Re: Eddie (No. 2)

[2017] FamCA 1001

FAMILY COURT OF AUSTRALIA

RE: EDDIE (NO. 2) [2017] FamCA 1001

FAMILY LAW – CHILDREN – Medical Procedures – Where a finding had previously been made that the child was Gillick competent to consent to Stage 2 treatment for Gender Dysphoria and the proceedings were otherwise adjourned pending the determination of the special case stated to the Full Court in Re Kelvin [2017] FamCA 78 – Where the Full Court did not confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment requires the court’s authorisation unless the child was Gillick competent to give informed consent – Where the Full Court determined that it was not mandatory to apply to the Family Court for a determination whether the child is Gillick competent where Stage 2 treatment is proposed, the child consents to the treatment and the parents and the medical practitioners are in agreement – Where the applicant’s application for a declaration or in the alternative an order authorising Stage 2 treatment for Gender Dysphoria is dismissed.

Family Law Act 1975 (Cth)

Re: Eddie [2017] FamCA 822
Re: Jamie (2013) FLC 93-547
Re: Kelvin [2017] FamCA 78
Re: Kelvin [2017] FamCAFC 258
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 4 December 2017

JUDGMENT OF: Watts J

HEARING DATE: 4 December 2017

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

ORDERS

1. The applicant’s Initiating Application filed 29 September 2017 is dismissed.

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 Eddie (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

The Mother

Applicant

And

The Father

Respondent

EX TEMPOR REASONS FOR JUDGMENT

1. On 9 October 2017 in this matter ([2017] FamCA 822) I dealt with the applicant’s Initiating Application filed 29 September 2017 for a declaration or in the alternative an order authorising Stage 2 medical treatment for Gender Dysphoria as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (DSM-5).

2. I made a finding that Eddie was Gillick competent to consent to Stage 2 medical treatment for Gender Dysphoria.

3. However, given the Full Court was reserved in the special case stated in Re: Kelvin [2017] FamCA 78 and the outcome of the Full Court’s deliberations in that case would almost certainly impact upon whether or not it would be appropriate to dismiss the application that had been brought or make some other order or declaration, I adjourned these proceedings to await the outcome of the decision in Re: Kelvin.

4. The Full Court last Thursday in Re: Kelvin [2017] FamCAFC 258 provided the following answers to these questions:

   Question 1:Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent?

   Answer:No

   Question 2:Where:

   2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;

   2.2. The child consents to the treatment;

   2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and

   2.4. The parents of the child do not object to the treatment

   is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136-137, 140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

   Answer: No

5. Questions 3 to 6 as posed to the Full Court dealt with the issue as to what order should be made if a finding has been made that a child was Gillick competent to give informed consent to Stage 2 treatment. The Full Court found it was unnecessary to answer those questions given the negative answers given to questions 1 and 2.

6. The majority in Re: Kelvin recorded at [94] that the Attorney-General made a submission that, if the answer to Question 2 is that an application to the court is unnecessary, that may be a factor tending against the making of any order by me in the exercise of my discretion. I take that to mean any order apart from one dismissing the application. The majority found that I did not have power to ask Question 2; that it was “inappropriate” for the Full Court to answer that question; but that did not mean they could not in fact answer the question and the majority proceeded to do so. Having done so I can rely upon the answer to Question 2. I accept the Attorney-General’s submission that the negative answer to that question is a factor tending against the making of any order by me in the exercise of my discretion, save an order dismissing the application.

7. The minority answered all questions in an identical manner to the majority but on the basis that the Full Court erred in its application of Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) in Re: Jamie.

8. Accordingly I dispose of this case by dismissing the applicant’s Initiating Application filed 29 September 2017.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 4 December 2017.

Associate:

Date: 5.12.17