Re: Bernadette (Special Medical Procedure) - [2010] FamCA 94

FAMILY COURT OF AUSTRALIA

RE: BERNADETTE (SPECIAL MEDICAL PROCEDURE)

[2010] FamCA 94

FAMILY LAW - JURISDICTION
FAMILY LAW - MEDICAL PROCEDURES - Condition of transsexualism - Treatment of condition of transsexualism - Parental responsibility of parents to authorise treatment of transsexualism - Special medical procedure

Re: Alex (2004) FLC 93-175
Re: Tyrone (2002) NSW Court of Appeal 414
Briginshaw (2002) 60 CLR 336
SMB & JWB Secretary Department of Health & Community Services (1992) 175 CLR 218

Family Law Act 1975 (Cth)
Family Law Rules 2004
Marriage Act 1961 (Cth)

APPLICANTS:

The Father
and
The Mother

INTERVENOR

Director-General, Department of Human Services

INTERVENOR

Human Rights and Equal Opportunity Commission

INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW

FILE NUMBER OMITTED

DATE DELIVERED:

19 January 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

5 - 7 November 2007

REPRESENTATION

NAMES OF REPRESENTATIVES OMITTED

Orders

That orders 1, 2, 3 and 4 made on 7 November 2007, herein set out as follows, be and are hereby made on a final basis:
(1)That the child BERNADETTE the subject child born on … January 1992 be entitled and permitted to be administered the following treatment for the condition of transsexualism:
(a)Hormonal treatment known as phase one treatment to block the onset of puberty; and
(b)Hormonal treatment known as phase two treatment.
(2)Such treatment is to commence on or after … January 2008.
(3)That in the event of a proposed change in the child’s attending physicians the applicant father is to inform the Independent Children’s Lawyer, the Department of Community Services and the Human Right and Equal Opportunities Commission of such changes within seven days.
(4)That the subject child continue to receive counselling by psychiatrists Dr X and Dr Y at such frequency as is recommended by each of those psychiatrists.
That all outstanding applications and cross-applications be and are hereby discharged.
That all issues be removed from the Active Pending Cases List.
That all subpoena material be returned after the expiration of 56 days.

IT IS NOTED that publication of this judgment under the pseudonym Re Bernadette (Special Medical Procedure) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER OMITTED

THE FATHER AND THE MOTHER

Applicant Parents

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Intervenor

And

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Intervenor

And

LEGAL AID COMMISSION OF NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

At the outset of this judgment I must examine with some care what it is that the applicants seek to have me do in this case. On 7 November 2007 an order was made on a final basis enabling Bernadette to receive hormone treatment, known as phase one treatment, to block the onset of puberty and hormone treatment, known as phase two treatment, to commence after …January 2008.
Thus that which required determination were a number of questions posed by the applicants and to a lesser extent the other parties to the proceedings.

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: Bernadette (Special Medical Procedure)

Details

AGLC: Re: Bernadette (Special Medical Procedure) [2010] FamCA 94
Case: [2010] FamCA 94
Decision Date: 19 January 2010

CaseChat Overview and Summary

This matter concerned an application by the father of Bernadette, a child born in January 1992, seeking final orders for the administration of medical treatment for the condition of transsexualism. The application was heard by Collier J.

The central legal issue before the court was whether to make final the interim orders previously granted, which permitted Bernadette to undergo phase one hormonal treatment to block the onset of puberty and phase two hormonal treatment, commencing on or after January 2008. The court was also required to consider the ongoing arrangements for counselling and notification of changes in medical practitioners.

Collier J reasoned that the previous orders had been made on an interim basis and that the court now had the benefit of further information and assessment. The judge considered the best interests of the child in determining whether to confirm the treatment plan. The court applied principles relating to medical treatment for minors, particularly in circumstances involving complex and sensitive conditions, and the paramountcy of the child's welfare.

The court made final the orders previously made on 7 November 2007. These orders permitted Bernadette to receive hormonal treatment for transsexualism, commencing on or after January 2008. The orders also stipulated that the father inform relevant parties of any changes in attending physicians within seven days, and that Bernadette continue to receive counselling from specified psychiatrists. All outstanding applications and cross-applications were discharged, and issues were removed from the Active Pending Cases List.

Orders

Orders of the court

That orders 1, 2, 3 and 4 made on 7 November 2007, herein set out as follows, be and are hereby made on a final basis:

(1) That the child BERNADETTE the subject child born on … January 1992 be entitled and permitted to be administered the following treatment for the condition of transsexualism:

(a) Hormonal treatment known as phase one treatment to block the onset of puberty; and

(b) Hormonal treatment known as phase two treatment.

(2) Such treatment is to commence on or after … January 2008.

(3) That in the event of a proposed change in the child’s attending physicians the applicant father is to inform the Independent Children’s Lawyer, the Department of Community Services and the Human Right and Equal Opportunities Commission of such changes within seven days.

(4) That the subject child continue to receive counselling by psychiatrists Dr X and Dr Y at such frequency as is recommended by each of those psychiatrists.

That all outstanding applications and cross-applications be and are hereby discharged.

That all issues be removed from the Active Pending Cases List.

That all subpoena material be returned after the expiration of 56 days.

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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