Re: Leo - [2015] FamCA 50

FAMILY COURT OF AUSTRALIA

RE LEO

[2015] FamCA 50

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with Gender Dysphoria – Where the applicants seek a declaration that the child is competent to authorise his own treatment for Stage 2 administration of testosterone and for male chest reconstruction surgery – Where the child is 16 years of age – Where the child was born a female and has identified and behaved as male from an early age ––– Consideration of whether the child is Gillick competent – Where the child’s treating doctors, the Independent Children’s Lawyer and the respondent support the application – Declaration made as to the child’s Gillick competence to consent to Stage 2 testosterone treatment and chest reconstruction surgery.

FAMILY LAW – EVIDENCE – MEDICAL PROCEDURES – DISPUTE – Whether there is a dispute between the child’s treating doctors regarding the child’s Gillick competence – Where there is one doctor who expressed reservations about the proposed chest reconstruction surgery in a letter to a general practitioner five months prior to the hearing date – Where that doctor subsequently retired and is not currently treating the child – Where that doctor declined to participate in the court proceedings – Where that doctor has not had the benefit of recent or frequent contact with the child or of considering the reports prepared for the proceedings – Where there is no dispute between the doctors who prepared reports for the Court – Finding that there is no dispute between the child’s treating doctors.

Family Law Rules 2004 (Cth) Rule 4.09

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie (2013) FLC 93-547

APPLICANTS:

The Father and the Mother

RESPONDENT:

Relevant Government Agency

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

6 February 2015

JUDGMENT OF:

Rees J

HEARING DATE:

3 February 2015

REPRESENTATION

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

Orders

IT IS ORDERED

That the Court declares that the child Leo born on … 1998 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court declares that the child Leo born on … 1998 is competent to consent to male chest reconstruction surgery for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.
That the full name of the child Leo, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact…

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: Leo

Details

AGLC: Re: Leo [2015] FamCA 50
Case: [2015] FamCA 50
Decision Date: 6 February 2015

CaseChat Overview and Summary

In the matter of *Re: Leo*, Rees J of the Supreme Court of [State] considered the capacity of a child, Leo, to consent to medical treatment for gender dysphoria. The dispute concerned whether Leo, a minor, possessed the maturity and understanding to consent to Stage 2 treatment for his condition, as well as male chest reconstruction surgery.

The central legal issue before the Court was to determine Leo's competence to consent to these medical interventions. This required an assessment of his capacity to understand the nature, purpose, and consequences of the proposed treatments, and to make a voluntary and informed decision.

Rees J applied the principles of common law concerning the capacity of minors to consent to medical treatment. The Court considered evidence regarding Leo's age, maturity, intelligence, and understanding of his medical condition and the proposed treatments. The reasoning focused on whether Leo had sufficient maturity to understand the nature and implications of the treatment, including its benefits, risks, and alternatives. The Court found that Leo possessed the requisite capacity to consent to both the Stage 2 treatment and the male chest reconstruction surgery.

The Court declared that Leo was competent to consent to Stage 2 treatment for gender dysphoria and to male chest reconstruction surgery. Leave was granted to apply on short notice regarding the implementation of these declarations. The Court also made extensive orders for the anonymisation of the proceedings and restricted access to the court file to protect Leo's privacy.

Orders

Orders of the court

IT IS ORDERED

That the Court declares that the child Leo born on … 1998 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

That the Court declares that the child Leo born on … 1998 is competent to consent to male chest reconstruction surgery for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.

That the full name of the child Leo, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child Leo 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 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, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

IT IS ORDERED BY CONSENT

That the independent children’s lawyer is permitted to provide a copy of this order and the judgment to Dr K.

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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