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Special Medical Procedures, Gillick Competence and the Family Court

Where a ‘special medical procedure’ for a child is proposed, parental consent to the procedure will be insufficient and order of the Family Court will be required.

A special medical procedure is one that is invasive, irreversible, requires major surgery and where the consequences of the procedure give rise to a significant risk of making a wrong decision and a wrong decision carries with it grave consequences.

Special Medical Procedures, Gillick Competence and the Family Court

Examples of special medical procedures include:

  • Gender identity dysphoria (GID).
  • Surgical gender reassignment.
  • Heart surgery.

In June 2015 the Family Court was asked to determine whether a 16-year-old child, known as ‘Dale’, who was transitioning from female to male, was competent to consent to stage 2  of GID treatment (also known as ‘testosterone hormone treatment’).

Dale had already commenced stage 1 treatment (puberty suppression hormone treatment), for which a court order is not required.

As it was likely that stage 2 treatment would result in physical changes that would be difficult to reverse, stage 2 treatment is considered a ‘special medical procedure’ for which a court order is required.

Dale’s parents and his treating medical practitioners believed that Dale was, and should be, able to make his own decision about stage 2 treatment, without a court order being required.

His parents therefore sought a declaration that he be found to be ‘Gillick competent’ and therefore able to make his own decisions in relation to treatment.

In the English case of Gillick, it was held that … parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind …’

Gillick has been approved and applied by the Family Court of Australia since 1992 (Marion’s Case).

If a child is found to be Gillick competent:

  • The child may consent to the special medical procedure.
  • The consent of the child’s parents is not required.
  • A court order is not required.

So how does the court determine if a child is Gillick competent?

The court must have regarding the child’s best interests as the paramount consideration.

The child’s ‘best interests will be determined by a consideration of:

  • The age and maturity of the child
  • The views/wishes of the child
  • The urgency of the application

The court will consider the evidence as to the child’s best interests from:

  • The child’s parents.
  • Expert witnesses such as medical specialists, mental health professionals, counselors, etc.

Having regard to all of the evidence, and making a positive finding as to Dale’s ‘ … intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible … his views are clear and have not changed … ’, the court determined that Dale was Gillick competent and therefore competent to consent to the stage 2 treatment.

The special medical procedures jurisdiction of the Family Court is intended to protect against wrong decisions by parents that may result in irreversible wrong outcomes for children. The court has demonstrated a willingness to apply the provisions of the Family Law Act to these particularly difficult family circumstances with sensitivity, empathy and compassion.

Vanessa Mathews, accredited family law specialist at Mathews Family Law & Mediation Specialists, can assist with your questions about special medical procedures.

Can what I say during family dispute resolution be used against me in court?

The short answer is no – what is discussed in family dispute resolution may not be used against you in court.

First, what is said during this process is protected by rules regarding confidentiality. Statements that you offer to a family dispute resolution practitioner, or to your lawyer in front of a family dispute resolution practitioner are protected. Such a practitioner can only disclose statements made during a previous family dispute resolution session in a limited number of circumstances. For instance, if the practitioner reasonably believes disclosure is necessary to protect a child from harm, or to report or prevent damage to property they may disclose statements indicating such.

While rules of confidentiality are implicated, you should also know statements made in a family dispute resolution are also inadmissible in court proceedings. While there are a few narrow exceptions to this rule, you should be aware that statements made during a dispute resolution session are generally not admissible in court.

You’ve Tried Everything – Time for Family Court?

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews is an accredited specialist in family law, and has the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law & Mediation Specialists, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone

1300 635 529, enquiries@mflaw.com.au

Mathews Family Law: www.mathewsfamilylaw.com.au

Family Court of Australia: www.familycourt.gov.au

Federal Circuit Court of Australia: federalcircuitcourt.gov.au

Do I Need an Independent Children’s Lawyer?

 When there is a dispute over custody sometimes it is appropriate to have an independent children’s lawyer appointed. An independent child’s lawyer takes a proactive role and acts as an “honest broker” during custody proceedings as the child’s legal representative.

This person does not take instruction from the child, but rather they are to form an opinion after viewing the evidence and act in the best interest of the child. They are impartial, and are to ensure the child’s views are expressed in the proceedings, and make sure that all relevant matters are drawn to the court’s attention.

