Re Jacinta - [2015] FamCA 1196

FAMILY COURT OF AUSTRALIA

RE: JACINTA

[2015] FamCA 1196

FAMILY LAW – CHILDREN – Where a child’s mother sought a declaration that the child was competent to consent to Phase 2 treatment for Gender Dysphoria – Where the child’s father failed to engage with the proceedings – Where the Court is satisfied the child is sufficiently competent to understand the nature and express a decision about the receipt of Phase 2 treatment – Where the child’s best interests would be advanced by her receipt of Phase 2 treatment – Discussion of the form the orders should take – Where it is appropriate to make a declaratory order – Declared the child is able to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them.

Family Law Act 1975 (Cth), ss 64B, 67ZC, 121

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

APPLICANT:

The Mother

RESPONDENT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

22 December 2015

JUDGMENT OF:

Austin J

HEARING DATE:

22 December 2015

REPRESENTATION

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

Orders

The Court declares that Jacinta (formerly known as …) born on … 1999 (“the child”), is competent to consent to the administration to her of Phase 2 treatment for the condition known as “Gender Dysphoria”.
So as to protect the child:

a.The child’s full name, the names of her family members and her medical practitioners, this Court’s file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.
b.Only anonymized Reasons for Judgment and Orders shall be released by the Court to non-parties without contrary order of a Judge.

c.No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

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 Applicant Mother and the child have leave to publish to the child’s treating practitioners a copy of these Orders and a copy of the Reasons for such Orders, which are not anonymized pursuant to Order 2 hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Jacinta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order file number is suppressed

The Mother

Applicant

And

The Father

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The child who is the subject of these proceedings was born in 1999 and is now nearly 17 years of age.
On 13 November 2015, the child’s mother commenced these proceedings, seeking…

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 Jacinta

Details

AGLC: Re Jacinta [2015] FamCA 1196
Case: [2015] FamCA 1196
Decision Date: 22 December 2015

CaseChat Overview and Summary

In the matter of *Re Jacinta*, Austin J of the Supreme Court of New South Wales was required to determine whether a child, Jacinta, born in 1999 and diagnosed with Gender Dysphoria, was competent to consent to the administration of Phase 2 treatment for her condition. The proceedings involved Jacinta and her mother as applicants, seeking a declaration regarding her capacity to consent to medical treatment.

The central legal issue before the Court was the capacity of a minor to consent to medical treatment, specifically in the context of gender dysphoria and the proposed Phase 2 treatment. This required an assessment of Jacinta's maturity, understanding, and ability to make an informed decision about her medical care, notwithstanding her age.

Austin J applied the principles of common law regarding the capacity of minors to consent to medical treatment, often referred to as the *Gillick* competence principle. The Court found that Jacinta possessed the necessary understanding and intelligence to comprehend the nature and implications of the proposed treatment. Her ability to understand the benefits, risks, and alternatives, and to make a voluntary choice, led the Court to conclude that she was competent to consent. The Court also made orders to protect Jacinta's privacy by restricting the publication of identifying information and access to court records.

Orders

Orders of the court

The Court declares that Jacinta (formerly known as …) born on … 1999 (“the child”), is competent to consent to the administration to her of Phase 2 treatment for the condition known as “Gender Dysphoria”.

So as to protect the child:

a. The child’s full name, the names of her family members and her medical practitioners, this Court’s file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

b. Only anonymized Reasons for Judgment and Orders shall be released by the Court to non-parties without contrary order of a Judge.

c. No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

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 Applicant Mother and the child have leave to publish to the child’s treating practitioners a copy of these Orders and a copy of the Reasons for such Orders, which are not anonymized pursuant to Order 2 hereof.

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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