The decay of the Family Court of Australia’s authority as an institution in the eyes of the citizenry has been a long process. Its recent deliberations in the case of “Kelvin” — a girl who wishes she were born a boy and seeks to change that — furthers the unravelling
In November 2017 the Full Court of the Family Court sitting in banco decided that the court should no longer exercise its parens patriae jurisdiction in cases involving children of one sex who have chosen to take drugs for the purpose of trying to change themselves into the other sex.
The case is described in the reports as “Re Kelvin”. The Austlii citation is (2017) FamCAFC 258.
In my view, this decision may signify the end of the community giving the Family Court qua institution the same kind of respect that, until recently at least (vide Victoria’s Supreme Court and sentencing) they have reflexively given superior courts. I am not referring to the individual members of the court as constituted on this occasion. I am referring to the court as an institution. The decay and unravelling of the court’s authority in the eyes of the citizenry has been a long process. Honourable individuals will continue to work within it of course, but this decision, in my opinion, does great damage to its credibility as a judicial body.
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It will continue to exercise extensive powers to alter the lives of children and adults under the Family Law Act 1975, but it can no longer have the same claim upon my respect when it does so. The quality of its curial pedigree has long been questioned. We should remind ourselves of the circumstances of its birth—the shabby hedonism and reformist chic of the Whitlam era and of its Attorney-General, Lionel Murphy (the personal certainly was the political in those days)—when we reflect upon its decline over the decades.
Given the nature of the jurisdiction it exercises, it was always unlikely that it would acquire the judicial gravitas of a Federal Court, say. It didn’t. It hasn’t. An analysis of this, the last in banco judgment it will hand down, surely (if the talk of the court being deprived of its independent identity is correct) might give us some idea where it has gone wrong as an institution.
“In these circumstances it is ‘inappropriate’ for this Court to answer questions 1 and 2. However, that does not mean we cannot in fact answer the questions; to do so is only ‘inappropriate’.” Indeed. That is from paragraph 102 of the judgment. It is as revelatory a place to start as any.
The court was not hearing an ordinary appeal. It was hearing a “Case Stated”. That procedure, common to most appellate courts, is intended to provide a mechanism for the judge in the court below—the one which first heard the case—to be given answers as to difficult legal questions before embarking upon the taking of evidence, often where there are conflicting previous decisions, or where a legal point is novel.
The facts on which the case is to be heard must be agreed—they must be “stated” by the court below. They must be actual facts, not hypothetical ones, and the legal questions must arise on those facts. If the judge below can’t state agreed facts and the inferences to be drawn from them (and the trial judge here was given more than one chance to do so), it is inappropriate for the appeal court to even begin to hear the Case Stated. The High Court has made that clear. A decision of the High Court when it was led by Gleeson CJ (and no court ever had a capacity for plainer speaking) and making that very point is referred to by the court—and then essentially ignored. That is what the passage set out above means.
What was so pressing and important a controversy that required a specially convened court of five to deal with a Case Stated in defiance of long-established authority?
The case involved someone of whom we would ordinarily say, “she was born a girl”; that is, Kelvin (a pseudonym for law-reporting purposes) was born a girl. By “we” I mean those of us who are not in a posture of unscientific and postmodernist rebellion against the still uncontroverted nature of biological reality (or assuming such a posture because certain people say they should). I make the assumption that “we” are constitutive of most of the readership of this article.
All five judges concurred in the orders made, differing only about a technical issue as to whether an earlier full court decision should be sidestepped or overruled. The plurality of the court, three of the five judges, describe that same nativity of the child at par. 24: “Kelvin was assigned female at birth in 2000.”
This judgment, then, drawing upon recent medical and academic fashions, apparently subscribes to the notion that children are not born male or female. Instead, they have their sex “assigned” to them at birth; they could be male or female, but someone—“we”, presumably—decided for them which sex they would be. And this judgment is all about the legal consequences of giving a child the right to undo that imaginary assignation by permitting them to ingest hormones designed to stop their body from exhibiting the genital and genitally associated characteristics entailed by their sex at birth and instead to exhibit the characteristics of the sex they never were but have decided they wish to be.
