Re: Jason - [2016] FamCA 772

FAMILY COURT OF AUSTRALIA

RE: JASON

[2016] FamCA 772

FAMILY LAW – CHILDREN – Where the parents sought a declaration that the child was competent to consent to phase 2 treatment for Gender Dysphoria – Where the court is satisfied the child is sufficiently competent to understand the nature of and express a decision about his receipt of phase 2 treatment –Discussion of the form the orders should take – Consideration of s 67ZC of the Family Law Act 1975 (Cth) – Where it is appropriate to make a declaratory order – Declared that the child is competent 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 67ZC, 94(1), 121(9)

Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
Hay v Hay (1998) FLC 92-819
Re: Jacinta [2015] FamCA 1196
Re: Jamie (2013) FLC 93-547
Re: Logan [2016] FamCA 87
Re: Mackenzie [2016] FamCA 610
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218
Yule v Junek (1978) 139 CLR 1

1st APPLICANT:

The Father

2nd APPLICANT:

The Mother

RESPONDENT:

Relevant Government Department

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

9 September 2016

JUDGMENT OF:

Justice Austin

HEARING DATE:

9 September 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

The Court declares that Jason (formerly known by female name X) born on … 2000 (“the child”), is competent to consent to the administration to him 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 his family members and his 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the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.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 Applicants 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: Jason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order…

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: Jason

Details

AGLC: Re: Jason [2016] FamCA 772
Case: [2016] FamCA 772
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the matter of Re: Jason, Justice Austin of the Family Court of Australia considered an application by the parents of a child, Jason, for a declaration regarding the child's competence to consent to phase 2 treatment for Gender Dysphoria.

The central legal issue before the Court was whether Jason possessed the requisite competence to understand the nature of and consent to receiving phase 2 treatment for Gender Dysphoria. This required an assessment of the child's capacity in accordance with relevant legal principles.

Justice Austin applied the principles governing the assessment of a child's competence to consent to medical treatment, considering the provisions of section 67ZC of the *Family Law Act 1975* (Cth). The Court was satisfied that Jason was sufficiently competent to understand the nature of and express a decision about his receipt of phase 2 treatment. The Court determined that a declaratory order was an appropriate form for the Court's decision.

The Court declared that Jason was competent to consent to phase 2 treatment for Gender Dysphoria. To protect the child's identity, orders were made suppressing the publication of any identifying information and restricting access to the Court file. Leave was also granted for the parties and the child to provide non-anonymised copies of the orders and reasons to treating practitioners, to the extent not already authorised by section 121(9) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

The Court declares that Jason (formerly known by female name X) born on … 2000 (“the child”), is competent to consent to the administration to him 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 his family members and his 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.

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 Applicants 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.