Re: Benjamin - [2017] FamCA 528

FAMILY COURT OF AUSTRALIA

RE: BENJAMIN

[2017] FamCA 528

CHILDREN – MEDICAL PROCEDURE – Gender Dysphoria – Applicant parents seek an order that child is competent to consent to Stage 2 treatment for Gender Dysphoria – Whether child is Gillick competent – Where parents and child’s treating medical practitioners are of the view that child is Gillick competent – Finding that child is Gillick competent to consent to Stage 2 treatment – Finding that it is otherwise in the child’s best interests to undergo Stage 2 treatment - Where orders relating to confidentiality are made

Family Law Act 1975 (Cth) s 121(9)

Re Jamie (2013) 278 FLR 155
Re Jamie (2013) 278 FLR 155
Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112
Secretary, Department of Health & Community Services v JWB &SMB (“Marion’s Case”) (1991-1992) 175 CLR 218

FIRST APPLICANT:	The Mother
SECOND APPLICANT:	The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

12 July 2017

JUDGMENT OF:

Tree J

HEARING DATE:

16 May 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

THE COURT FINDS AND IT IS DECLARED THAT:

The child BENJAMIN born … 2000 (“Benjamin”) is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

The full name of Benjamin, his family members, hospital, medical practitioners, school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Benjamin’s mother and father and any other fact or matter which may identify Benjamin shall not be published in any way.
Only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer names and details as well as the parties’ real names) shall be released by the court to non-parties without further contrary order of a judge.
That Benjamin be at liberty to identify himself as the subject of this application and as the child the subject of the reasons for decision for these orders if he may choose.
To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Benjamin have leave to publish to Benjamin’s treating health practitioners a copy of these orders which are not anonymised.
Further to Orders 4 and 5 above, each of the parties to these proceedings, and Benjamin himself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.
No person be permitted to search the court file in this matter without first obtaining leave of a judge.

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: Benjamin has…

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: Benjamin

Details

AGLC: Re: Benjamin [2017] FamCA 528
Case: [2017] FamCA 528
Decision Date: 12 July 2017

CaseChat Overview and Summary

The proceedings concerned Benjamin, a child diagnosed with Gender Dysphoria, and the capacity of Benjamin to consent to stage two treatment for this condition. The matter came before Tree J.

The central legal issue before the court was whether Benjamin, as a child, possessed the legal capacity to consent to the proposed medical treatment for Gender Dysphoria. This required the court to consider the principles of medical consent for minors under Australian law.

Tree J determined that Benjamin was competent to consent to the administration of stage two treatment. The court applied the established legal principles regarding the capacity of minors to consent to medical treatment, which assess the child's understanding and intelligence to comprehend the nature and implications of the proposed treatment. The court also made extensive orders regarding the publication and access to the judgment and orders, prioritising Benjamin's privacy and anonymity while allowing for necessary disclosure to treating practitioners and Benjamin himself.

Orders

Orders of the court

THE COURT FINDS AND IT IS DECLARED THAT:

The child BENJAMIN born … 2000 (“Benjamin”) is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

The full name of Benjamin, his family members, hospital, medical practitioners, school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Benjamin’s mother and father and any other fact or matter which may identify Benjamin shall not be published in any way.

Only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer names and details as well as the parties’ real names) shall be released by the court to non-parties without further contrary order of a judge.

That Benjamin be at liberty to identify himself as the subject of this application and as the child the subject of the reasons for decision for these orders if he may choose.

To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Benjamin have leave to publish to Benjamin’s treating health practitioners a copy of these orders which are not anonymised.

Further to Orders 4 and 5 above, each of the parties to these proceedings, and Benjamin himself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.

No person be permitted to search the court file in this matter without first obtaining leave of a judge.

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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