Put simply, the Case Stated inquired whether judges were now entitled to relinquish the responsibility, in gender dysphoria cases, under a jurisdiction they had once proudly appropriated and then jealously guarded, of ensuring that children were not subject to invasive and irreversible medical procedures unless it was in furtherance of their true welfare, even if the parents of the child wished the procedure to go ahead. A quarter of a century ago the Full Court of the Family Court claimed this jurisdiction in “Marion’s case”, one involving the sterilisation of a child. “Marion’s case” involved a person born a girl (and, rather uncontroversially, everyone involved simply wanted her to remain one). The case was not about gender reassignment. The Family Court claimed the jurisdiction even though it was traditionally an aspect of the jurisdiction of the supreme courts of each state of the Commonwealth (and still is). The High Court, on appeal, agreed that the Family Court had such a parens patriae jurisdiction and, in the language and with the deontological rigour we used to associate with those possessing high judicial office, identified the medical conditions and legal circumstances which ought to occasion the exercise of such a vital jurisdiction.
A few years later the Family Law Act was amended to give an explicit “welfare jurisdiction” to the court and the assumption of the parens patriae powers were given an unambiguous legislative imprimatur.
I was a youngish lawyer in the jurisdiction then. I remember that the appropriation of the jurisdiction by the Family Court was celebrated by legal academics (then, as now, tediously leftist, but in a less unlettered way then than now) and I remember working out why they did so. It was the assertion of state authority over parental authority that they liked. The Latin said it all—the court was the “parent of the nation” and it was ipso facto a good thing for the state to be the ultimate guardian of its children. Besides, the Family Court and the Act it administered had turned out—under Murphy and Bowen, but especially under Keating’s attorneys-general and those of Rudd and Gillard—to be the perfect theatre for the acting out of all manner of progressive and especially feminist enthusiasms in legal form, with terrible consequences for countless children and mothers and fathers, catalogued in vast parliamentary reports and experienced in countless private agonies. Broadening its jurisdictional reach was presumptively something that academics and those judges of the court who were more attuned to and accommodating of the zeitgeist—there have always been plenty of them and we all knew who they were—welcomed with enthusiasm.
How tellingly ironic, then, that the jurisdiction should be first narrowed (in a series of cases since 2004, noted hereunder) and now, in re Kelvin, repudiated altogether in all but physical mutilation cases (perhaps) because the court has progressively surrendered to an ideology more radically leftist still than the one of which the court was a favourite child for so long.
Reading the Marion High Court judgment from a distance of twenty-eight years one is very aware of how important—awesome, as one of the judges put it—is the responsibility parents have in making medical decisions which can inflict irreversible physical and psychological harm on a child, and how correspondingly grave and solemn a step it is for a court to exercise that responsibility in the stead of a parent.
This decision, which radically diminishes the requirement for courts to intervene in cases of a diagnosis of “gender dysphoria” and the need to even ascertain whether the child has reached a position of judgmental competence about such matters (the legal test is known as Gillick competence, after an English case of that name) is in my view based on the acceptance of the untested assertions and opinions of academics, agitators, and medical and quasi-medical hospital staff by a court which declined to actually ascertain the truth for itself by having those opinions and assertions tested by a court-appointed contradictor.
The judgment which referred the Case Stated to the Full Court contains references to “reports” and “opinions” of a psychologist and psychiatrist and endocrinologist but not to their evidence in court; there is a reference to the parent “giving evidence” but it is unclear whether that was in affidavit or oral form. The judge had amended his Case Stated six months after referring it to include a reference to facts agreed by all the parties to the case. The judge then made “confidentiality” orders suppressing even the identity of the solicitors acting for the various parties and of the various medical practitioners and even the state in which the proceedings took place; searching of the court file was not to be permitted without his permission. These very extensive orders are against a legislative background (section 121 of the Family Law Act) which already makes it an offence to publish anything which identifies a party to the proceedings.
This secrecy is part of the problem. How can any truly disinterested party wishing to be heard on what is being put to the court on the medical literature even know that such a significant process is afoot to change the law—on “agreed facts”—unless they are already within the circle of those doctors and activists with privileged access to the circumstances of the proceedings or have already been enlisted by someone within that circle?
This judgment is a public act which as much as any other public act of the last ten years tells us clearly that the Left’s long march through the institutions is over. They have won. They are now going about the battlefield bayoneting the prisoners. Shelley’s poets might have been the unacknowledged legislators of the world in the nineteenth century, but the leftist academics and agitators of the twenty-first century who have invented the idea that gender can be chosen at will (and by children, too, before they have even acquired the intellectual and experiential depth to properly exercise a discretion to choose their school) are the acknowledged authors, in my opinion, of the substance of this judgment; the court implicitly permits them to be so.
Gillick competence is no longer required to be the object of judicial scrutiny in the kind of treatments proposed here because of (per par. 82 of the judgment) “the apparent change in the nature of the treatment” for gender dysphoria adopted by the medical profession in recent (let’s be frank, very recent) years, or so it is said at least by those upon whom the court chose to rely.
In relinquishing its role, the court is not so much devolving power to parents (often, as here, a single parent) but to a cluster of medical and quasi-medical people (sometimes as well as a parent). I invite you to look at par. 10 for an unintentionally parodic account by the court of the members of the “disciplines” in the new “multidisciplinary” approach to “treating” gender dysphoria and see if for you, too, it brought to mind Polonius’s solemnly knowing catalogue of the different varieties of drama—“pastoral-comical, historical-pastoral, tragical-historical, tragical-comical-historical-pastoral” and so on.
Before describing just how profoundly the court allowed itself to surrender its precious authority in matters involving vulnerable children, I will say something about the increasingly fashionable (for it is fad, not fact, that has prescribed the development of it) mode of medical “intervention” in such cases.
First Phase. You start by blocking the release of the hormones that naturally accompany the onset of puberty—testosterone in boys and oestrogen in girls. That has the physical consequences you might expect but it has also psychological consequences you might not have thought about, especially the increased estrangement of a child, often already facing difficulties in socialising and dealing with parents, friends and peers because of the acute sense of self-consciousness experienced by nearly all of us at that age.
This is not something you would allow as a parent—let alone as the Super Parent of all children—without very careful reflection and consultation with those with psychological and medical expertise. You would be especially careful to give your child the time to simply grow out of any curiosity he or she had about the assumption of the habits and preoccupations and appearance of the other sex, just as children progress through all kinds of other fixations and enthusiasms. In other words, before you “treated” the child at all, you would wait and see what happened naturally as the child grew a little older.
The “treatment” available at public and teaching hospitals these days is, too often, of one kind only. It is designed to take your child further down the road to reject the sex which was fixed at fertilisation, and not to hold the line or assist the child in accepting their sex, the one they always will be; or to sceptically, and with eyes wide open, consider whether this gender experimentation your child is exhibiting has a broader and deeper psychological explanation in which sexuality is merely a component or a symptom or even, perhaps, a smokescreen.
Second Phase. If you are determined to facilitate the child’s “treatment”, then the next thing that will happen to your child is that he or she will be administered cross-sex hormones. Boys will be given oestrogen and girls testosterone. You will watch as breasts develop in the one, and voices deepen and body hair grows in the other. You are well down the road now; often, so far down you can’t turn back. And the child may be no more than twelve or thirteen.
Third Phase. The final phase is gender re-assignment surgery. You know what that is. It is grisly. Search the etymology of that word and decide for yourself whether the description “grisly” is an appropriate one. The provenance is said to be a word for something that, when you think on it, grates upon your mind. Indeed.
An earlier Full Court decision, re Jamie (handed down in 2013, so hardly one of great antiquity, though that is the impression those wishing to adopt the new treatment regime here tried to give) had said that if a child was not Gillick competent, court authorisation for Phase 2 is required; neither parental approval nor the approval of the medical “experts” was enough to enable the cross-sex hormones to be administered.
Re Alex, a Full Court decision made in 2004, had started the process of dismantlement when it said that court approval was no longer required for Phase 1. Re Kelvin, put simply, decides that court authority is no longer needed for Phase 2; and that Gillick competence no longer needs to be “tested” by the courts.
But Gillick competence was not in issue in this case on the facts stated here; the principal question stated by the first instance judge asked the court to say what the outcome should be if it were in issue, a hypothetical case par excellence, if ever there was. Hence, the “inappropriateness” of answering it, as noted earlier.
Well, it has been answered now, inappropriate or not. From the perspective of all of the intervenors in the case, it is mission accomplished. For vulnerable children, it is a hellish decision.
Wait now for Phase 3 developments, the mutilation stage. Should a vulnerable child have protection from the infliction of this treatment by its curial last-resort protector? Should his or her “consent” require the invigilation of that court? What answer will the Family Court give, do you think, if it considers that its only role is to uncritically accept the partisan opinion on this topic that is put before it?
I should tell you something about the “intervenors” in the case—those parties, other than the parent and child, who were permitted to make submissions and participate in the hearing. There was, of course, a gender advocacy/agitatory body, called Gender Agenda; the Human Rights Commission (HRC), naturally; the New South Wales Department for Community Services (DCS); the Royal Children’s Hospital, and the Commonwealth Attorney-General. The hospital would not go along with the jettisoning of the Gillick requirement (their argument got very short shrift), and the DCS raised an unlikely jurisdictional issue which, unsurprisingly, was rejected. Otherwise everyone was in furious agreement about how to proceed to treat this young woman. The Attorney-General’s counsel (paid for by you and me—mind you, so were the HRC, and if you live in New South Wales you paid for the child’s lawyer and the DCS counsel as well) helped clear all the legal hurdles to the satisfaction of the court.
No one spoke in defence of the existing law or against the controversial contentions as to the state of the medical literature. Not that you would even know (from the “facts” stated or from the Full Court’s own gloss on those facts), that there was a controversy. And that is unsurprising, because there was no contradictor appointed by the court at either first instance or on appeal to test the “evidence” on which the court relied to dismantle the final elements of the parens patriae jurisdiction of the court in this area.
The appointment of such an advocate ought to have been considered by a court sitting in banco on such an important aspect of its jurisdiction involving the welfare of children. He or she could have cross-examined witnesses on their expertise and their opinions in the light of alternative opinion in the literature (and there is no shortage of it). From amongst the paediatric profession the contradictor could have called other professional witnesses to give evidence about the “facts” which the first-instance judge determined had been established (by uncontested assertion); the court would have had the very great advantage in such cases of hearing from an experienced barrister a submission that was grounded on scepticism—on the testing of evidence—rather than merely the advancement of a cause which was ultimately the role of all of other advocates from whom the court heard.
The need for such assistance in a case like this should be self-evident (or as a self-represented litigant put it to me once when arguing a legal proposition, “It isn’t rocket medicine, is it?”)
The court ought to have appointed a contradictor, because it is the court which has the responsibility and the power to decide such important matters about children, not doctors or nurses or gender warriors or sociologists, feminist or otherwise. It is in courts that we repose our trust that there will be a dispassionate, rational and cautious analysis of fact and opinion before radical change is introduced and approved in the treatment of children.
Absence of a sceptical frame of mind is now notorious in medical and academic circles in matters involving gender but it is surprising, to speak candidly, to see such incurious acceptance of startlingly new and potentially dangerous departures from previous medical practice by the appellate division of a superior court, especially given that it was constituted by experienced and competent judicial officers.
What is it about the Family Court that leads it to the sanctioning of these modish enthusiasms?
We have been here before. In the 1980s and 1990s, when a tidal wave of sexual abuse allegations hit the shores of the court, it far too often accepted uncritically, or insufficiently critically, the “diagnosis” of such abuse on the basis of physical and psychological examinations and tests promoted as the science of the moment but then demonstrated to be flawed, with terrible damage done to fathers and children in matters where there was never any abuse. Eventually the methodology of the doctors and psychologists caught up with the science and the court followed. Then, there was the pervasive culture of the court, following the lead of the feminist social science of the 1990s, of a near-reflexive preference for the making of orders for non-shared parenting of children of separated families, a malaise only overcome by the major legislative reforms of 1996 and 2006, but always in danger of recrudescence every time a Nicola Roxon or a Mark Dreyfus gets the gig at the Attorney-General’s office.
There is another thing that really troubles me about this judgment and it is this. The judge at first instance amended the Case Stated to include a variety of academic literature relating to gender dysphoria and gave parties the chance to say which parts of it they had relied upon or drawn inferences from. The Full Court considered such material may not be admissible anyway and said it would not draw any inferences from it itself (par. 113).
Important to the conclusions they reached in this case, however, was acceptance of an account of important aspects of the current treatment of gender dysphoria in that very bundle of literature. That material made its way into their judgment even though, as just explained, nothing in it and no inferences that could be drawn from it were said by them to even be admissible. This, the one part of the bundle on which they relied, was an affidavit by Associate Professor Marian Telfer, and she had a definite position on all of the vital controversies in the literature. Her views were relied upon by the court in their accepting as ultimate facts the analysis of the work and outcomes of the Royal Children’s Hospital Gender Service in Victoria (par. 89), and her account of what were to be adopted as medical guidelines for treatment of gender dysphoria was adopted in the facts all of the parties had agreed (par. 8). However, the opinion of someone else on that list, Professor John Whitehall, Professor of Paediatrics at Western Sydney University, with five decades of clinical experience in the field, who holds very different opinions from those of Ms Telfer (see Quadrant, November 2017), was ignored by the court when it formed its views about the matters before it. He never had a chance to contribute to the “agreed facts”. His name was even mis-spelled when describing the bundle.
