Re: Daniel null - [2017] FamCA 155

FAMILY COURT OF AUSTRALIA

RE: DANIEL

[2017] FamCA 155

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicant is the mother of a child diagnosed with Gender Dysphoria – where the mother seeks a declaration that the child is Gillick competent – where the court authorises the child to make his own decision in relation to stage two hormonal treatment – where the application for a declaration of Gillick competency is dismissed with a right of reinstatement upon the decision of the Full Court in Re Kelvin [2017] FamCA 78.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rr 1.12 and 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jacinta [2015] FamCA 1196

Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369
Re Kelvin [2017] FamCA 78

Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218

APPLICANT:

The Mother

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

17 March 2017

JUDGMENT OF:

Johns J

HEARING DATE:

10 March 2017

REPRESENTATION

By Court Order the names of Counsel and Solicitor have been suppressed

Orders

That pursuant to Rule 1.12 of the Family Law Rules 2004 (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 27 February 2017 be served on the prescribed child welfare authority be dispensed with.
That the name of the child, Daniel born … 2000, Daniel’s family members and their occupations, the hospital, Daniel’s medical practitioners, Daniel’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Daniel shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets excluding the registry, file number and lawyers names and details as well as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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That the applicant be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Daniel’s treatment.
That upon the Court being satisfied that the child Daniel born … 2000 is competent to consent to the medical treatment described in the Initiating Application filed 27 February 2017 the applicant’s Initiating Application filed 27 February 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated…

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: Daniel null

Details

AGLC: Re: Daniel null [2017] FamCA 155
Case: [2017] FamCA 155
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the matter of Re: Daniel, Johns J of the Family Court of Australia considered an application concerning the medical treatment of a child named Daniel. The applicant sought to dispense with the requirement to serve the Initiating Application on the prescribed child welfare authority.

The primary legal issue before the Court was whether to dispense with service on the child welfare authority, as required by Rule 4.10 of the Family Law Rules 2004. A further, related issue concerned the publication of identifying details of the child and the proceedings, given the sensitive nature of the treatment sought. The Court also had to consider the conditions under which the application for medical treatment would proceed or be dismissed, pending a determination in another case.

Johns J reasoned that dispensing with service on the child welfare authority was appropriate in this instance, pursuant to Rule 1.12 of the Rules. The Court also made extensive orders to protect Daniel's privacy, prohibiting the publication of any identifying information and restricting access to the court file. The Court noted that the treatment in question was stage two hormonal treatment with testosterone for gender dysphoria.

The Court ordered that the requirement for service on the child welfare authority be dispensed with. The application for medical treatment was to be dismissed with a right of reinstatement, contingent upon Daniel being found competent to consent to the treatment and the determination of a Case Stated in *Re Kelvin* [2017] FamCA 78, should unresolved issues remain. The Court also made detailed orders regarding the anonymisation of judgments and the provision of un-anonymised documents to those involved in Daniel's treatment.

Orders

Orders of the court

That pursuant to Rule 1.12 of the Family Law Rules 2004 (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 27 February 2017 be served on the prescribed child welfare authority be dispensed with.

That the name of the child, Daniel born … 2000, Daniel’s family members and their occupations, the hospital, Daniel’s medical practitioners, Daniel’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Daniel shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets 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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.

That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

That the applicant be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Daniel’s treatment.

That upon the Court being satisfied that the child Daniel born … 2000 is competent to consent to the medical treatment described in the Initiating Application filed 27 February 2017 the applicant’s Initiating Application filed 27 February 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.

AND THE COURT NOTES

That the treatment described in the applicant’s Initiating Application filed 27 February 2017 is the following treatment for gender dysphoria:-

Stage two hormonal treatment with testosterone to masculinise his body.

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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