report had not been produced in a form as it needed to be.
The court read the report. The court extracted as follows:
“Several things must be said about the interaction between Singaporean family law and its application to the facts of this case. In no special order those matters include the following –
the procedure set out in s 112(10) of the Singaporean Women’s Charter, as recorded in paragraph 11 of the first report of Ms H has certain superficial parallels to s 79(4)of the Family Law Act yet no equivalent to s 75(2) appears to be relevant in Singapore whereas in Australia, s 75(2) factors are critical to property division cases;
in Singapore s 112(2) of the Women’s Charter has a parallel to s 79of the Family Law Act in that a threshold issue is whether the division is just and equitable, but under s 79(4) of the Family Law Act the fact-specific enquiry is significantly more sophisticated and intricate;
s 114(2)of the Women’s Charter has at its aim placing the parties in the financial position as if the marriage had not broken down whereas that is not a legislative imperative under the Family Law Act;
periods of marriage as well as periods of cohabitation unmarried are taken into account in Australian family law, a seemingly different regime to that encompassed by s 112(2) of the Women’s Charter, as explained at paragraph 19 of the Ms H first report;
the observations in paragraphs 30, 31 and 32 of the Ms H report about extreme and undisputed conduct is not the law of Australia, as I surveyed in Keskin & Keskin [2019] FamCA 384“.
The court then considered the Kennon & Kennon jurisdiction and set out the evolution of the learning and recorded position in relation to family violence in property division cases. That is extracted in paragraph 31 of this Decision referring to paragraphs 28 through to 40 of the case of Keskin & Keskin, a 2019 FamCA 384 case, which traced, significantly, the history of the Kennon & Kennon developments. I will provide a separate note in relation to that case.
Continuing the discussion of the differences and similarities between the two jurisdictions, the court considered that whereas in Australia, the irretrievable breakdown of a marriage is relevant, but that sections 95(3) of the Women’s Charter involves proof of one of five matters demonstrating the irretrievable breakdown of the marriage.
Australia applies a different test to determine the issues of forum non conveniens.
At paragraph 35, the court set out seven critically important matters in the comparison:
“35. The information given by Ms H was most helpful in this case and I have been assiduous to avoid reading those portions of the reports (where appearing in two letters) that applied the Singaporean law to the facts of this case. After all, that is my task. That said, several critically important matters arose from a better understanding of Singaporean family law compared to Australian family law. They include –
obtaining a divorce order in Singapore is more complex than it is in Australia;
periods of pre-marital cohabitation in Singapore may be treated differently than they would be under the Family Law Act;
the considerations in which the Singaporean courts engage in dividing property seem to be less intricate than are the considerations under s 79(4)of the Family Law Act;
under Singaporean law, no equivalent exists to the extensive array of matters that a court must consider under s 75(2)of the Family Law Act;
Singaporean courts have power to divide assets wherever located;
Singaporean courts have power to split superannuation without the complexities that attend superannuation splitting orders under the Family Law Act; and
an order of this court is amenable to enforcement in Singapore but in order to do so, except in relation to a maintenance order, a separate civil proceeding must be commenced instead of the precise order being registered and enforced as would a foreign judgment be enforced in Australia under the Foreign Judgments Act.”
Paragraph 36 of the judgment said as follows:
“The point of remarkable significance in this case is that no assets exist in Singapore beyond the respondent’s start-up business and an unknown sum in her bank account. Plus, the respondent and the children have no real connection to Singapore.”
The court had referred to the useful submissions that were provided and these are discussed from paragraphs 38 to 55 of this judgment and paragraph 56 of the applicable legal principles.
The court then discussed the applicable legal principles.
The court was making a decision in a contested interlocutory application. The court was aware that therefore the matter was “necessarily bereft of the detail and depth of examination of fact and law that will be undertaken at the trial of this proceeding”.
The court considered the “undesirability of judges, on the hearing of interlocutory applications, making findings of fact”. The cases referred to were Marvel & Marvel (2010) 43 Fam LR 348, Deiter v Deiter[2011] FamCAFC 82, Eaby & Speelman[2015] FamCAFC 104, Redmond & Redmond[2014] FamCAFC 155.
The court said at paragraph 61:
” I have proceeded on the basis on this application that any findings of fact have been made with great circumspection and only for the purposes of deciding this interlocutory application.”
The court then considered the anti-suit injunction.
The court referred to the decision of Hillam & Barret [2019] FamCA 193 which was a decision of the same Judge, the Honourable Justice Wilson. The reference was to paragraphs 40 – 64.
His Honour then restated the principles in this present case.
The two main issues were identified to be “this court’s power to make such an order” and “whether the jurisdiction should be exercised in the circumstances of this case”.
I refer the reader to the detailed discussion in the case.
At paragraph 46, the court discussed Lederer & Hunt (2007) 36 Fam LR 587. The court said:
“In that case the Full Court proceeded on the presupposition (in respect of which no party took issue) that in appropriate circumstances the Family Court had power to grant an anti”‘suit injunction, whether grounded in s 34 of the Family Law Act or in the inherent or implied jurisdiction of the Family Court to make necessary and appropriate orders so as to avoid injustice.”
In Lederer & Hunt, the Full Court addressed issues “about the equitable foundation for the grant of an anti”‘suit injunction”.
The court referred to a decision of Whung & Whung (2011) 45 Fam LR 269. This was a decision of O’Reilly J and the question that was adopted as that the relevant test is whether the local court is a clearly inappropriate forum.
“In answering that enquiry, a court determines the competing advantages and disadvantages arising from continuing with a proceeding in the selected forum.”
O’Reilly J held that was “relevant to consider whether jurisdiction exists in the court of another forum to deal with the same subject matter which is before the Australian court and the stage which that other proceeding had reached in that other forum”.
In this matter, at paragraph 54, His Honour found that he was not persuaded that this court was a clearly inappropriate forum.
