Re Elliott - [2017] FamCA 1008

FAMILY COURT OF AUSTRALIA

RE: ELLIOTT

[2017] FamCA 1008

FAMILY LAW – MEDICAL PROCEDURES – Gender Dysphoria – Applicant parents seek order that child is competent to consent to stage two treatment for Gender Dysphoria – Applicants seek alternative order that they be authorised to consent to the administration of stage 2 treatment for the child –Where there is no unanimity amongst the child’s medical experts that child is Gillick competent – Where there is deficient evidence to conclude child is Gillick competent – Where parents and child’s medical experts are unanimously of the view that stage two treatment is in the child’s best interests – Where applicants pressed for them being authorised to consent to treatment for the child – Findings that it is in the child’s best interests for parents to authorise stage two treatment – Where orders relating to confidentiality are made.

Family Law Act 1975 (Cth) s 121(9)

Re: Kelvin [2017] FamCAFC 258
Re: Jamie (2013) FLC 93-547
Gillick v West Norfolk and Wisbech Area Health Authority [1968] AC 112
Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218
Re: Darryl [2016] FamCA 720
Re: Lincoln (No. 2) [2016] FamCA 1071

FIRST APPLICANT:

The Father

SECOND APPLICANT:

The Mother

DATE DELIVERED:

11 December 2017

JUDGMENT OF:

Tree J

HEARING DATE:

15 November 2017

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

By Court Order Solicitors names have been suppressed

Orders

That the applicants are hereby authorised to consent to stage two treatment for , born … 2000 (“the child”) for the condition called Gender Dysphoria in Adolescents and Adults, comprising the administration of testosterone in such dose, in such manner and with such frequency, as may be determined by his treating medical practitioners from time to time, so as to achieve male puberty.
The full name of the child, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of the child’s mother and father and any other fact or matter which may identify the child shall not be published in any way save as permitted by this order or further order of this Court.
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.
That the child be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he may chose.
To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and the child have leave to publish to the child’s treating health practitioners (including by inserting a copy of the orders on the child’s medical record) a copy of these…

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 Elliott

Details

AGLC: Re Elliott [2017] FamCA 1008
Case: [2017] FamCA 1008
Decision Date: 11 December 2017

CaseChat Overview and Summary

In Re Elliott, the applicants, who were the parents of a child born in 2000, sought authorisation from the court to consent to stage two treatment for the child's diagnosed Gender Dysphoria. This treatment involved the administration of testosterone to achieve male puberty. The court was required to determine whether to grant this authorisation and to make orders regarding the publication of the proceedings and the child's identity.

The central legal issue before the court was the capacity of the parents to consent to medical treatment for their child, specifically stage two gender-affirming care, in circumstances where the child was a minor. The court also had to consider the implications of the *Family Law Act 1975* (Cth), particularly section 121, concerning the publication of identifying information in family law proceedings.

Tree J authorised the applicants to consent to stage two treatment for the child, comprising the administration of testosterone as determined by the treating medical practitioners. The court made extensive orders to protect the child's privacy, prohibiting the publication of any identifying details of the child, their family, or the proceedings, save as permitted by the order. The court also granted leave for the parents and the child to provide unanonymised copies of the orders to treating health practitioners, to the extent not already authorised by section 121(9) of the *Family Law Act 1975* (Cth). The child was given liberty to identify himself as the subject of the decision if he chose. All other extant applications were dismissed.

Orders

Orders of the court

That the applicants are hereby authorised to consent to stage two treatment for , born … 2000 (“the child”) for the condition called Gender Dysphoria in Adolescents and Adults, comprising the administration of testosterone in such dose, in such manner and with such frequency, as may be determined by his treating medical practitioners from time to time, so as to achieve male puberty.

The full name of the child, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of the child’s mother and father and any other fact or matter which may identify the child shall not be published in any way save as permitted by this order or further order of this Court.

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.

That the child be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he may chose.

To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and the child have leave to publish to the child’s treating health practitioners (including by inserting a copy of the orders on the child’s medical record) a copy of these orders which are not anonymised pursuant to order 3 hereof.

Each of the parties to these proceedings and the child shall be at liberty to obtain a full copy of these orders, and the reserved reasons for judgment when published, with all of the identifying details.

No person be permitted to search the court file in this matter without first obtaining leave of a judge.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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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