Re Lesley (Special Medical Procedure) - [2008] FamCA 1226

FAMILY COURT OF AUSTRALIA

RE LESLEY (SPECIAL MEDICAL PROCEDURE)

[2008] FamCA 1226

FAMILY LAW - CHILDREN – Special medical procedure – Gonadectomy where Child identifies as a girl – Competence of the Child – Need for Court sanction – Consideration of alternatives to the procedure – Necessity of the appointment of an Independent Children’s Lawyer – Best interests of the Child – Authorisation of parents to proceed permitted.

APPLICANT:

A HOSPITAL

RESPONDENT:

THE FATHER AND THE MOTHER

FILE NUMBER OMITTED

DATE DELIVERED:

12 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

12 December 2008

REPRESENTATION

names of representatives omitted

Orders

Only parties to the proceedings and their legal representatives may be present in Court during the proceedings in accordance with section 97(2) of the Family Law Act1975 (Cth).

The identity of the child and the Respondents in this Application not be disclosed.

A declaration in the following terms in accordance with section 67ZC of the Family Law Act 1975 (Cth):

a.the proposed surgery for Lesley involving the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, is in the best interests of Lesley; and

b.the proposed surgery for Lesley being the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

c.such further or other necessary and consequential procedures to give effect to the treatment of Lesley for her condition of 17-β/HSD deficiency, including hormonal treatment as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

d.all scientists, doctors and other medical practitioners be and are hereby authorised to conduct such operations and procedures indicated in (b) and (c) above upon the written authority of the said Father and Mother.

IT IS NOTED that publication of this judgment under the pseudonym Re Lesley (Special Medical Procedure) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

A HOSPITAL

Applicant

And

THE FATHER AND THE MOTHER

Respondent

REASONS FOR JUDGMENT

This is an application for the Court to authorise a special medical procedure commonly known as a gonadectomy
The application has been brought by the A Hospital. An affidavit was filed by leave on today's date explaining the circumstances that give rise to the hospital electing to bring the application.
As required by the Rules, the application has been served on the Queensland Department of Child Safety. The Department instructed the State Crown Law Office and a legal representative from the Crown Law Office has appeared on behalf of the Department.
The parents of the child Lesley born in […] 2004, are in Central Queensland and they have attended the proceedings by telephone link. At the request of the Court a representative of the Legal Aid Office has appeared to make submissions to whether an Independent Children's Lawyer should be appointed in this matter.

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.

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Details

Case: [2008] FamCA 1226
Decision Date: 12 December 2008

CaseChat Overview and Summary

This matter concerned an application brought before Barry J in the Family Court of Australia regarding a special medical procedure proposed for a child, Lesley. The application sought declarations concerning the best interests of Lesley and the authority of her parents to consent to the proposed surgery and related treatments.

The central legal issues before the Court were whether the proposed bilateral removal of Lesley's gonads (gonadectomy) was in her best interests, and whether her parents could lawfully authorise this procedure and any further necessary consequential treatments, including hormonal therapy, for her condition of 17-β/HSD deficiency. The Court was also required to consider the authorisation for medical practitioners to conduct these operations and procedures upon the written authority of Lesley's parents.

Barry J made declarations that the proposed gonadectomy, as outlined in the affidavits of Dr Z and Dr X, was in Lesley's best interests. The Court further declared that Lesley's parents were authorised to consent to this surgery and any other necessary and consequential procedures, including hormonal treatment, to address her condition. Consequently, all relevant medical practitioners were authorised to proceed with these operations and procedures upon receiving the written authority of Lesley's parents. The Court also made orders restricting the presence of individuals in court and prohibiting the disclosure of the identities of the child and the respondents.

Orders

Orders of the court

Only parties to the proceedings and their legal representatives may be present in Court during the proceedings in accordance with section 97(2) of the Family Law Act 1975 (Cth).

The identity of the child and the Respondents in this Application not be disclosed.

A declaration in the following terms in accordance with section 67ZC of the Family Law Act 1975 (Cth):

a. the proposed surgery for Lesley involving the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, is in the best interests of Lesley; and

b. the proposed surgery for Lesley being the bilateral removal of her gonads (“gonadectomy”), as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

c. such further or other necessary and consequential procedures to give effect to the treatment of Lesley for her condition of 17-β/HSD deficiency, including hormonal treatment as outlined in the affidavits of Dr Z and Dr X, may be authorised by her parents, …;

d. all scientists, doctors and other medical practitioners be and are hereby authorised to conduct such operations and procedures indicated in (b) and (c) above upon the written authority of the said Father and Mother.

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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