Re: Chloe - [2018] FamCA 1006

FAMILY COURT OF AUSTRALIA

RE: CHLOE

[2018] FamCA 1006

FAMILY LAW – CHILDREN – Gender Dysphoria – Stage 2 treatment – Where the Minister has parental responsibility for the child – Whether the Minister requires court authorisation for the child to commence Stage 2 treatment – Whether the Court has the jurisdiction to determine this matter under s 69ZK of the Family Law Act 1975 (Cth) – Where the Court has jurisdiction when the Minister institutes the proceedings – Where treating practitioners have agreed that the subject child is Gillick competent – Where it is agreed that the proposed treatment is therapeutic – Where there is no controversy regarding the treatment - Where it is determined that the role, rights and responsibilities of biological parents are not distinguished from the role, rights and responsibilities of the Minister who has parental responsibility – Where the Minister, being the person with parental responsibility for the child, is not required to seek court authorisation for the child to commence Stage 2 treatment – Whether the Minister requires court authorisation to change the name of a child – Where the Minister, being the person with parental responsibility for the child, is not required to seek court authorisation to change the name of the child.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79
Births Deaths and Marriages Act 1995 (NSW) s 28(2)
Family Law Act 1975 (Cth) ss 4, 69ZK
Family Law Regulations reg 12B(2), 12BA

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Kelvin (2017) 351 ALR 329
Re: Matthew [2018] FamCA 161

APPLICANT:

Secretary of the relevant Government Department

2^ND APPLICANT:

Minister for the relevant Government Department

RESPONDENT:

The Mother

2^ND RESPONDENT:

The Father

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

21 November 2018

JUDGMENT OF:

Rees J

HEARING DATE:

In Chambers

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

That authorisation by the Family Court of Australia is not required for the administration of Stage 2 treatment for childhood Gender Dysphoria in relation to the child CHLOE provided that the subject child has been diagnosed as suffering from Gender Dysphoria, treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy.
That the Minister for the relevant Government Department, in his capacity as “the child welfare officer” within the meaning of section 4 of the Family Law Act1975 (Cth) being the person with parental responsibility for Chloe is not required to seek the authority of the Family Court of Australia for the administration of Phase 2 treatment for the condition of childhood Gender Dysphoria.

IT IS ORDERED

That the application filed 3 October 2018 is otherwise dismissed.
That the full name of CHLOE, her family members, her hospital, her medical practitioners, her school, this Court’s file…

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: Chloe

Details

AGLC: Re: Chloe [2018] FamCA 1006
Case: [2018] FamCA 1006
Decision Date: 21 November 2018

CaseChat Overview and Summary

In the matter of Chloe, Rees J of the Family Court of Australia considered an application concerning the administration of Stage 2 treatment for childhood Gender Dysphoria to a child named Chloe. The application was brought by an unspecified party seeking declarations regarding the necessity of Family Court authorisation for this treatment.

The central legal issues before the court were whether authorisation from the Family Court of Australia was required for the administration of Stage 2 treatment for childhood Gender Dysphoria to Chloe, and whether the Minister for the relevant Government Department, acting as the child welfare officer with parental responsibility, needed to seek the court's authority for such treatment.

Rees J reasoned that authorisation by the Family Court was not required for Stage 2 treatment provided certain conditions were met: the child must have a diagnosis of Gender Dysphoria, treating practitioners must agree the child is Gillick competent, the proposed treatment must be agreed to be therapeutic, and there must be no controversy surrounding the treatment. Consequently, the court declared that the Minister, in his capacity as the child welfare officer, was not required to seek the authority of the Family Court for the administration of Phase 2 treatment. The application was otherwise dismissed. The court also made extensive orders for the anonymisation of the judgment and suppression of identifying details to protect Chloe's privacy.

Orders

Orders of the court

IT IS DECLARED

That authorisation by the Family Court of Australia is not required for the administration of Stage 2 treatment for childhood Gender Dysphoria in relation to the child CHLOE provided that the subject child has been diagnosed as suffering from Gender Dysphoria, treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy.

That the Minister for the relevant Government Department, in his capacity as “the child welfare officer” within the meaning of section 4 of the Family Law Act 1975 (Cth) being the person with parental responsibility for Chloe is not required to seek the authority of the Family Court of Australia for the administration of Phase 2 treatment for the condition of childhood Gender Dysphoria.

IT IS ORDERED

That the application filed 3 October 2018 is otherwise dismissed.

That the full name of CHLOE, her family members, her hospital, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, and any other fact or matter that may identify CHLOE, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ 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, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

That no person shall be permitted to search the Court file in this matter without first obtaining the 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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