The question of the jurisdictional basis for the grant of an anti-suit injunction was considered by His Honour in his judgment.
At paragraph 59, he made reference to Cole v Abati (2016) 55 Fam LR 329.
“There, the Full Court (Thackray, Strickland and Murphy JJ) made three important observations. First, the court referred to statements of principle in the High Court in CSR Ltd & Cigna Insurance Australia Ltd (1997) 189 CLR 345 to the effect that anti-suit injunctions can be granted either in the exercise of an inherent power to protect the court’s processes or in the exercise of the court’s equitable jurisdiction. Second, the court questioned whether the Family Court of Australia was a court of equity. Third, the court proceeded on the footing that it was open to the learned trial judge to grant an injunction in the same circumstances as an injunction could be granted by a court of equity. In the upshot, the Full Court dismissed an appeal from the trial judge’s grant of the anti”‘suit injunction.”
The Full Court has emphasised these questions:
“i) whether there in truth is but one controversy;
ii) whether complete relief is available in the local jurisdiction; and
iii) whether something is to be gained in the foreign proceeding.”
The court then considered Underwood & Underwood [2017] FamCAFC 267. The following passages were quoted:
“22. The matter came before the primary judge in a duty list and on the face of the material before the Court there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd[1990] HCA 55; (1990) 171 CLR 538 at 554.
23. The approach adopted by the primary judge was therefore appropriate.”
At paragraph 64, the court said:
“Self-evidently, it is undesirable for a proceeding to be on foot in Singapore in which the precise subject matter is being addressed as is being addressed in this court.”
At paragraphs 66 – 68, the court said:
“66. In my view, in this case it cannot be said that the precise same litigation is on foot in Singapore as it is in this court. While true, the Singapore court has power to grant orders in personam against both parties. Yet those orders are likely to be of little utility having regard to the fact that the majority of the property is in Australia. Enforcing any orders made by the Singapore court will be problematic in Australia whereas an order of this court is enforceable according to its terms without more.
67. It seems to me that even if all things were equal, and here they are not, the enforceability of orders of this court in respect of assets located in Australia renders this court the preferable forum over the court in Singapore.”
68. To my mind the appropriate way forward is twofold – first, to refuse the respondent’s stay application and second, to grant the applicant’s anti-suit injunction.”
This is a very interesting case and the detailed examination of authorities, the jurisdictional power, and the types of issues to be determined is of use to practitioners.
Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 2021 FCAFC 143
The case of Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143 at paragraphs 58 to 75 enters into a discussion of delegated federal judicial power that is now of increased importance for family law practitioners.
Windeyer J in Kotsis v Kotsis [1970] 122 CLR 69 at [91] made clear that judicial power is entrusted to courts, not individual judges.
He Said:
“…. judicial power can be delegated, but only in a manner that is consistent with its character as a power entrusted to a court.”
We are reminded “all federal courts are statutory courts and are subject to constitutional limits”.
Harris v Caladine reminds us that in the case of delegated judicial power, for the delegation of judicial power “to be consistent with the constitutional character of Federal Courts, the review provided for must be a de novo review by a judge”.
The 2021 case of Bechara v Bates [2021] FCAFC 34 said as follows:
“It is now an accepted incident of judicial power that it may be exercised in this way, namely by an order being made pursuant to a delegation, but only if the order may be reversed or otherwise corrected by a judge on review. In such cases, however, it is important to recognise that the review (or by de novo “appeal”) is not concerned with correcting error and in that respect is to be differentiated from the statutory rights of appeal that have gradually become an established part of the judicial system. Nor is it a review de novo as a further stage in a tiered process. Rather, the review is an attribute of a recognised mechanism by which the exercise of judicial power may be delegated to an officer of the Court who is not a judge, such as a registrar. The right to seek review attaches to the delegation and is an attribute of the nature of the delegated authority.”
“…the registrar’s order speaks as an order of the Court but only on the basis that it is subject to the prospect of subsequent review de novo by a judge.”
“On review, the Court hears the case again unaffected by what has gone before.”
What the case is wanting to make clear is that a review is not an appellate function.
At paragraph 64, “The ability to delegate the exercise of judicial power in the manner described is consistent with the nature of judicial power. Therefore, it is consistent with the constitutional character of a federal court for such delegation to be authorised by statute.”
An order made by a Registrar does not lose its past validity if a Judge on review decides on the review the order should not be made on the application.
An earlier order would be overtaken on review. The authority to delegate may be withdrawn. When a Registrar exercises administrative power, different considerations apply.
At paragraph 74, “….the delegation of judicial power is an important way in which to promote efficiency”.
At paragraph 75, “….in all cases, the parties (particularly the applicant) and the delegate must be conscious of the character of the delegation. If for some reason known to the applicant or the delegate it is not appropriate for the application to be determined by the exercise of delegated judicial power then that is a matter that should result in the application being referred to a judge for determination (without any prior exercise of delegated judicial power)”.
In the case of Grefeld & Grefeld and Anor [2010] FamCA 504, the Trial Judge dealt with the following fact situation.
The husband held a power of attorney for his sister. He applied money from her bank account to buy a house in the wife’s name. The wife didn’t know the source of the funds and the sister didn’t know about the transaction at all for many years.
Eventually, the Trial Judge determined that the property should be provided to the sister and the wife appealed.
The appeal was unsuccessful. The Trial Judge had said at paragraphs 122 and 123 of his Reasons, a discussion about the nature of the trust, whether it was resulting or constructive.
A resulting trust was described in this way from pages 660 to 661 in chapter 26 of Equity & Trusts in Australia:
“Where A makes a voluntary payment to B or pays wholly or in part for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption which presumption is easily rebutted either by the counter presumption of advancement or by direct evidence of A’s intention to make an outright transfer…
(b) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole of the benefit interest….”
Both types of resulting trust are traditionally regarded as examples of trust giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is constructive trust) but gives affect to his presumed intention.
At chapter 38 of the same text, His Honour records:
“The constructive trust is a means adopted by courts of equity to make persons accountable in certain circumstances where to do so is consistent with equitable principle. In line with equitable principle generally, what drives equitable intervention here is the departure from conscionable dealing, a point captured in the remark that “˜the basis of a constructive trust is that there is some factor in the circumstances which ought to act on the conscience of the person holding the funds or property the subject of the action’ that the notion of good conscience is “˜an infinitely variable concept upon which reasonable men and women and therefore reasonable judges may have widely divergent opinions’ does not, it is said, mean that intervention via a constructive trust is grounded simply on judicial whim of what is fair in any given case. Courts have recognised circumstances that raise the prospect of constructive trustee and outside those circumstances have searched for an equitable principle that aims to subscribe unbridled judicial discretion without unduly impinging flexibility.”
The Trial Judge made clear, still quoting from chapter 38:
“The main distinction between constructive trusts whether institutional or remedial and express and resulting trusts is that the constructive trust is imposed by the court on grounds ostensibly independent of the parties’ actual inferred or presumed intention (except regarding an anomalous line of authority recognising constructive trust pursuant to the common intention of contributors to property).”
Appeal
The wife argued that she was an innocent recipient of title untainted by knowledge about the sister being the source of the funds.
The Full Court, in their Judgment in the same matter, [2012] FamCAFC 71, discussed the concept of agency. At paragraph 74 they said:
“No formality is needed to establish an agency relationship. If the facts fairly disclose that one party is acting for another by the other’s authority, the agency exists. The creation of agency does not depend upon the principal’s conscious intention to confer authority upon the agent.”
The wife’s argument that she didn’t have any knowledge was dealt with in this way at paragraph 76:
“As against a third party, the law imputes to a principal knowledge gained by his/her agent in the course of, and which is material to, a transaction in which the agent is employed on behalf of the principal, under such circumstances that it is the duty of the agent to communicate it to the principal. The principal is precluded from relying upon personal ignorance of that knowledge.”
The Full Court considered resulting trust, the presumption of advancement, and constructive trust.
At paragraph 97, they said:
“A constructive trust differs from a resulting trust in that it is created by operation of law without reference to the parties’ intentions. The inquiry is not as to the actual or presumed intention of the parties but rather as to whether, according to principles of equity, it would be unconscionable to allow a legal owner of property to enjoy sole beneficial ownership of that property.”
In this case, the wife, “the principal becomes liable to the extent of the benefit received”.
Milton v Milton [2021] FamCAFC 64 is a parenting case that considers the concept of unacceptable risk.
Both parents lodged an appeal.
The mother appealed from two orders made by a Judge of the Family Court of Australia in September and October 2020.
The children the subject of the proceedings were born in 2007 and 2008.
The mother’s case was that the father posed “an unacceptable risk of harm to the children of sexually abusing them in the context of bathing them and co-sleeping with them”.
The Trial Judge did not consider that the father’s conduct was sexual abuse.
The Trial Judge did find that the mother posed a risk of psychological harm because of her fixed “and implacable belief that the father was a sexual abuser and paedophile”.
Final parenting orders provided that the children would live with the father, and he was to have sole parental responsibility for them. There was a moratorium on the mother from approaching the children or seeing them for a period of 90 days.
The resumption of the mother’s relationship was to be with the assistance of an after-care professional.
By February 2017, the mother had determined that the children were not to see their father.
The father commenced Family Court proceedings in Western Australia in mid-February 2017.
On the day the mother was served, she took the children “to their general practitioner and one child told the doctor that the father had “˜hurt his penis in the bath'”.
The children were subject to interviews and investigation and by August 2017, the father was provided supervised time.
After two attempts by the supervisor to collect the children, there were two occasions where the children refused to leave their mother’s home.
Therapy began in November 2017.
In August 2018, a second report was prepared.
The expert “opined that it was a significant factor for a child to have a false belief of sexual abuse and raised the question as to whether it would be in the best interests of the children for there to be a change of residence”.
By mid-2018, the mother moved to a different city and didn’t tell the father.
By May 2019, the children’s therapist published an updated report.
The expert prepared a third report on 8 April 2020.
The father lodged an appeal seeking to adduce further evidence.
The Trial Judge had identified the risk of future harm to the children in their mother’s care as a significant issue.
The Trial Judge determined that there was no cogent evidence in relation to the father but in relation to the mother, there was a significant ongoing risk of psychological harm.
The Primary Judge understood the difficulties of moving the children to the father’s care and “in short, Her Honour expressly weighed the short-term difficulties the children would experience and the risk of failure against the long-term disadvantage by being left in the mother’s care. Her Honour found that the change of residence was in the children’s best interest”.
The mother continued to clearly reject the expert’s opinion that the children had not been sexually abused.
The Full Court accepted that the Primary Judge’s findings were open on the whole of the evidence.
A costs order was made against the mother as her appeals were dismissed.
In the case of Oberlin v Infeld [2021] FamCAFC 66, the Full Court dealt with an appeal from parenting orders.
The mother appealed final parenting orders.
The orders conditioned “the circumstances under which the children could spend time with the mother, required her to seek therapeutic treatment and imposed conditions which must be met before she may file fresh proceedings to seek a variation of the orders”.
The appeal was allowed and three of the Federal Circuit Court orders made 10 September 2020 were quashed.
The mother did not seek to appeal the order making provision for the children to live with the father and for him to have sole parental responsibility.
Order 6, Order 19 and Order 20 were the subject of the appeal.
The mother’s psychological ill-health and the extent “to which it posed any risk of harm to the children” was the central dispute between the parties in parenting proceedings.
The father saw her as an unacceptable risk of psychological harm to the children. The mother accepted that she did have periods of ill mental health, but that she was not impaired in her parenting capacity.
The appeal was pitched at the orders that the Primary Judge put in place “to ameliorate the risk of harm”.
Grounds 4 and 5 of the appeal attacked Order 20.
Order 20 was made in the following terms:
“(20) Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement of order 6 above, upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:
(a) [The single expert psychiatrist’s] report;
(b) [The Family Consultant’s] family report; and
(c) these reasons for judgment.”
A notation was made to deal with a Rice & Asplund argument in the future saying:
“The mother, father and maternal grandparents shall not raise a Rice & Asplund argument in relation to any proceedings initiated by the mother pursuant to order 20 herein.”
The ICL had proposed an order in injunctive terms as follows:
“The mother, the father and the maternal grandparents shall not raise a Rice and Asplund argument in relation to future proceedings on the basis that, save for emergency situations there shall be no parenting applications for two years from the date of these orders.”
The mother complained that she hadn’t been provided with procedural fairness in relation to the order. The Full Court said:
“Once judgment was reserved and it occurred to the primary judge that an order in the terms of Order 20 ought to be made, it was not incumbent upon her Honour to re-list the proceedings and offer the parties and the ICL the chance to make more submissions about it. They already had that chance in final submissions when the issue of the ICL’s proposed notation was live. When critical issues in the subject proceedings are well known to the parties, the judge is not required to expose his or her thought processes or provisional views to the parties for their comment before making the decision (case cited Minister for Immigration and Citizenship v SZGUR [2011] HCA 1“.
The procedural fairness argument failed.
The mother then complained in Ground 5 of the appeal that Order 20 “was made without power”.
The Primary Judge “did not identify the source of power for the order”.
At paragraph 30, the Full Court said:
“Order 20 is styled as an injunction, but it could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, or to protect the marital relationship…. Absent any discussion and finding in the reasons for judgment about why the order would be “just or convenient”, nor could it have been an injunction under s 114(3) of the Act.”
At paragraph 31, the Full Court said:
“Neither could the order have been made pursuant to s 102QB(2)(b) of the Act… because no essential finding was made that the mother frequently instituted or conducted vexatious proceedings.”
The Full Court found that if it was intended to be made as a parenting order within the meaning of section 64B(2)(g)(ii) of the Act, “then the order goes further than that provision enables”.
In Betros & Betros[2017] FamCAFC 90, the Full Court considered an order made by a judge “restricting a litigant’s ability to commence fresh parenting proceedings without first undertaking therapy for two years and said this:
“˜…it is unnecessary to say much more than that caution should be exercised in crafting orders that are intended to delineate circumstances which arguably condition a party’s right to institute fresh proceedings to enable re-consideration of parenting orders.’
At paragraph 40, a discussion of the intention of section 64B(2)(g) of the Act was undertaken.
The Full Court decided:
“It is presently unnecessary to express concluded views on the breadth and complexity of orders which may be made in the form of parenting orders under s 64B(2)(g) of the Act because Order 20 is certainly not an order within the contemplation of that provision“.
The fifth ground of the appeal succeeded because it was accepted that Order 20 was ostensibly made “without power”.
There was then a comment about notations.
“Notations are not orders. The judgment of the primary judge is embodied only in the orders, which are explained in the reasons for judgment.”
The court said:
“Clearly, the terms of the notation cannot preclude a party’s legitimate recourse to applicable legal principles.”
The court also accepted that Order 19 was made without power. The basis was that the order “mandates the mother must receive counselling from the therapist recommended by the Family Consultant rather than by a therapist chosen by her in consultation with her own doctors”.
This is an interesting Judgement as it is now not unusual for parenting proceedings to be concluded on the basis that one parent or the other may engage in therapeutic assistance before being able to ask the court to reconsider the impact of their parenting and mental health interaction.
Neither party have felt much satisfaction in the outcome.
The husband and wife were married and then separated. There was a document that purported to be a pre-nup in place.
His Honour discussed relevant terms of the agreement.
The husband sought:
a declaration that the agreement was not binding;
further, or in the alternate, an order that the agreement be set aside or declared void under the provisions of sections 90K(1)(e) and 90KA.
He also sought money in the form of a cash payment from his wife, the possession of the dog and his costs.
The wife sought that the husband’s application be dismissed and that a declaration that, pursuant to section 90G(1B) be binding.
The first two of the husband’s orders were dismissed. This meant the technical attacks on the agreement were not successful. The balance of his application, that he be paid $1.5M within 28 days of the date of the orders was adjourned.
The wife’s orders were also both dismissed.
His Honour’s comment in relation to the wife’s orders is of most interest.
He said:
“The statutory scheme is complex. The declaration that is available under section 90G(1B) seems only to be available for the purposes of paragraph (1A)(d). That sub-section states that a financial agreement is binding on the parties to the agreement if the Court makes an order under sub-section (1B) declaring that the agreement is binding on the parties to the agreement. However, on the face of it, sub-section (1A)(d) is merely part of sub-section (1A), and thus all of the requirements of (1A) need to be met before the declaration can be made. On the facts of this case, paragraphs (b) and (c) of 90G(1A) are not established. Thus, 90G(1A) does not apply, and the declaration is not available.
The Court accepts, however, that the orders the Wife seeks are to be regarded as an enforcement application for the purpose of section 90G(1B).”
His Honour determined that section 90G(1B) is not an independent source of power to make a declaration.
His Honour found:
“Section 90G(1A) seems directed to the situation where one of the formal requirements of section 90G(1) have not been met, but the Court is satisfied it would be unjust and inequitable if the agreement was not binding.”
This is of interest to me as a practitioner and particularly in a context where the wife is described as being represented by family law experts.
Understanding and Navigating Informed Consent for Children and Parents
By Kay Feeney
Why is consent important?
Consent is the legal mechanism by which acts that could, at law, be assault or trespass become legal. The required standard is informed consent.
A person has to have information to be able to give informed consent.
As a lawyer in Australia, a good place to start is always with the High Court of Australia.
