Re: Darcey - [2015] FamCA 409

FAMILY COURT OF AUSTRALIA

RE: DARCEY

[2015] FamCA 409

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicant is the parent of a child with Gender Dysphoria – Where the applicant seeks a declaration that the child is competent to authorise his own treatment for Stage 2 administration of oestrogen therapy – Where the child is 16 years of age – Where the child was born male and has been identifying as female for some time including at school – Where the child’s parents separated shortly after the child’s birth and the mother and child have had no contact with the father for some time – Where appropriate to proceed on an undefended basis – Consideration of whether the child is Gillick competent – Where the Independent Children’s Lawyer and the child’s treating doctors support the application – Declaration made as to the child’s Gillick competence to Stage 2 oestrogen treatment.

FAMILY LAW – CHILDREN – CHANGE OF NAME – Where the applicant seeks an order to change the registered name of the child – Where the child has been informally known by that name at school – Order made permitting the change of the child’s name.

Family Law Act 1975 (Cth) ss 65D, 68B

Flanagan & Handcock [2000] FamCA 150
Foocks v McCarthy [1993] FamCA 117; (1994) FLC 92-450
Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112
Re: Colin (Gender Dysphoria) [2014] FamCA 449
Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547
Re: Leo [2015] FamCA 50

APPLICANT:

The Mother

RESPONDENT:

The Father

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

2 June 2015

JUDGMENT OF:

Foster J

HEARING DATE:

1 June 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

That the Court declares that the child Darcey born on … 1999 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.
That the full name of the child Darcey, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child Darcey 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 the applicant mother shall be handed one full copy of these orders with the relevant…

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: Darcey

Details

AGLC: Re: Darcey [2015] FamCA 409
Case: [2015] FamCA 409
Decision Date: 2 June 2015

CaseChat Overview and Summary

In the matter of Re: Darcey, Foster J of the Family Court of Australia considered an application by the child's mother concerning her 16-year-old child, who was born male and identifies as female. The primary dispute involved the child's capacity to consent to Stage 2 hormone therapy for Gender Dysphoria, with the applicant mother seeking a declaration of the child's competence to authorise this treatment. The father had no contact with the child, and the proceedings were conducted on an undefended basis.

The court was required to determine whether the child possessed the requisite capacity to consent to Stage 2 oestrogen therapy, a question that engaged the principles of *Gillick* competence. Additionally, the court considered an application for an order to formally change the child's registered name, a change that had already been informally adopted by the child at school.

Foster J applied the principles of *Gillick* competence, assessing the child's maturity, intelligence, and understanding of the proposed medical treatment. The court noted that the Independent Children's Lawyer and the child's treating doctors supported the application. Having found the child to be *Gillick* competent to consent to Stage 2 oestrogen treatment, the court made a declaration to that effect. The court also granted the application to change the child's name, making orders for the formal registration of the new name. The judgment included extensive orders for anonymisation to protect the child's privacy.

Orders

Orders of the court

That the Court declares that the child Darcey born on … 1999 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.

That the full name of the child Darcey, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child Darcey 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 the applicant mother 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.

The Mother … be authorised to apply to the Registrar of Births, Deaths and Marriages … that the child registered as … born … 1999 be now registered as Darcey …

Pursuant to the relevant State Act, the Registrar register the child’s name in the form specified in Order 5 herein.

The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages ...

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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