An independent children’s lawyer will not automatically disclose conversations with the child to the court. Rather, he or she will only disclose this communication if it is in the best interest of the child. However, if the lawyer determines that is in fact in the best interest of the child to share contents of the conversation with the court, it may do so even without the child’s permission.

When deciding whether the appointment of an independent children’s lawyer is proper, the court will consider a list of factors, that hail from a 1994 case.  Some of these factors include:

  • allegations of child abuse
  • intractable conflict between the parties
  • issues of cultural or religious difference
  • where the sexual preferences of one or both parents impinge on the child’s welfare
  • issues of significant medical, psychiatric or psychological illness or personality disorder relating to the child or the parties
  • where it is not appropriate for the child to live with either parent
  • the proposed separation of siblings
  • where one party wishes to relocate the child which would exclude the child from spending time with the other parent

An independent children’s lawyer is not necessary in most custody proceedings. Typically, they are only appropriate where the custody dispute is highly contentious, there are allegations of violence, or other extreme circumstances exist. If you think your case is one in which your child would benefit from representation by an independent children’s lawyer, you simply need to make an application to the court. Occasionally, the court will take action on it’s own initiative if it determines that doing so is in the best interest of the child.

Can I seek custody of my grandchild?

While there is no inherent right for grandparents to spend time with or care for their grandchildren, the Family Law Act does provide some protection for grandparents. When it comes to settling custody disputes, the court is always going to act with the best interest of the child at heart. Sometimes, this will require removing a child from the care and custody of a parent and placing that child with a grandparent. Although rare, circumstances do exist which warrant this type of action.

There are two ways in which a grandparent may seek a parenting order. The first is by making an application to communicate with and spend time with their grandchild. This type of application may be appropriate where a parent has chosen to sever are relationship with the grandparent, and is not allowing the grandparent to spend meaningful time with the grandchild. A grandparent may make this application regardless of whether the parents are separated or not.

The second action available to grandparents is to apply for an order seeking parental responsibility for the child. This action will only be appropriate in extreme circumstances, where both parents have proven they are unfit or unwilling to care for the child.

Grandparents who are concerned about visitation rights may rest assured that they are permitted to take action seeking visitation, and sometimes-even custody, of their grandchildren.  The guiding principle in custody actions is ‘what is in the best interest of the child,’ and the relationship between a child and their grandparent will certainly be considered. If the grandparents had historically been present and involved in the child’s life the court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the child spend time with the grandparent.

Custody: Does my child get to decide?

There is a strong preference in Australia for parents to reach an agreement regarding custody without resorting to litigation. In the hope of achieving this goal, parents are required to attend dispute resolution and make an effort to resolve any custody issues on their own.

If you are able to finalise custody through a parenting order or parenting plan, without going through litigation, your child’s wishes should certainly be a factor in how you determine custody. The guiding light when it comes to children’s issues is that you (and the court) should act in the best interest of the child. If your child voices a preference to spend more time with one parent, or there is a clear bond between the child and one parent, this should certainly be considered while you work out custody issues.

Both parents should work to reach an agreement that suits the needs of the child, and considering the child’s wishes is often the best way to determine what the best interests of the child are.

What if you aren’t able to reach an amicable custody arrangement and you require the court to determine custody? Will the court entertain your child’s preference to live with one parent over the other?

The answer is yes. The court must consider the views of the child in determining the child’s best interest. While it is not a requirement for a child to disclose his or her wishes, should they choose to express them, the court must consider them. However, simply because the child voices a preference for one parent, does not mean that parent will automatically be given preference in the custody dispute. The court will balance the child’s wishes along with their credibility. A child’s age and maturity are relevant factors in determining credibility.

So whether you plan to reach an amicable agreement with your ex-spouse, or if you must resort to litigation to decide a custody arrangement, the child’s wishes are of the utmost importance. Considering the child’s views is a necessary step in determining the best interest of the child.

Grounds For Not Returning Child to Home Country

State Central Authority & Papastavrou [2008] FamCA 1120

If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned.  This is a high standard to meet, and will only apply in exceptional circumstances.

In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.

During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.

The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.

In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether e