Decisional Privacy and the Rights of the Child

5 December 2022

Book launch, Melbourne Law School, University of Melbourne

by

The Honourable Justice Wilson
QC, LLM, PhD Professor of Law Deakin University
Justice of The Federal Circuit and Family Court of Australia (Division 1)

Introduction

1. It is a great privilege to be at this fine tertiary institution at this very significant event.
2. The timing of Dr Dimopoulos’s book could not have been more perfect – we are cleft by crisis in the family law system at present.  Family violence is in the news most days. Gender dysphoria is no new thing. The family structure is under enormous pressure. Misinformation and a wholesale lack of information bedevil effective and time responsive approaches by the courts. With something as critical as a child’s future, instruction and information from all and every source is most welcome.
3. This book is most welcome as well.

The concept of decisional privacy

4. Decisional privacy involves empowering the person about whom orders are to be made with a voice in the formulation of those orders.
5. It may seem strange that the most important person in family law litigation – the child – remains seemingly out of sight. The child never gives evidence in family law litigation.
6. Various explanations are given for that. They include –
   
   1. the fact that the child is young;
   2. the need to shield the child from the trauma of family law litigation; and
   3. knowing the child’s wishes can be ascertained otherwise than by putting the child in the witness box.
7. In an endeavour to hear from the child in a manner that removes the child from the trauma of court, various methods have been formulated such as –
   
   1. the use of an Independent Children’s Lawyer, called colloquially the ICL; and
   2. the use of reports produced by family consultants.
8. Those practising in family law well know the critical role the ICL and the family consultant serve. The family consultant usually meets and chats with the child –
   
   1. privately;
   2. to learn of the child’s wishes; and
   3. he or she applies his or her professional training as a psychologist so as to report to the court.
9. The ICL advocates specifically for the child and independently of the warring parents. Separate solicitors are instructed, separate counsel is briefed. The ICL posits a view on behalf of the child. The ICL confers with the child to ascertain the child’s wishes.
10. Those of you who are parents or grandparents will know that some of the most challenging years of parenting are the teenage years from 13-18. Usually or frequently –
    
    1. the teenager is opinionated, headstrong and socially active;
    2. the teenager is developmentally advanced physically and intellectually, although the teenager is not always given to making the right choices; and
    3. sometimes the teenagers is badly behaved towards his or her school, parents or siblings.
11. Courts are not necessarily the best venue for the determination of parenting issues about a child in the teenage years.
12. But in a social and legal construct that promotes parents having equal shared parental responsibility, both parents are encouraged to make joint decisions about matters of long-term significance for the child.
13. Instantly, you ask rhetorically, where does the child’s wishes fit into that decision-making process?
14. The most important person in the equation may not enjoy the independence needed in the decision-making process concerning his or her future.
15. Keep in mind the definition of “decisional privacy” –
    

    “Decisional privacy gives individuals the freedom to act and make decisions about how the individual lives his or her own life without unjustifiable interference from other individuals or the state.”

16. Never could that be more demonstrably exposed than in cases of gender dysphoria. To illustrate the point, let me share with you the story of Ash1 with you.
17. Ash was a 16 year old, born female, wanting to transition to male. The medical evidence revealed that Ash was highly intelligent.  Ash’s heritage was eastern European. Ash’s father was a scientist and Ash’s mother was a medical doctor. Ash applied to the court for declaratory relief that Ash was Gillick-competent to consent to the administration of stage 2 treatment for gender dysphoria and for orders permitting stage 2 treatment to be administered.
18. Ash was admitted to hospital in 2017 with anorexia nervosa and depression signalling the beginning of Ash’s health issues.  According to Ash’s mother, in 2020 Ash identified as a male, although the mother gave evidence that from the age of 10 Ash questioned Ash’s own sexuality. Ash’s parents’ marriage was then under strain. They later divorced and for three years prior to the application to me, Ash’s father had lived in Eastern Europe having nothing at all to do with Ash.
19. Ash’s mother put Ash in touch with a GP who then involved a collection of specialists including psychiatrists, paediatricians and adolescent medicine physicians. All medical practitioners deposed to Ash having Gillick-competence for the procedure. Ash’s father opposed the application. It was necessary, according to the state of the law, to address the father’s opposition.
20. Just pause.  The father had been out of Ash’s life for at least three years while living overseas. Ash was intelligent, well-balanced, able to address the relevant physical, behavioural, psychological and psychiatric issues to hand. One person stood between Ash obtaining the relief sought.
21. Why should that be so?
22. In the end, in reliance upon the overwhelming evidence and Marion’s Case,2 I made the necessary orders handing down ex tempore reasons. They were also ex parte the husband.
23. Why shouldn’t Ash have enjoyed decisional privacy thereby avoiding such legal stoushing? Why was it necessary to torment Ash by legal shenanigans? Well might you ask.

Something about this book

24. Go to the child friendly summary of what the book is about. You will see four things –
    1. children don’t always agree with their parents;
    2. subject to their age and maturity, children should take part in their decision making;
    3. as they grow, children can make decisions on their own; and
    4. children should have the opportunity to tell parents what the children think.
25. Children should be empowered in their own decision making.
26. When making a parenting order the court must have regard to the child’s wishes.3
27. In this book Dr Dimopoulos exposes the inherent conflict between the child having the power to engage in self-determination as opposed to the court imposing on the child its view of the child’s best interests. 
28. The author is justifiably critical of judges who slavishly apply precedent when formulating orders. Lets face it –
    
    1. no parenting case is factually identical so precedent value is much circumscribed;
    2. decisions under the Family Law Act are made in the exercise of discretion that is extraordinarily wide; and
    3. courts need to possess the ability to make orders that are incredibly idiosyncratic.
29. That’s not to say that this book will have all the answers. Raising children is very far from easy. Rarely do all the answers fall in the parents’ laps.

The author is a real expert

30. Dr Dimopoulos brings enormous background to her book.
31. Notwithstanding her apparently tender age she has achieved huge success in the law to date. She has seen all facets of the law –
    
    1. from a large commercial law firm;
    2. to community organisations;
    3. from the inside of a court;
    4. to the tertiary lecture theatre. 
32. She is truly wise beyond years.
33. And if that’s not enough, she has the practical hands-on skills of imparting knowledge from experience as a parent.
34. One of great oddities of life is that in so many endeavours a person needs to hold a licence attesting competence yet there is no licensing requirement or other prerequisite to having and raising children.
35. Let’s hope that this book achieves its purpose by causing parents to –
    
    1. listen to the child;
    2. involve the child; and
    3. permit the child to meaningfully participate in decision-making about the child’s own life.
36. It is a great honour to be involved in this significant literary work.

The Honourable Justice Josh Wilson
Federal Circuit and Family Court of Australia (Division 1)
5 December 2022

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