In Rogers & Whitaker [1992] HCA 58, the High Court applied the statement of King CJ from the Judgment of the Supreme Court of Canada in Reibl v. Hughes ((30) (1980) 114 DLR (3d), at p 13):
“What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.”
The High Court said of that:
“In our view, it is correct”.
The Court determined:
“There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended” ((33) Chatterton v. Gerson (1981) QB 432, at p 443).
The Court went on:
“But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.” (emphasis added)
The Court went on:
“… whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.”
…
“Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information.”
The Court went on:
“Consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed“ ((37) Chatterton v. Gerson (1981) QB, at p 443). (emphasis added).
“In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term “˜informed consent'” ((38) (1980) 114 DLR (3d), at pp 8-11).
The High Court agreed that the factors referred to in F v R by King CJ ((39) (1983) 33 SASR, at pp 192-193):
“…must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.”
This is how the High Court dealt with the Appellant’s argument on the issue of breach of duty.
By majority, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ dismissed the appeal.
Gaudron J said:
“I see no basis for treating the doctor’s duty to warn of risks (whether involved in the treatment or procedures proposed or otherwise attending the patient’s condition or circumstances) as different in nature or degree from any other duty to warn of real and foreseeable risks.”
The appeal was unsuccessful.
Can children consent?
Two important legal concepts in considering the issue of consent and children are the concept of the Gillick competence and the concept of the parens patriae jurisdiction.
The term developed as a result of an English case of Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. The Court, in that case, had to consider whether a doctor who prescribed contraception to a girl under the age of 16 years had committed an offence under legislation similar to sections of the Queensland Criminal Code. The doctor had in fact been charged with encouraging intercourse with a girl under 16 years and aiding and abetting unlawful sexual intercourse.
In that case, the Court decided that provided the child was sufficiently mature to weigh the advantages and disadvantages of the treatment, the absence of any parental consent did not render the doctor’s conduct unlawful. While not binding on Australian Courts, the concept has been very significant in the development of matters relating to medical treatment involving children in the latter part of their adolescence.
In Australia, at common law, a minor, that is a person under the age of 18, is considered to be capable of consenting to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed.
The High Court considered such significant matters in a case known as “Marion’s Case”. The citation, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA at 15, is an important decision.
It involved a case where a child who was, by the time of the appeal, 14 years of age. She was said to suffer from mental retardation. Different expressions were used throughout the case. She had intellectual disability, severe deafness and epilepsy and ataxic gait and behavioural problems and could not care for herself.
Her parents applied to the Family Court of Australia for an order authorising performance as a hysterectomy and an ovariectomy on Marion. Alternately, they sought a declaration it was lawful for them to consent to the performance of the procedures.
The Secretary of the Northern Territory Department of Health and Community Services supported by the Attorney-General of the Commonwealth argued that the guardian of a child has no power to authorise the sterilisation of a child and that application to a court for authorisation of such an operation is mandatory.
The appropriate jurisdiction to authorise the sterilisation of a child sat with the Family Court.
The parents argued that the involvement of the Family Court is optional and is of a supervisory nature only.
The Human Rights and Equal Opportunity Commission intervened in the proceedings pursuant to section 11(1)(o) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) on the basis that they had the capacity for such intervention with the leave of the court in “proceedings that involve human rights issues.”
The Commission argued that such a procedure could not be carried out lawfully without the authority of an appropriate judicial body. This requirement was a proper exercise of the parens patriae or statutory welfare jurisdiction of the Family Court.
The High Court considered matters of criminal consideration. The Court said:
“Sterilisation comes within the category of medical treatment to which a legally competent person can consent.”
The Court asked the question: “What, besides personal consent, can render surgical intervention lawful?”[1]
An adult with a permanent incapacity to consent to major medical treatment would be dealt with in the Northern Territory by the Adult Guardianship Act.
The Court had to consider what happens to a permanently incapacitated child. The Court examined the sources of parental power.
At paragraph 18, the High Court said:
“…the first issue relates to the important threshold question of consent: whether a minor with an intellectual disability is or will ever be capable of giving or refusing informed consent to sterilisation on his or her own behalf.”
A second question was considered: whether sterilisation fell into a special category outside the scope of a parent to consent to treatment. Should such an intervention be excluded from the scope of parental power?
In New South Wales and South Australia, the minor’s capacity to give informed consent has been regulated by statute. The Northern Territory where Marion’s Case arose still applied the common law.
The High Court referred to Gillick as “of persuasive authority”.
The High Court quoted Lord Scarman at [29] ibid at pp 183 – 184:
“Parental rights … do not wholly disappear until the age of majority. … But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.”
The Gillick concept is not related to a fixed age.
Generalisation was considered to be between the ages of 11 and 14. There was a recognition that there is a need for future as well as present assessment in the case of children with intellectual disabilities.
The Court said:
“The capacity of a child to give informed consent to medical treatment depends on the rate of development of each individual. And if Gillick is taken to reflect the common law in Australia, as we think it now does, these propositions are true as a matter of law in the Northern Territory.”
Marion’s Case is an extremely interesting and significant decision.
The concept of Gillick competence has developed significantly in our jurisprudence.
In the paper, “˜Refusal of medical treatment – A Child’s Prerogative‘ by Pip Trowse (Associate Lecturer, Health Law Research Program, Faculty of Law, Queensland University of Technology) considered whether the decision of a “˜Gillick competent’ child can and should be overridden by the Court.
It is important to understand and remember that the parens patriae jurisdiction is a discretionary jurisdiction, which means that just because the power exists does not mean it is always appropriate to apply the power.
The concept of consent is seen as transforming what might otherwise be unlawful into acceptable contact. A patient must have the requisite capacity to consent to treatment. As said by the author, “A child is presumed incompetent unless he or she satisfies the test of “˜Gillick competence'”.
In deciding whether a person has the capacity to make the relevant decision, it is important for them to be able to have the level of competence required to make the decision. The greater the risk, the greater the competence required because of the significance of the consequences. A decision which has minor consequences is considered to require less capacity.
