Re: Kaitlin - [2017] FamCA 83

FAMILY COURT OF AUSTRALIA

RE: KAITLIN

[2017] FamCA 83

FAMILY LAW – MEDICAL PROCEDURES – Gender dysphoria – Gillick competence – where the child is found and declared Gillick competent – where child has not undergone stage one treatment – where this case illustrates that the irreversibility of therapeutic treatment does not provide a sound, logical basis for requiring court authorisation for stage two treatment.

Family Law Act 1975 (Cth) s 121(9)
Family Law Rules 2004 (Cth) rr 4.09, 4.10

Gillick v West Norfolk AHA [1968] AC 112
Re Jamie (2013) 278 FLR 155
Re Lucas [2016] FamCA 1129
Secretary, Department of Health & Community Services v JWM &SMB (“Marion’s Case”) (1991-1992) 175 CLR 218

The Honourable Justice Strickland, “To Treat or Not to Treat: Legal Responses to Transgender Young People Revisited” delivered to the Association of Family and Conciliation Courts Chapter Conference, August 2015.

APPLICANT:

The Mother

RESPONDENT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

22 February 2017

JUDGMENT OF:

Tree J

HEARING DATE:

16 February 2017

REPRESENTATION

By Court Order the solicitors’ names have been suppressed

Orders

To the extent that they are applicable, compliance with Family Law Rule 4.09 and 4.10 is dispensed with.
The child Kaitlin (born male name X) on … 2000 is found and declared to be competent to consent to the administration of Stage Two treatment for the condition called Gender Dysphoria in Adolescents and Adults.
Save as otherwise provided in these orders:
(a)The full names of Kaitlin (and her former name X), her family members, her hospital, medical practitioners, schools, employers, this Court’s file number, the State …, the name of the parents, lawyer and any other fact or matter that may identify Kaitlin, shall not be published in any way; and
(b)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’ real names) shall be released by the court to non-parties without further contrary order of a judge.
Kaitlin be at liberty to identify herself as the subject of this Application and as the child subject of this decision if she may choose.
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 mother and father and Kaitlin have leave to publish to Kaitlin’s treating health practitioners a copy of these orders which are not anonymised.
Further to Order 4 and 5 above, each of the parties to the proceedings and Kaitlin herself shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.
No person be permitted to search the court file of this matter without first obtaining leave of a judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication…

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: Kaitlin

Details

AGLC: Re: Kaitlin [2017] FamCA 83
Case: [2017] FamCA 83
Decision Date: 22 February 2017

CaseChat Overview and Summary

This matter concerned an application before Tree J in the Family Court of Australia regarding the child Kaitlin, born male under the name X. The central dispute involved Kaitlin's capacity to consent to medical treatment for Gender Dysphoria.

The court was required to determine whether Kaitlin was competent to consent to the administration of Stage Two treatment for Gender Dysphoria. Additionally, the court had to consider the appropriate publication and disclosure of information related to the proceedings, given the sensitive nature of the case and the identity of the child.

Tree J reasoned that Kaitlin possessed the necessary capacity to consent to the treatment. The court dispensed with compliance with Family Law Rules 4.09 and 4.10, which typically govern the capacity of a child to give consent. The court's orders reflected a strong emphasis on protecting Kaitlin's privacy and anonymity, with strict provisions against publication of identifying details. However, Kaitlin was granted liberty to identify herself as the subject of the proceedings, and her parents and treating health practitioners were permitted to receive unanonymised copies of the orders. Access to the court file was also restricted without judicial leave.

Orders

Orders of the court

To the extent that they are applicable, compliance with Family Law Rule 4.09 and 4.10 is dispensed with.

The child Kaitlin (born male name X) on … 2000 is found and declared to be competent to consent to the administration of Stage Two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

Save as otherwise provided in these orders:

(a) The full names of Kaitlin (and her former name X), her family members, her hospital, medical practitioners, schools, employers, this Court’s file number, the State …, the name of the parents, lawyer and any other fact or matter that may identify Kaitlin, shall not be published in any way; and

(b) 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’ real names) shall be released by the court to non-parties without further contrary order of a judge.

Kaitlin be at liberty to identify herself as the subject of this Application and as the child subject of this decision if she may choose.

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 mother and father and Kaitlin have leave to publish to Kaitlin’s treating health practitioners a copy of these orders which are not anonymised.

Further to Order 4 and 5 above, each of the parties to the proceedings and Kaitlin herself shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.

No person be permitted to search the court file of this matter without first obtaining leave of a judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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