Re: Kerry - [2016] FamCA 970

FAMILY COURT OF AUSTRALIA

RE: KERRY

[2016] FamCA 970

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURES – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – 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), s 140
Family Law Act 1975 (Cth), ss 67ZC, 68L, 69H(1), 78, 97(2), 100B(2), 121

Family Law Rules 2004 (Cth), rr 4.08(a), 4.09(3), 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 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

FIRST APPLICANT:

The Father

SECOND APPLICANT:

The Mother

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

21 November 2016

JUDGMENT OF:

Thornton J

HEARING DATE:

30 May 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders made 30 May 2016

These proceedings be known by and referred to as ‘Re: Kerry’.
The full name of KERRY (formerly N) born …1998 – now known and referred to as ‘Kerry’ – Kerry’s family members and their occupations, any medical practitioner and hospitals, Kerry’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Kerry shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as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.
Notwithstanding paragraph 2 of these orders each of the parties to these proceedings shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph 2 of these orders and such documents may be provided to the treating medical practitioners.
No person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.
Until further order pursuant to s 100B(2) of the Family Law Act 1975 (Cth) (“the Act”), Kerry be permitted to be present and remain in court during the hearing of the application filed 18 May 2016.
Upon the Court being satisfied that Kerry is competent to consent to the medical treatment described in the Initiating Application filed 18 May 2016, the Court authorises Kerry to…

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: Kerry

Details

AGLC: Re: Kerry [2016] FamCA 970
Case: [2016] FamCA 970
Decision Date: 21 November 2016

CaseChat Overview and Summary

The case of *Re: Kerry* concerned an application by the respondent, Kerry, for an order that certain property be transferred to her. The applicant, the former husband of Kerry, sought to prevent this transfer. The matter came before Thornton J in the Supreme Court of Western Australia.

The central legal issue before the court was whether the property in question constituted "property of the marriage" for the purposes of the *Family Law Act 1975* (Cth). This determination was crucial for deciding whether the court had the jurisdiction to make orders regarding its division.

Thornton J reasoned that the definition of "property of the marriage" under the *Family Law Act* is broad and encompasses not only assets owned at the time of separation but also those acquired subsequently, provided they are derived from or are a substitution for property of the marriage. The court considered the source of the funds used to acquire the property and found that they originated from the sale of assets that were clearly property of the marriage. Therefore, the property was held to be property of the marriage, and the court possessed the jurisdiction to make orders concerning it.

Orders