Re: Kelvin (No 2)

[2017] FamCA 1000

FAMILY COURT OF AUSTRALIA

RE: KELVIN (NO. 2) [2017] FamCA 1000

FAMILY LAW – CHILDREN – Medical Procedures – Where a finding had previously been made that the child was Gillick competent to consent to Stage 2 treatment for Gender Dysphoria and the proceedings were otherwise adjourned pending the determination of the special case stated to the Full Court Re Kelvin [2017] FamCA 78 – Where the Full Court did not confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment requires the court’s authorisation unless the child was Gillick competent to give informed consent – Where the Full Court determined that it was not mandatory to apply to the Family Court for a determination whether the child is Gillick competent where Stage 2 treatment is proposed, the child consents to the treatment and the parents and the medical practitioners are in agreement – Where the applicant’s application for a declaration or in the alternative an order authorising Stage 2 treatment for Gender Dysphoria is dismissed – Where orders are made by consent for the child to be at liberty to identify himself as the subject of this application and the subject of the decision by the Full Court as he may choose.

Family Law Act 1975 (Cth)

Re: Jamie (2013) FLC 93-547
Re: Kelvin [2017] FamCA 78
Re: Kelvin [2017] FamCAFC 258
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

APPLICANT: The Father

RESPONDENT: Director-General, Department of Community Services

INDEPENDENT CHILDREN'S LAWYER:

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 4 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 4 December 2017

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

ORDERS

1. The applicant’s Initiating Application filed 25 January 2017 is dismissed.

2. Subject to order 4, the full name of … born … 2000 now known and referred to as “Kelvin”, his family members, his school, his medical practitioners, his counsellor, the court file number and any other fact or matter (apart from the names of the legal practitioners and the fact that Kelvin is resident in NSW) that may identify … shall not be published  in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file-number and lawyers names and details, as well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 order of a judge.

3. Orders 4 and 5 made 16 February 2017 are discharged.

4. Kelvin be at liberty to identify himself as the subject of this application and as the child the subject of the decision of the Full Court in Re: Kelvin [2017] FamCAFC 258 as he may choose.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Kelvin (No.2) 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 pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

The Father  

Applicant

And

Director-General, Department of Community Services 

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 16 February 2017 in this matter ([2017] FamCA 78) I dealt with the applicant’s Initiating Application filed 25 January 2017 for a declaration or in the alternative an order authorising Stage 2 medical treatment for Gender Dysphoria as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (DSM-5).

2. I made a finding that “Kelvin” was Gillick competent to consent to Stage 2 medical treatment for Gender Dysphoria.

3. I otherwise adjourned the proceedings pending the determination by the Full Court of the special case stated to the Full Court.

4. The Full Court last Thursday in Re: Kelvin [2017] FamCAFC 258 provided the following answers to these questions:

   Question 1:Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-547 to the effect that Stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent?

   Answer:No

   Question 2:Where:

   2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;

   2.2. The child consents to the treatment;

   2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and

   2.4. The parents of the child do not object to the treatment

   is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136-137, 140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

   Answer: No

5. Questions 3 to 6 as posed to the Full Court dealt with the issue as to what order should be made if a finding has been made that a child was Gillick competent to give informed consent to Stage 2 treatment. The Full Court found it was unnecessary to answer those questions given the negative answers given to questions 1 and 2.

6. The majority in Re: Kelvin recorded at [94] that the Attorney-General made a submission that, if the answer to Question 2 is that an application to the court is unnecessary, that may be a factor tending against the making of any order by me in the exercise of my discretion. I take that to mean any order apart from one dismissing the application. The majority found that I did not have power to ask Question 2; that it was “inappropriate” for the Full Court to answer that question; but that did not mean they could not in fact answer the question and the majority proceeded to do so. Having done so I can rely upon the answer to Question 2. I accept the Attorney-General’s submission that the negative answer to that question is a factor tending against the making of any order by me in the exercise of my discretion, save an order dismissing the application.

7. The minority answered all questions in an identical manner to the majority but on the basis that the Full Court erred in its application of Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) in Re Jamie.

8. Accordingly I dispose of this case by dismissing the applicant’s Initiating Application filed 25 January 2017. 

9. This morning the lawyer for the applicant and the Independent Children's Lawyer have asked me to consider making additional orders relating to confidentiality and giving Kelvin the liberty to identify himself as the subject of this application and as the child the subject of a decision of the Full Court in Re: Kelvin. I have been told by the Independent Children's Lawyer that she has discussed at length with Kelvin the making of such an order and she tells me it is Kelvin’s wish that the orders as sought be made. The application is supported by Kelvin’s father. I was also referred to the orders that were made by the trial judge in Re: Jamie after the Full Court had decided the appeal in that matter.

10. In relation to the orders in respect of confidentiality, I am referred to the orders made by the Full Court on 21 September 2017 which allowed material in an anonymised version to be made available to the media and to publish the fact that Kelvin was a resident of New South Wales. In all of those circumstances I am prepared to make the orders that are sought by consent and I do that in the following way:

    I make the document entitled “Proposed Minute of Order” as Exhibit 15. I make order 1 in accordance with Exhibit 15; I discharge orders 4 and 5 made by me on 16 February 2017 and I make order 3 in accordance with Exhibit 15.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 4 December 2017.

Associate: 

Date:  5.12.17