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Law -- Northern Territory -- Periodicals.; Law Society of the Northern Territory -- Periodicals.

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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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39 B A L A N C E M A R C H 2 0 1 8 in any way other than to sign the pre-nuptial agreement. Her Honour held that the post-nuptial agreement was signed while the same circumstances continued, with the exception of the time pressure. The agreements were both set aside for duress, although the primary judge used that label interchangeably with undue influence, which is a better characterisation of her findings. The Full Court of the Family Court of Australia allowed an appeal concluding that the agreements had not been vitiated by duress, undue influence, or unconscionable conduct [saying at [167] that the wifes real difficulty was that she had received independent legal advice] [T]he findings and conclusion of the primary judge should not have been disturbed. The agreements were voidable due to both undue influence and unconscionable conduct. After a discussion of case law as to duress ([26]-[29]), undue influence ([30]-[36]) and unconscionable conduct ([37]-[40]), the majority said (at [60]): [S]ome of the factors which may have prominence include (i) whether the agreement was offered on a basis that it was not subject to negotiation; (ii) the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement (iii) whether there was any time for careful reflection; (iv) the nature of the parties relationship; (v) the relative financial positions of the parties; and (vi) the independent advice that was received and whether there was time to reflect on that advice. C H I L D R E N Courts approval no longer required for Stage 2 treatment of Gender Dysphoria if child can give informed consent or the parentally responsible authorise it In Re: Kelvin [2017] FamCAFC 258 (30 November 2017) a full bench of the Full Court (Thackray, Strickland, Ainslie-Wallace, Ryan & Murphy JJ) heard a case stated by Watts J as to an application by the father concerning the administration of Stage 2 medical treatment for Gender Dysphoria for his then sixteen-year-old child (Kelvin) who was born female but transitioned socially as a transgender person from Year 8 ([27]). The Court said at [6] that Gender Dysphoria was the distress experienced by a person due to incongruence between their gender identity and their sex assigned at birth. The childs father sought the Courts sanction for the commencement of Stage 2 treatment in accordance with Re: Jamie [2013] FamCAFC 110. The Full Court held in that case that the courts approval under s 67ZC FLA was not required in respect of Stage 1 treatment (puberty blocking treatment) but that Stage 2 treatment (gender affirming hormone treatment) involving the use of oestrogen or testosterone with irreversible effects would require the courts approval. Thackray, Strickland & Murphy JJ at [35]-[41] described Kelvins experience of Gender Dysphoria since he was nine; his anxiety and self-harming; his distress from experiencing female puberty due to not undergoing Stage 1 treatment; the improvement in his mental health since taking steps towards a medical transition; his parents support; the necessity of Stage 2 treatment for his future wellbeing and his wish (at seventeen) to commence such treatment. Their Honours (at [51]) observed that between 2013 and 2017 the Family Court had dealt with sixty-three cases involving applications for Stage 2 or Stage 3 treatment for Gender Dysphoria and that [i]n sixty-two of those cases the outcome ha[d] allowed treatment. The majority said from [147]: [T]he Full Court [in Re: Jamie held that] Stage 1 treatment is therapeutic in nature, and is fully reversible. Further, that it is not attended by grave risk if a wrong decision is made, and it is for the treatment of a malfunction or disease, being a psychological rather than a physiological disease. Thus, absent a controversy, it fell within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment. () [149] As to Stage 2 treatment the Full Court agreed that although Stage 2 treatment is therapeutic in nature, it was also irreversible in nature (at least not without surgery). () [162] The consensus of the applicant, the ICL and all but one of the intervenors is that the development in the treatment of and the understanding of Gender Dysphoria allows this Court to depart from the decision of Re Jamie. In other words, the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment, and court authorisation is not required. ()