Re: Harley - [2016] FamCA 334

FAMILY COURT OF AUSTRALIA

RE: HARLEY

[2016] FamCA 334

FAMILY LAW – MEDICAL PROCEDURE – Gender dysphoria – declaration of Gillick competence and able to consent.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC ¶93-547; [2013] FamCAFC 110
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

APPLICANT:

The Mother

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

22 April 2016

JUDGMENT OF:

Bennett J

HEARING DATE:

22 April 2016

REPRESENTATION

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

Orders

«FCA_LD221»IT IS DECLARED

1.That the child subject to these proceedings … also known as HARLEY born … 2000 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as is advised by his medical practitioners.

IT IS DIRECTED

2.The name of the child HARLEY born … 2000, Harley’s family members and their occupations, the hospital, Harley’s medical practitioners, Harley’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Harley shall not be published in any way and only anonymised Reasons for Judgment and Orders (with coversheets excluding the Registry, file number and lawyers’ names and details as well as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 has been handed one full copy of the Order made on 22 April 2016 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.
3.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
4.The application filed 22 April 2016 be otherwise dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Harley.

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother
Applicant

REASONS FOR JUDGMENT

Introduction

The applicant mother of a child (“the child” or “Harley”) whose name I will not reveal seeks a declaration that her son (for the child identifies as male) is competent to consent to Stage 2 cross-sex hormone treatment for Gender Dysphoria.
The application is made by the child’s mother and supported by the child’s treating clinicians from X Hospital.
It is an urgent but non-controversial application.
After reviewing the evidence and hearing the submissions of counsel for the mother, I granted the mother’s application and said that I would deliver my reasons subsequently. These are those reasons.

The application

The application was filed on 22 April 2016 and was heard that afternoon.
Both parents attended Court. The child…

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: Harley

Details

AGLC: Re: Harley [2016] FamCA 334
Case: [2016] FamCA 334
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the matter of *Re: Harley*, heard by Bennett J in the Federal Court of Australia, the proceedings concerned the capacity of a child, referred to as Harley, to consent to medical treatment for gender identity dysphoria. The application sought declarations regarding Harley's competence to make such decisions.

The central legal issue before the Court was whether Harley, a child, possessed the legal capacity to consent to or refuse medical treatment for gender identity dysphoria, as advised by medical practitioners. The Court was required to determine the age and maturity at which a child can exercise such autonomy in relation to medical interventions.

Bennett J reasoned that Harley, by virtue of his age and maturity, was competent to consent to or refuse medical treatment for gender identity dysphoria. The Court applied principles of common law concerning the capacity of minors to consent to medical treatment, often referred to as the *Gillick* competence principle, which assesses a child's understanding and intelligence to comprehend the nature and implications of the proposed treatment. The Court also made orders for the strict anonymisation of the proceedings and restricted access to the court file to protect Harley's privacy. The application was otherwise dismissed.

Orders

Orders of the court

«FCA_LD221»IT IS DECLARED

1. That the child subject to these proceedings … also known as HARLEY born … 2000 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as is advised by his medical practitioners.

IT IS DIRECTED

2. The name of the child HARLEY born … 2000, Harley’s family members and their occupations, the hospital, Harley’s medical practitioners, Harley’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Harley 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 has been handed one full copy of the Order made on 22 April 2016 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.

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

4. The application filed 22 April 2016 be otherwise dismissed.

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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