In any event, the Case Stated procedure was never appropriate in a case where so much turned on the claims as to the “advances” in treatment and diagnosis or indeed the very reality of the ailment being “treated”. The case should have proceeded to trial in the usual way and the existing law applied; any party dissatisfied with the result might appeal. That is how courts function.
Instead, what both the trial and appellate levels of the Family Court effectively permitted to happen in this case was the fast-tracking of a radical change to the existing law at the behest of a child and of activist intervenors. The only important “facts” in the Case Stated bearing on the proposed change to the law were, in fact, opinions, and they were, at the end as at the commencement of this process, wholly unchallenged and untested in cross-examination.
In my view, some features of this process bore little resemblance to any traditional judicial proceeding, the most troubling being a de facto delegation of decision-making about the major issues at stake to medical and quasi-medical and academic and quasi-academic persons, all of them studiously promoting only one side of a very complicated and controversial issue.
As a result, children at a vulnerable time of their development will now have to live with the consequences of embarking upon a hormone-ingestion regime which will radically distort their natural physical and psychical development, when the therapeutic worth of that regime compared with its risks—the proportionality that the conjectured “benefit” bears to the known and unknown risks—will never be scrutinised by the court. Not even the integrity of the child’s putative consent to the process will be examined.
Even given that it had allowed the Case Stated procedure to continue, albeit, by its own admission, inappropriately, the court could still have appointed a contradictor who would surely have brought to their attention the other sides of the argument in this crucial medical controversy. Had that happened, they would have learned four vital things.
Furst, the whole idea of gender being in any rational or meaningful sense a matter of choice and not biology is far, far from being a matter of consensus; this is supported by the position taken by the “bible” of psychiatry, the Diagnostic and Scientific Manual of Mental Health (DSM-5), which notes that in “natal adult males” gender dysphoria ranges from 0.005 to 0.014 per cent and, in “natal adult females”, from 0.002 to 0.003 per cent (DSM-5, page 454). Thus, if gender dysphoria exists in 1.2 to 4 per cent of children as, for example, the Safe Schools material claims, but is as rare in adults as reported in DSM-5, then the mathematical chance of desisting is at least 99.5 per cent. Where is this fact given any credence in the judgment?
Second, the treatment regime they have endorsed as the best available for gender-dysphoric children—closely mirroring the Dutch protocol, the three-stage process outlined above—is the subject of vigorous and widespread criticism in the literature. It is no more the subject of medical consensus than is the remedy which is its opposite—that of active reinforcement of the natal sex of the child—and less so than the wait-and-see approach (that is, giving children the chance to grow out of and turn away from a preoccupation with the assumption by them of the appearance of and habiliments of the opposite sex).
Third, the two major alternative responses to gender-incongruent behaviour just mentioned have significantly less risk of unwanted and serious side-effects. They have no risk at all of infertility, of course, which is the major physical risk to children in Phase 2 “treatment”, and that risk is still, on all of the available data, high.
Fourth, the Dutch protocol has not been around for long enough for any of the blithe assurances about risk-absence the court was given to be relied upon. The purported absence of side-effects from these treatments can therefore have no valid statistical meaning. For example, it is perverse to assert that there is little evidence of a desire on the part of children who have gone down the Phase 2 path to then want to desist from it, when most of those who have undergone the “treatment” are hardly even into their adulthood or in many cases have yet to emerge from their childhood. The preferred so-called “treatment” has barely been around as long as some of the infants it has been foisted upon. Many of the side-effects, of course, may well be irreversible. I warn readers of this judgment—especially legal practitioners—that they may well be shocked at the apparent credulity, in my opinion, of a superior court in accepting at face value the statements as to the absence of risk and other matters that it permitted to be put in support of this highly disputed protocol.
If the Family Court, one that has been granted the authority by Parliament to protect our children, has no interest in exercising that power, then Parliament should take the power away from it altogether; and, while it is at it, have a very close look at the institution itself and have the courage to bring the curtain down on its strange, harmful history. That truly would be in the best interests of our children.
Stuart Lindsay is a former Federal Circuit Court Judge who presided in more than two thousand Family Law Act cases and in many cases in other parts of the Commonwealth jurisdiction.