Re: Jerry

[2016] FamCA 437

FAMILY COURT OF AUSTRALIA

RE: JERRY [2016] FamCA 437

FAMILY LAW – CHILDREN – Medical procedure

Family Law Act 1975 (Cth)

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 23 May 2016

JUDGMENT OF: Hogan J

HEARING DATE: 23 May 2016

REPRESENTATION

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

Orders

IT IS ORDERED THAT

1. The Applicant shall be authorised to consent to treatment on behalf of the child, Jerry, born … 1999 (“the child”), under the guidance of the child’s treating medical practitioners including but not limited to her endocrinologist Professor B and her psychiatrist Dr S, for the administration of Progynova (Oestradiol Valerate), in such manner and with such frequency as determined in consultation with the treating medical practitioners to induce female puberty.

2. The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the Registry, file number, and lawyers’ names and details, as well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 shall be provided one full copy of this Order with the relevant details included, for provision to the treating medical practitioners (including filing on the child’s medical record) and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Jerry 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

1. By Initiating Application filed 16 May 2016, a number of orders are sought in relation to the child, Jerry, who was born in 1999.  I do not intend in these short reasons in support of the decision that I have reached - namely, that the orders sought as particularised in that Initiating Application are in Jerry’s best interests - to traverse in detail the contents of the affidavit material relied upon in support of those orders.  It is sufficient, I consider, for me to announce the conclusions I have reached on the material before me. 

2. I accept the evidence given by the various medical professionals in relation to their respective opinions as to Jerry’s capacity to make an informed decision in relation to the course of treatment proposed to take place.  I am persuaded that she is not Gillick competent at this point in time, and thus, it is necessary for the Court to make such orders as it considers in her best interests. 

3. I have, as the record will reveal, this morning invited the Respondent to the Application (Jerry’s father) to outline for me his position in relation to the Application.  I have done so given the contents of his affidavit.  To use his words, he is “impartial” in relation to the Application.  Whilst his affidavit, which again I do not intend in these reasons to outline in any detail, clearly contains his expressed concerns about the consequences for Jer of embarking upon the treatment, these concerns are not expressed such that one could conclude objectively that he is opposed to the order being made.

4. He helpfully informed me this morning (albeit by way, in a sense, of submissions rather than sworn evidence) that he is satisfied that the contents of the affidavit read in support of the Application outlines his position.  He informed me - and I intend to accept this information as both truthful and accurate - that he had shown the affidavit to Jerry; that she was aware of it; and that “they were all on the same page”.  He also outlined quite clearly that he had been provided (by the Applicant’s legal representatives) with all of the documents relied upon and that he was fully aware of the state of affairs now;  that he had no complaint with the affidavit material;  had nothing further to add;  was comfortable;  and that “all was coming along as it should”.

5. I place those remarks clearly on the record for the purpose of ensuring that the Father’s position is seen in its entirety - that is, so that the contents of the affidavit are supplemented by the position outlined by him orally this morning.

6. As I have said, I am persuaded that the order sought in the Initiating Application is one that is in Jerry’s best interests.  In arriving at that determination I take into account, as I have said, the evidence provided by each of the medical practitioners in this case – I record my acceptance of their evidence. 

7. I also take into account, particularly noting her age, the contents of an affidavit by Jerry (filed on behalf of the Applicant) in which she outlines clearly her support of such an order.  I record, in particular, that, as is noted in the Outline of Submissions prepared on behalf of the Applicant, Jerry is 100 per cent in support of the order. 

8. I also record that Jerry’s response (as just mentioned) was in capitals, which I take to be an indication of the strength of her wish; and the strength by which she wished to express those comments. 

9. I am satisfied that making the orders sought is in Jerry’s best interests.  I accept that she is, it seems, fully supported by each of her parents in such decision, and that, to quote the Father’s comments, “everyone is on the same page”. 

10. I also note that, when the matter was before me last week for an administrative reason, the lawyer who appeared on behalf of the Department, placed on the record that the Department has no concerns with the material placed before the Court;  that there was a wealth of medical evidence which supported the decision that I have made this morning;  and that, in supporting the applicant, the Department expressed the view that an order should also be made which, to the maximum extent possible, de-identifies the family, Jerry, and those associated with the treatment which will be administered as a consequence of the order made today.

11. For those very short reasons then, I will make orders in terms of clauses 1, 2 and 3 of the Initiating Application filed 16 May 2016, save that the order when issued will include specific reference to Jerry’s full name and date of birth, so that it clearly identifies her to enable provision of the same to medical practitioners – she will be sufficiently identified for that limited purpose only.  Orders have previously been made in relation to Jerry’s affidavit. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 May 2016.

Associate:                 

Date:    23 May 2016