In essence, what is the respect that should be granted to a child who has been determined to be “˜Gillick competent’ in their decision making.
Whether a child is Gillick competent depends on an array of factors. There is no required test medical practitioners must ask themselves, however the factors the Court will consider (and so medical practitioners may be guided) are whether the child is:
Able to comprehend and retain both existing and new information regarding the proposed treatment;
Able to provide a full explanation, in terms appropriate to their level of maturity and education, of the nature of the proposed treatment;
Able to describe the advantages of the proposed treatment;
Able to describe the disadvantages of the proposed treatment;
Able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with the proposed treatment;
Able to understand that the decision to proceed with the proposed treatment could have consequences that cannot be entirely foreseen at the time of the decision;
Able to understand that the proposed treatment will not necessarily address all or any of the psychological and social difficulties that she had before the commencement of treatment;
Being free to the greatest extent possible from temporary factors that could impair judgment in providing consent to the procedure.
So, what happens if a child is “˜Gillick competent’? Will the Court then accept the child’s decision?
The answer was given by the Full Court of the Family Court of Australia in Re Jamie (2013) FLC 93-547 and is effectively this. If a dispute involves not only the Gillick competence of the child, but administration of the proposed treatment, then the Court should not only make a finding as to Gillick competence but also the form the treatment should take having regard to the best interests of the child and give significant weight to the child’s views in accordance with the child’s maturity and level of understanding.
So, whose consent is required to perform a medical procedure, and what if one or both parents object to treatment? The required consent of the child, parents and doctors, was usefully summarised in Re Imogen (No. 6) [2020] FamCA 761. In that case his Honour considered that the Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave (Re Marion).
Re Imogen involved a child aged 16 years and 8 months diagnosed with gender dysphoria. Her father consented to the treatment. Her mother disputed the diagnosis and whether she was Gillick competent. The Court ultimately approved the treatment, accepting the evidence of her treating psychiatrist over the opposing expert. Justice Watts comprehensively considered the evidence.
At the end of the day, Imogen’s doctor addressed their evidence in accordance with the 8 elements of Gillick Competence and, quite frankly, had more interactions, observations and assessments of Imogen than two electronic interviews. The competing expert “had already generally formulated reservations about an adolescent’s ability to understand all the ramifications of gender affirming hormone treatment”.
Watts J reviewed recent authority and concluded that the three stages of treatment of gender dysphoria do not require court approval where each parent and the medical practitioner agree the child is Gillick competent.
However, his Honour held that an application to the Court is mandatory if a parent or medical practitioner disputes:
The Gillick competence of the child; or
The diagnosis of gender dysphoria; or
The proposed treatment for gender dysphoria.
Ultimately, in order to avoid the Court, consent if required from both parents, and the child if both parents and the relevant medical practitioners agree they are Gillick competent. There is of course the obligation on medical practitioners not to administer treatment in certain circumstances.
But not all treatments can be consented to, even by everyone involved. The Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave. For instance, the non-therapeutic sterilisation of an intellectually disabled child in Re Marion.
These principles can be applied to other medical procedures and treatments.
The first question to ask is whether the proposed treatment is therapeutic. If it is not, then an application to the Court will be mandatory. For instance, the sterilisation of an intellectually disabled child without any therapeutic benefit.
The second question to ask is whether both parents and the medical practitioner(s) agree (a) to the treatment and (b) whether the child is Gillick competent and if so then (c) whether the child agrees to the treatment.
Mandatory applications include treatments that are non-therapeutic and treatments to which either parent, the medical practitioner or a Gillick competent child do not consent.
If a parent does not consent to a child’s treatment, a medical practitioner should not administer treatment to a Gillick competent child without court authorisation.
So, in cases in which a dispute arises, who can apply to the Court? The obvious parties are the parents.
In many special medical procedures cases other parties include public authorities or organisations dedicated to the welfare of vulnerable classes of children including transgender person. For example, in Re Kelvin [2017] FamCAFC 258 the applicant was the father, and the intervening parties were the Australian Human Rights Commission, the Department of Family and Community Services, the Attorney-General of the Commonwealth, the Royal Children’s Hospital and a private organisation called A Gender Agenda. All but the Attorney-General required leave to intervene. A Gender Agenda’s website describes itself as:
A unique community organisation actively engaged in increasing public awareness and understanding of intersex, trans and gender diversity issues. In addition to training and education, we provide advocacy and support services, information and resources and are actively engaged in human rights and law reform.
If a medical practitioner is unable to administer treatment, the situation can be reported to the Department of Child Safety, Youth Justice and Multicultural Affairs requesting that an application be made urgently to the Family Court of Australia. Theoretically medical practitioners themselves can make an application as a person concerned with the care, welfare and development of the child. However it would not be without cost to the practitioner.
Bell v Tavistock
The High Court of Justice of England and Wales recently heard an application for judicial review of the practice of health services prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria: Bell v Tavistock [2020] EWHC 3274.
The application was brought by the mother of a 15 year old patient on the waiting list for the NHS Gender Identity Development Service. At the time of the hearing the other claimant was an adult who was prescribed puberty blockers by GIDS at the age of 16, had a double mastectomy at 20 and now regrets transitioning.
As the case was brought by way of judicial review, the Court did not undertake a detailed analysis of the facts of an individual case. The Court was asked to consider generally at what age a child could consent to using medication for the purpose of suppressing puberty, commonly referred to as “˜puberty blockers’.
The Court considered whether or not a child could competently understand both the immediate effects of the use of puberty blockers and the long-term consequences of using puberty blockers. The Court considered the following at paragraph 134:
Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve. This means it is, in our view, properly described as experimental treatment.
The Court was forced to look at the issue of the use of puberty blockers as a unique issue and could not simply apply the same thought processes that could be applied to the use of more traditional medication. However, the Court also acknowledged that the fact that a treatment is experimental, and the long-term consequences unknown, does not prevent informed consent from being given.
