Re: Jaden

Case [2017] FamCA 269


FAMILY COURT OF AUSTRALIA

RE: JADEN [2017] FamCA 269
FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Gender Dysphoria – Where the applicants seek a finding that the child is Gillick competent to consent to Stage 2 treatment for Gender Dysphoria – Where the child’s treating doctors opine that the child is not Gillick competent to fully understand the proposed health risks – Where the Court is of the view that the child is Gillick competent and can consent to the proposed treatment – Where the Court is otherwise satisfied that Stage 2 treatment is in the child’s best interests. 

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175
Re Alex (2009) 42 Fam LR 645
Cousins & Harper and Ors [2007] 38 Fam LR 461
Re Darryl [2016] FamCA 720
Director-General, Department of Community Services Re Thomas [2009] NSWSC 217
DJL v Central Authority (2000) 201 CLR 226
Duroux v Martin (1993) FLC 92-432
G v H (1994) FLC 92-504
Gillick v West Norfold and Wisbech A.H.A. [1986] AC 112
Re Harley [2016] FamCA 334
Re Jacinta [2015] FamCA 1196
Re Jamie (2013) FLC 93-547
Re Kaitlin [2017] FamCA 83

Re Kelvin [2017] FamCA 78

Re Lucy (Gender Dysphoria) [2013] FamCA 518
Re: Lucas [2016] FamCA 1129
Re: Mackenzie [2016] FamCA 610
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218
In the marriage of Smith (1979) FLC 90-642

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
APPLICANT: The Director General, The Department

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 2 May 2017
JUDGMENT OF: Carew J
HEARING DATE: 12 April 2017

REPRESENTATION

By Court Order the solicitors’ names have been suppressed

upon the court finding:

That the child Jaden (formerly … or ...) born … 2000 is Gillick competent to make the decision to proceed with stage two treatment.

Order

  1. The name of the child Jaden (formerly … or …) born … 2000 and details of his foster parents, his hospital, his medical practitioners, his school, this Court’s file number, the State of Australia in which proceedings were initiated, and any other fact, matter or detail which may identify Jaden shall not be published in any way save as permitted by this order or further order of the Court.

  2. Only anonymised reasons for judgment and orders (with cover sheets excluding the registry file number and lawyer names and details as well as the parties’ and witnesses’ real names) shall be released by the Court to non-parties without further contrary order of a judge.

  3. That Jaden be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he so chooses.

  4. 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, or such other person as…

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AGLC
Re: Jaden [2017] FamCA 269
Case
[2017] FamCA 269
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the father, Mr. Jaden, for orders for the recovery of his child, [Child's Name], from the mother, Ms. Smith. The child was residing with Ms. Smith in Queensland. Mr. Jaden sought the child's return to New South Wales, where he resided, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The application was heard by Carew J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the child had been wrongfully removed from Australia to Queensland, thereby constituting an abduction within the meaning of the Hague Convention. Specifically, the court was required to determine if the child's habitual residence was in New South Wales and if the removal to Queensland was contrary to Mr. Jaden's rights of custody.

Carew J considered the evidence presented by both parties regarding the child's habitual residence. The court applied the principles established in cases concerning the Hague Convention, focusing on the child's settled routine and the intentions of the parents at the time of the child's relocation. His Honour found that the child's habitual residence was indeed New South Wales and that the removal by Ms. Smith was wrongful as it was contrary to Mr. Jaden's custodial rights.

Consequently, Carew J ordered the child's immediate return to New South Wales.

Orders

Orders of the court

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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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