Re: Larissa - [2015] FamCA 1144

FAMILY COURT OF AUSTRALIA

RE: LARISSA

[2015] FamCA 1144

CHILDREN – MEDICAL PROCEDURES – Where the applicant mother seeks a declaration that the child is competent to authorise her own stage two treatment for Gender Dysphoria – where orders have previously been made that the mother have sole parental responsibility in relation to the child’s treatment for Gender Dysphoria – where the father has not participated in the current proceedings – where the child’s treating medical experts and mother support the child commencing stage two treatment – assessment of whether 16 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.

PRACTICE AND PROCEDURE – Where the applicant seeks to dispense with the requirement under Rule 4.10 to serve a Medical Procedure Application upon persons including the prescribed child welfare authority – where there is no controversy as to the competency of the child – order that r 4.10 be dispensed with pursuant to r 1.12.

Family Law Act 1975 (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

APPLICANT:

The Mother

RESPONDENT:

The Father

FILE NUMBER: Suppressed by Court order

DATE DELIVERED:

18 December 2015

JUDGMENT OF:

Johns J

HEARING DATE:

1 December 2015

REPRESENTATION

By Court Order the names of 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 5 August 2015 be served on the prescribed child welfare authority be dispensed with.
That the name of the child Larissa (Born …) born … 1999, Larissa’s family members and their occupations, the hospital, Larissa’s medical practitioners, Larissa’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the name of the mother’s lawyer and any other fact or matter that may identify Larissa shall not be published in any way and only anonymised Reasons for Judgment and orders (with coversheets excluding the Registry, file number and lawyers’ names and details as well as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 Larissa (also known as …) born … 1999 is competent to consent…

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: Larissa

Details

AGLC: Re: Larissa [2015] FamCA 1144
Case: [2015] FamCA 1144
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of Re: Larissa, the applicant mother sought a declaration that her child, Larissa, who was 16 years old, was competent to authorise her own stage two treatment for Gender Dysphoria. Previous orders had granted the mother sole parental responsibility for the child's treatment. The father had not participated in the current proceedings. The child's treating medical experts and the mother supported the commencement of stage two treatment.

The court was required to determine whether Larissa possessed Gillick competence, meaning she had sufficient understanding and intelligence to enable her to understand as much as she can of what is proposed, and to make a decision in relation to the proposed medical treatment. The court also considered an application to dispense with the requirement to serve the Medical Procedure Application on the prescribed child welfare authority, given that there was no controversy regarding the child's competency.

Johns J found that Larissa was competent to consent to the stage two treatment for Gender Dysphoria. The court applied the principles of Gillick competence, assessing the child's maturity and understanding of the proposed treatment. The court was satisfied that Larissa had the necessary capacity to make her own decision.

Consequently, the court ordered that the requirement to serve the Initiating Application on the prescribed child welfare authority be dispensed with pursuant to rule 1.12 of the Family Law Rules 2004 (Cth). The court further declared that Larissa was authorised to make her own decision in relation to the stage two treatment for Gender Dysphoria. The court also made extensive orders regarding the anonymisation of the judgment and orders to protect Larissa's identity.

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 5 August 2015 be served on the prescribed child welfare authority be dispensed with.

That the name of the child Larissa (Born …) born … 1999, Larissa’s family members and their occupations, the hospital, Larissa’s medical practitioners, Larissa’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the name of the mother’s lawyer and any other fact or matter that may identify Larissa 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 Larissa (also known as …) born … 1999 is competent to consent to the medical treatment described in the Initiating Application filed 5 August 2015 the Court authorises Larissa to make her own decision in relation to that treatment.

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

That the applicant mother cause a sealed copy of these orders and Reasons for Judgment to be personally served upon the father.

That the applicant’s Initiating Application filed 5 August 2015 be otherwise dismissed.

AND THE COURT NOTES

The treatment described in the applicant’s Initiating Application filed 5 August 2015 is the following treatment for gender dysphoria:-

Gender Identity Dysphoria, stage two (cross-sex) hormone treatment of the child.

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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