The Court also acknowledged that that the children who were seeking access to puberty blockers were highly vulnerable and may often seek to use the medication to stop their immediate suffering without adequately considering the long-term effects, particularly on their fertility and sexual function. At paragraph 144 the Court said:
We do not think that the answer in this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.
As in most public concerns cases, the “floodgates” argument was made. The Court effectively concluded that the interests of individual children ought not accede to concerns of the impacts on the justice system:
The position of the defendant and the Trusts is that they consider it would be an intrusion into the child or young person’s autonomy if a decision about treatment with PBs were to be made by the court not by the patient. They are concerned about the use of NHS and court resources if these decisions have to be made by the court. We do not consider that this is the correct approach. In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take PBs. There is a real benefit in the court, almost certainly with a child’s guardian appointed, having oversight over the decision. In any case, under the inherent jurisdiction concerning medical treatment for those under the age of 18, there is likely to be a conflict between the support of autonomy and the protective role of the court. As we have explained above, we consider this treatment to be one where the protective role of the court is appropriate.
The Court did not support the practice of NHS GIDS:
… The problem is not the information given, but the ability of the children and young people, to understand and most importantly weigh up that information. The approach of the defendant appears to have been to work on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency. As we have explained above, we do not think this assumption is correct.
As to under 16s, the Court said:
… There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
Ultimately, the Court made a finding that a child under the age of 16 may only consent to the use of puberty blockers if they could demonstrate adequate competence:
A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. …
But the Court encouraged judicial oversight even for over 16s:
In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.
That was in light of what their Honour’s had earlier said:
We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.
We express that view for these reasons. First, the clinical interventions involve significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons. The treatment involved is truly life changing, going as it does to the very heart of an individual’s identity. Secondly, at present, it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment.
This line of reasoning conforms with the Australian approach. If the clinicians and the parents agree that the child is Gillick competent, then there is no need for judicial intervention. If there are any concerns at all however, whether from the clinician, parents or child, the Court’s involvement is necessary.
Parens Patriae
The idea of the parens patriae jurisdiction has developed over time. The Court of Chancery at one time were the guardians of infants whom it made its wards. The Court has assumed that the parens patriae jurisdiction extends to protecting “˜Gillick competent’ children where the child has made a decision which will seriously jeopardise the child’s health and survival (Trowse, Vol. 10, No. 2, QUT LJJ).
The Australian Courts have indicated a preparedness to do so. The guiding principle is always that the welfare of a child is paramount and that the “protection of the child should be elevated above all other interests”.
Section 67ZC of the Family Law Act provides a power to the Court in addition to the power to make a parenting order in s.65D. A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. Section 67ZC says the Court also has jurisdiction to make orders relating to the welfare of children. The difference appears remarkably unremarkable.
In Re Kelvin in assessing its jurisdiction to make a declaration that a child is Gillick competent, the Full Court of the Family Court of Australia reviewed the Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth) which in discussing s.67ZC of the Act, at [319] states: This jurisdiction is the parens patriae jurisdiction explained by the High Court in Re Marion.
If a special medical procedure is required but the child’s parents fail to authorise the procedure, the court may provide authorisation: Re Marion per Brennan J at [31]. Birkett v Director General of Family and Community Services involved the administration of a blood transfusion to an infant notwithstanding written notification from both parents withholding consent on religious grounds. Without consent, or some lawful excuse, the act would constitute an actionable claim in battery. His Honour Bryson J of the Supreme Court of New South Wales held the treatment was authorised in the circumstances of urgency in which an application to the Court by the doctors was not practical. Bryson J considered that decisions relating to children are ordinarily left to parents, but that power is not absolute. Parental decisions concerning the welfare of children may be overridden by orders exercised by the Court in its parens patriae jurisdiction.
So, Australian Courts assume that the decision of a “˜Gillick competent’ child can be overridden by a court of law (Trowse).[2] Trowse states an examination of the case law reveals the court has rarely done so, the basis being that even though a child is “˜Gillick competent’, they are nevertheless a child.
The paper by Trowse suggests that it is inappropriate for the Court to override the decision of a “˜Gillick competent’ child. The decision that a child is “˜Gillick competent’ means that the child has the decision making competence of an adult. In the Gillick case itself, the child had to demonstrate sufficient maturity and intelligence to fully understand the proposed treatment.
Sometimes, the legislation excludes the capacity of a review of a child’s competence as “˜Gillick competent’. If there is no legislation, then the assessment is that a child is “˜Gillick competent’ or not. There is, however, the assumption that the Court can exercise the parens patriae jurisdiction as a discretionary jurisdiction regardless of the analysis of competence.
In Australia currently, the position is that there are limits to the autonomy in the decision making process of the “˜Gillick competent’ child.
In addition to considering issues of age, “˜Gillick competence’ and the parens patriae jurisdiction, it is also important, I think, to consider what we, in Australia, have determined to be the minimum age at which children can be arrested for, charged with or convicted of a crime. In Queensland, the age of criminal culpability is currently 10 years of age.
As arises in the medical environment, a very difficult area is to deal with the transition from childhood through the maturity and the recognition that at one end of the continuum there is the need to protect, and at the end of the continuum there is the need for responsibility to be assumed.
Bluntly, choices have consequences and the goal is to ensure the choices made by children are in their best interest.
Children who make bad choices.
In Queensland, section 29(1) provides that a person under 10 years is not criminally responsible for any act or omission (Criminal Code Act 1899 as amended).
A contrast to this is the reality that on 20 November 1989 the UN General Assembly adopted the convention on the rights of the child (CRC). There was an international recognition that childhood is a period of special care and assistance.
The interest of the child is the primary consideration in all decision making (Article 3) and any arrest, detention or imprisonment is only a last resort and for the shortest period of time (Article 37).
The difficulty is that an age level does not reflect emotional, mental and intellectual maturity.
