Cases published November 2017

Family Court of Australia- Full Court

Re: Kelvin [2017] FamCAFC 258 (30 November 2017)
Case stated – parenting – Gender Dysphoria – where s67ZC(1) and s69ZH of the Family Law Act 1975 (Cth) confer power on the Family Court of Australia to determine applications concerning the administration of Stage 2 medical treatment for Gender Dysphoria for children – where s49 of the Minors (Property and Contracts) Act 1970 (NSW) and s174 and s175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) do not affect these proceedings – whether the Court confirms its decision in Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547 (“Re Jamie”) to the effect that Stage 2 treatment of a child for the condition of Gender Dysphoria in adolescents and adults in the DSM-V requires the court’s authorisation pursuant to s67ZC of the Family Law Act 1975 (Cth), unless the child is Gillick competent to give informed consent (Question 1) – where this question can and should be answered by considering whether it is appropriate to now depart from Re Jamie in order that the law is able to effectively reflect the current state of medical knowledge – where it is unnecessary and inappropriate for the Court to find that Re Jamie is “plainly wrong” in order to answer the question posed – where there are legally relevant factual differences between the two cases, namely advances in medical science regarding the purpose for which the treatment is provided, the nature of the treatment, and the risks involved in undergoing, withholding, or delaying treatment – where the treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the court – where the answer to question 1 is “no” – whether it is mandatory to apply to the Family Court of Australia for a determination whether the child is Gillick competent where Stage 2 treatment is proposed, the child consents to the treatment and the parents and the medical practitioners are in agreement (Question 2) – where the nature of the treatment no longer justifies court authorisation and the concerns identified in Re Jamie do not apply – where the answer to question 2 is “no” – where it is unnecessary to answer questions 3 to 6 of the stated case.

Family Court of Australia

Tamal & Semak [2017] FamCA 972 (29 November 2017)
Contravention – where the father has failed to comply with orders to facilitate the return of the parties’ child from Country E to Australia – where it is conceded this is a more serious intervention – where the father has not established reasonable excuse – where the father has not taken reasonable steps to comply with the order – where alternate penalties to imprisonment are inappropriate in the circumstances – where a sentence of six months imprisonment is appropriate in the circumstances – where the father is to be released on compliance with the subject order – orders made accordingly.

Costs – where the contravention has been proved – where the father has shown serious disregard for court orders – where it is appropriate that the father should pay the mother’s costs as agreed or assessed.

Department of Family and Community Services & Wellington [2017] FamCA 892 (7 November 2017)
Child abduction – Hague Convention – where an application is made for the return of two children to the United Kingdom – where the mother opposes the application and claims that the father consented in accordance with regulation 16(3)(a)(ii) of the Family Law (Child Abduction Convention) Regulations – where the mother bears the onus of proving consent on the balance of probabilities – where clear and cogent evidence is required to establish consent – where the Court is not satisfied that the father consented to the removal of the children – orders made for the mother to return the children to the United Kingdom.

Federal Circuit Court of Australia

Marlow & Birkin [2017] FCCA 2781 (17 November 2017)
Mother removes child from Commonwealth of Australia – mother seeks to prevent order for child’s return relying on Child Protection Convention – Court’s jurisdiction regulated but otherwise exercisable.