Re: Kate - [2015] FamCA 705

FAMILY COURT OF AUSTRALIA

RE: KATE

[2015] FamCA 705

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where applicants are the parents of a child with gender dysphoria – where the applicants seek a declaration 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 17 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.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

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

1st APPLICANT:

The Mother

2nd APPLICANT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

27 August 2015

JUDGMENT OF:

Johns J

HEARING DATE:

20 August 2015

REPRESENTATION

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

Orders

That pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth) (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 14 August 2015 be served on the prescribed child welfare authority be dispensed with.
That the name of the child Kate born … 1998, Kate’s family members and their occupations, the Hospital, Kate’s medical practitioners, Kate’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parents’ lawyers, and any other fact or matter that may identify Kate shall not be published in any way and only anonymised Reasons for Judgment and orders (with coversheets excluding the Registry, file number and lawyers’ names and details as well as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 handed one full copy of these Orders with the relevant details included for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
Upon the Court being satisfied that the child Kate born … 1998 is competent to consent to the medical treatment described in the Initiating Application filed 14 August 2015, the Court authorises Kate to make her own decision in relation to that treatment.
That the applicant mother and father be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Kate’s treatment.
That the applicants’ Initiating Application filed 14 August 2015 be otherwise…

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: Kate

Details

AGLC: Re: Kate [2015] FamCA 705
Case: [2015] FamCA 705
Decision Date: 27 August 2015

CaseChat Overview and Summary

In the matter of *Re: Kate*, Johns J of the Family Court of Australia considered an application by Kate's parents concerning medical treatment for their child, Kate, who was born in 1998. The dispute centred on the administration of oestrogen for Gender Dysphoria, with the parents seeking the court's authorisation for this treatment.

The court was required to determine whether to dispense with the usual requirement to serve the Initiating Application on the prescribed child welfare authority. Furthermore, the court had to consider whether Kate was competent to consent to the proposed medical treatment and, if so, to authorise her to make her own decision regarding that treatment. The court also had to address the publication of its reasons and orders, given the sensitive nature of the case.

Johns J applied Rule 1.12 of the Family Law Rules 2004 (Cth) to dispense with service on the child welfare authority, noting the specific circumstances of the case. The court's primary focus was on Kate's capacity to consent to the treatment. Upon being satisfied that Kate was competent, the court authorised her to make her own decision regarding the administration of oestrogen for Gender Dysphoria, under the guidance of her treating medical practitioners. The court also made extensive orders to anonymise the proceedings and restrict access to the court file to protect Kate's privacy.

Ultimately, the court dismissed the parents' Initiating Application, but this dismissal was in the context of authorising Kate to make her own treatment decisions. The court explicitly noted that the treatment in question was for Gender Dysphoria and involved the administration of oestrogen as determined by Kate's medical practitioners. The orders permitted the parents to provide un-anonymised copies of the orders and reasons to those involved in Kate's treatment.

Orders

Orders of the court

That pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth) (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 14 August 2015 be served on the prescribed child welfare authority be dispensed with.

That the name of the child Kate born … 1998, Kate’s family members and their occupations, the Hospital, Kate’s medical practitioners, Kate’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parents’ lawyers, and any other fact or matter that may identify Kate shall not be published in any way and only anonymised Reasons for Judgment and orders (with coversheets 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 handed one full copy of these Orders with the relevant details included for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.

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

Upon the Court being satisfied that the child Kate born … 1998 is competent to consent to the medical treatment described in the Initiating Application filed 14 August 2015, the Court authorises Kate to make her own decision in relation to that treatment.

That the applicant mother and father be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Kate’s treatment.

That the applicants’ Initiating Application filed 14 August 2015 be otherwise dismissed.

AND THE COURT NOTES THAT

The treatment described in the applicants’ Initiating Application filed 14 August 2015 is the following treatment for Gender Dysphoria:-

That under the guidance of Kate’s treating medical practitioners including but not limited to Dr K (Psychiatrist) and Dr O (Paediatric Endocrinologist), Kate undergo treatment by way of the administration of oestrogen, in such frequency as determined by and under the guidance of Kate’s treating medical practitioners.

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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