In Australia, we have an over-representation of Aboriginal and Torres Strait Island offenders and these children, across all age groups, are more likely to have a Supervised Youth Justice Order than an Unsupervised Order.
This is based on the Department of Justice and Attorney-General Youth Justice Annual Summary Statistics 2011/2012 to 2015/2016.
Children have a limited ability to remove themselves from negative influences and environments. They have a limited capacity to overcome on their own socioeconomic disadvantage.
Children who have experienced poor parental supervision, harsh or punitive discipline, rejecting parental attitudes, or physical abuse are more likely to engage in criminal behaviour than other children – AEBI, M. 8L 2014 – “Problems, coping skills, psychosocial adversities and mental health problems in children and adolescents as predictors of criminal outcomes in young adulthood” – European Child and Adolescent Psychiatry Vol. 23 pp 283 to 293 at 284.
The proposition then is that consent which transforms an illegal act to a legal act is influenced by age, competence, and is supported by the parens patriae jurisdiction in the Family Court environment dealing with health issues but within the criminal justice system is, at the moment, defined by age. Those children can make bad decisions without protection from age 10.
It is interesting to note that you certainly come of age in terms of legal culpability much more readily than you come of age in having the right to make decisions about your own health.
How do you have confidence in the capacity to consent?
How is it best to analyse the complexity of a decision? Is it analysed with reference to the consequences or the concepts involved?
There is to be rigidity of age in legal culpability. Should there be a consideration of legal age in determining other decision making rights? The “˜Gillick competence’ test and its acceptance in the Australian jurisdiction would propose that that is not relevant.
Does a “˜Gillick competent’ child or a child of a particular age have a right to determine their own medical privacy? In Queensland, the privacy law pertaining to disclosure of children’s health information requires medical practitioners to determine the capacity of the child on a case by case basis. That is, there is no age restriction.
At the age of 14, a child can control what goes into, and who has access to the National Electronic My Health Record system.
A child can obtain their own Medicare card when they are 15.
Best practice in documenting consent
Currently, the usual practice in documenting consent is to ask a patient to sign a consent form. A parent may sign the consent form for a patient under the age of 18.
In a world that now accepts a Will can be made by leaving a message on a mobile phone and where there is an increasing recognition of the normal use of technology, is it reasonable to add a video or voice recording as a means of documenting consent?
Consent is often thought of as oral or written, with the latter tending to be the preferred form.
It is important to remember, particularly in the medico-legal realm, that in whichever form consent comes, consent is a mere concept capable of documentation. The document is not the consent. The patient gives the consent. A document purporting consent has been given may not have been properly, competently, given. The circumstances leading to the communication of consent is just as important as getting the go-ahead. That is because consent is not really consent unless it is properly informed.
Often the requisite information given to the patient is written, and then signed by the patient, for example, medical procedure consent forms.
But when it comes to assessing the competence of a child to give consent, is written text, or memory of conversations, sufficient? In a world in which it seems every device has a camera, why is it that consent is not recorded by audio-video?
In assessing a child’s competency, it would be farcical to presume a child the subject of competence assessment does not understand the reason for being asked specific questions directed to their capacity to consent. Tone and body language might be just as important as the words spoken. Why not conduct an interview with a child for the purpose of ascertaining their competence to consent recorded by video camera, questions, answers, and conversation?
It is common in parenting proceedings for parents to adduce as evidence video recordings of things children say at their home, and of the conflict between the parents which occurs at changeovers. Usually the recordings depict conflict perpetrated solely by the other party. Courts are often reluctant to give weight to video recordings where one party has control over the context of the recording. In other words, videos in this context are often an unrealistic, inaccurate, or unreliable record of events.
Those issues however can be mitigated in the confines of a medical practitioner’s office. Much like an interview conducted under s.93A of the Evidence Act 1977 (Qld), often by police.
The benefits of a video recorded interview process opposed to the written information form is perhaps best evidenced in the context of different cultures. It is common for some cultures, or people for whom English is a second language, to acquiesce, agree or consent to things little about which they know or understand.
Cultural context
There is always a cultural context. Parents and children whose demographic are associated with habitual interaction with authority with confidence are more likely to assess consent without the distraction of power imbalance, incomplete language competence and fear of consequences.
Sometimes the relative power imbalance is between parent and child. In circumstances where a child’s informed consent is appropriate and required, there must be measures in place to satisfactorily convey the requisite information to the child as well as place the child in an environment in which the child is comfortable expressing their perspective. It may be an insufficient environment to simply restrict physical proximity. No one measure will adequately account for the possible cultural complications a medical practitioner will encounter.
The medical practitioner must be able to make the information accessible to the particular patient. That is the obligation cast upon them by the court and their professional obligations.
[2] Trowse, P. (2010) Refusal of medical treatment – a child’s prerogative? 10(2) Queensland University of Technology Law and Justice Journal, 191-212.
The decision of Jackson & Whiteman [2021] FamCA 280 is a very brief but important parenting decision.
Parents lodged Consent Orders and their Application for Consent Orders was dismissed. It was dismissed because the court was not satisfied that it had enough information to determine whether the Orders were in the best interests of the children.
At paragraph 2, His Honour said:
“The Court is not simply a rubber stamp. It appears that the parties may not have current concerns such as those the mother raises about the father’s violence in the past. It is submitted on the father’s behalf that these matters are historic.”
He said further:
“I cannot, in my view, properly assess the issue of risk posed by the father on the basis of his violent conduct in the past without having much more information about that.”
He said further:
“In all of the circumstances I am not satisfied on the information available to me that these orders are in the best interests of the children, primarily because I am unable to make an assessment of the potential risk posed in the parenting arrangement that is proposed. For these reasons the application is dismissed.”
This is an interesting Judgment because clearly when a parent has raised factual or alleged matters of family violence during the course of a case, they cannot simply resile from a position of concern when an agreement is reached. The court will also want a justification of any concession framed against the reality of risk proposed by parenting orders.
