Re: Jamie - [2015] FamCA 455

FAMILY COURT OF AUSTRALIA

RE: JAMIE

[2015] FamCA 455

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a child diagnosed with gender dysphoria – where the applicants seek a declaration or finding that the child is competent to authorise her own stage two treatment – where the child’s treating medical experts and parents support the child commencing stage two treatment – assessment of whether 15 year old child is Gillick competent to consent to medical treatment – finding that the child is competent to consent and authorised to make her own decision about stage two treatment for gender dysphoria.

Application on a point of law – for declaration that competence to consent to medical treatment by a child is not required by law in the absence of any controversy on the issue – not argued having regard to the Full Court decision in Re: Jamie – application dismissed.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 43, 60CA, 60CB, 60CC, 60CE, 60CG, 67ZC, 68L, 69H, 100B
Family Law Rules 2004 (Cth) rr 4.08, 4.09, 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369
Re K (1994) FLC 92-461
Secretary Department of Health and Community Servicesv JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT:

The Mother

SECOND APPLICANT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE JUDGMENT DELIVERED:	16 June 2015
DATE ORDERS MADE:	5 June 2015

JUDGMENT OF:

Thornton J

HEARING DATE:

5 June 2015

REPRESENTATION

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

Orders made 5 June 2015

IT IS ORDERED THAT

These proceedings be known by and referred to as “Re: Jamie”.
Leave be granted for the proceedings to be heard “in camera”.
Subject to paragraph 4, the full name of the Child born … 2000 – now known and referred to as “Jamie” – Jamie’s family members and their occupations, any medical practitioner and hospitals, Jamie’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Jamie shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as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.
Jamie be at liberty to identify herself as the subject of this application and as the child the subject of the decision of the Full Court in Re Jamie [2013] FamCAFC 110 as she may choose.
Until further order pursuant to s 100B(2) of the Family Law Act 1975 (Cth), Jamie and her brother R both born … 2000, be permitted to be present and remain…

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: Jamie

Details

AGLC: Re: Jamie [2015] FamCA 455
Case: [2015] FamCA 455
Decision Date: 16 June 2015

CaseChat Overview and Summary

In the matter of *Re: Jamie*, Thornton J of the Family Court of Australia considered an application by the parents of a 15-year-old child, referred to as Jamie, who had been diagnosed with gender dysphoria. The parents sought a declaration that Jamie was competent to authorise her own stage two treatment for gender dysphoria, a course of treatment supported by her treating medical experts and her parents.

The central legal issue before the court was whether Jamie possessed the requisite capacity, often referred to as "Gillick competence," to consent to the proposed medical treatment. This involved assessing whether Jamie, at 15 years of age, had sufficient understanding and intelligence to be able to give or withhold consent to the medical intervention.

Thornton J applied the principles of Gillick competence, which require a child to demonstrate a clear and consistent understanding of the nature and implications of the proposed treatment. The court was satisfied that Jamie possessed this capacity. Consequently, the court found that Jamie was competent to consent to the administration of oestrogen by oestradiol valerate and the administration of a testosterone blocker by spironolactone, as recommended by her treating medical practitioners, for the treatment of her gender dysphoria.

The court made orders authorising Jamie to make her own decision regarding this stage two treatment. The proceedings were to be conducted and published in an anonymised manner to protect Jamie's privacy, with specific exceptions allowing for the disclosure of identifying details to her treating medical practitioners and family members.

Orders

Orders of the court

IT IS ORDERED THAT

1. These proceedings be known by and referred to as “Re: Jamie”.

2. Leave be granted for the proceedings to be heard “in camera”.

3. Subject to paragraph 4, the full name of the Child born … 2000 – now known and referred to as “Jamie” – Jamie’s family members and their occupations, any medical practitioner and hospitals, Jamie’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Jamie shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, 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.

4. Jamie be at liberty to identify herself as the subject of this application and as the child the subject of the decision of the Full Court in Re Jamie [2013] FamCAFC 110 as she may choose.

5. Until further order pursuant to s 100B(2) of the Family Law Act 1975 (Cth), Jamie and her brother R both born … 2000, be permitted to be present and remain in court during the hearing of the application filed 28 May 2015.

6. No person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.

7. Leave granted to an employee of this Court as an observer and a relative of Jamie’s family to be present in court this day.

8. Paragraph 1 of the Initiating Application filed 28 May 2015 is dismissed.

9. Upon the Court being satisfied that the child … born … 2000 ("Jamie") is competent to consent to the medical treatment described in the Initiating Application filed 28 May 2015, the Court authorises Jamie to make her own decision in relation to that treatment.

10. The treatment described in the Initiating Application filed 28 May 2015 is the administration of oestrogen by oestradiol valerate and the administration of endogenous testosterone blocker by spironolactone for the treatment of Gender Dysphoria (“Stage Two Treatment” and the “special medical procedure”) in such doses, in such a manner and with such frequency as recommended by Jamie’s treating medical practitioners including but not limited to Dr T and Associate Professor P, together with any associated, additional, consequential or necessary procedure connected with the special medical procedure.

11. Notwithstanding paragraph 3 of these orders, the applicants to these proceedings shall be at liberty to collect by hand, a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph 3 of these orders and such documents may be provided to the treating medical practitioners.

12. The applicants be at liberty to provide a copy of the unanonymised orders and the unanonymised reasons for judgment to all persons involved with Jamie's treatment.

13. The applicants’ Initiating Application filed 28 May 2015 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

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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