Re: Adrian - [2017] FamCA 957

FAMILY COURT OF AUSTRALIA

RE: ADRIAN

[2017] FamCA 957

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Gender dysphoria – Application for Stage 2 treatment for gender dysphoria – Where the child is 16 years of age – Consideration as to whether the child is Gillick competent – Where a declaration is made that the child is Gillick competent to consent to Stage 2 treatment.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

APPLICANT:

The Mother

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

By Court Order File Number is suppressed

DATE DELIVERED:

10 November 2017

JUDGMENT OF:

McClelland J

HEARING DATE:

10 November 2017

REPRESENTATION:

By Court Order the names of Solicitors have been suppressed

Orders

THE COURT ORDERS THAT:

The Court finds that the child, Adrian, born … 2001 is competent to give informed consent to Stage 2 treatment for Gender Dysphoria in Adolescents and Adults as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition).
That the full name of the child, the child’s family members and their occupations, the child’s hospital, the child’s medical practitioners, the court file number, the state of New South Wales (where the proceedings were initiated) and any other fact that may identify the child shall not be published in any way and only anonymised reasons for judgment and orders will be released to non-parties without further contrary order of a Judge.
That no person is permitted to search the Court file in this matter without first obtaining the leave of a Judge.
That the Applicant and /or the child be permitted to provide a copy of the un-anonymised findings, reasons for decision and orders to persons involved in the child’s treatment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Adrian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

The Mother

Applicant

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The Mother and the Father are the parents of Adrian, who was born in 2001 and is aged 16. Adrian has been diagnosed with gender dysphoria. Whilst Adrian was born genetically a female, he identifies as a male.
Adrian was diagnosed with gender dysphoria in September 2015, and formally changed his name to Adrian on his birth certificate and driver’s permit earlier this year.
This application is brought by Adrian’s mother. Adrian’s father is supportive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Adrian

Details

AGLC: Re: Adrian [2017] FamCA 957
Case: [2017] FamCA 957
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the matter of *Re: Adrian*, heard before McClelland J, the court considered the capacity of a child, identified as Adrian, born in 2001, to provide informed consent for medical treatment related to Gender Dysphoria. The proceedings were initiated in New South Wales.

The central legal issue before the court was whether Adrian possessed the requisite capacity to consent to Stage 2 treatment for Gender Dysphoria, as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. This involved an assessment of the child's understanding and maturity in relation to the proposed medical intervention.

McClelland J determined that Adrian was competent to give informed consent to the proposed treatment. The court's reasoning, though not detailed in the provided text, necessarily involved an evaluation of the child's cognitive abilities, understanding of the nature and consequences of the treatment, and the voluntariness of their decision. The court also made extensive orders to protect Adrian's privacy, prohibiting publication of identifying details and restricting access to the court file without judicial leave, while permitting the disclosure of un-anonymised documents to those involved in Adrian's treatment.

Orders

Orders of the court

THE COURT ORDERS THAT:

The Court finds that the child, Adrian, born … 2001 is competent to give informed consent to Stage 2 treatment for Gender Dysphoria in Adolescents and Adults as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition).

That the full name of the child, the child’s family members and their occupations, the child’s hospital, the child’s medical practitioners, the court file number, the state of New South Wales (where the proceedings were initiated) and any other fact that may identify the child shall not be published in any way and only anonymised reasons for judgment and orders will be released to non-parties without further contrary order of a Judge.

That no person is permitted to search the Court file in this matter without first obtaining the leave of a Judge.

That the Applicant and /or the child be permitted to provide a copy of the un-anonymised findings, reasons for decision and orders to persons involved in the child’s treatment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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