Re Lucas - [2016] FamCA 1129

FAMILY COURT OF AUSTRALIA

RE: LUCAS

[2016] FamCA 1129

FAMILY LAW – MEDICAL PROCEDURES – Gender dysphoria – Gillick competence – where all parties agree the child is Gillick competent – where despite no dispute about it, the child needs the court’s permission

FAMILY LAW – LAW REFORM – Re Jamie – where the proposed therapeutic treatment is within ordinary parental responsibility – where no court involvement is required – where there is a need for reform – where there is a need for statutory intervention in order to undo the effects of Re Jamie

Gillick v West Norfolk AHA [1968] AC 112
Re Alex (2004) 180 FLR 89
Re Darryl [2016] FamCA 720
Re Jamie (2013) 278 FLR 155
Re Martin [2015] FamCA 1189
Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218

Felicity Bell “Children with Gender Dysphoria and the Jurisdiction of the Family Court” (2015) 38(2) UNSW Law Journal 246

APPLICANTS:

The Father and the Mother

RESPONDENT:

The Department

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

22 December 2016

JUDGMENT OF:

Tree J

HEARING DATE:

17 November 2016

REPRESENTATION

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

Orders

THE COURT FINDS AND IT IS DECLARED THAT:

Lucas born … 1999 is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

The full name of Lucas, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Lucas’s mother and father and any other fact or matter which may identify Lucas shall not be published in any way.
Only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer 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.
That Lucas be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he may choose.
To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Lucas have leave to publish to Lucas’s treating health practitioners a copy of these orders which are not anonymised.
Further to Orders 5 and 6 above, each of the parties to these proceedings, and Lucas himself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.
No person be permitted to search the court file in this matter without first obtaining leave of a judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Lucas has been approved by the…

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 Lucas

Details

AGLC: Re Lucas [2016] FamCA 1129
Case: [2016] FamCA 1129
Decision Date: 22 December 2016

CaseChat Overview and Summary

In *Re Lucas*, the court considered an application concerning medical treatment for a child diagnosed with gender dysphoria. The specific treatment in question was described as "stage two treatment." All parties involved, including the child, agreed that the child possessed Gillick competence, meaning they had the capacity to consent to medical treatment. Despite this agreement, the court's permission was sought for the administration of the proposed treatment.

The central legal issue before the court was whether the child, Lucas, was competent to consent to the administration of stage two treatment for gender dysphoria. A related, though not directly litigated, issue alluded to in the catchwords concerned the broader implications of the decision in *Re Jamie* and the potential need for legislative reform to clarify the role of court intervention in such matters.

Tree J found and declared that Lucas was competent to consent to the administration of stage two treatment for gender dysphoria. The court's reasoning, while not fully elaborated in the provided text, proceeded on the basis that the child met the criteria for Gillick competence. The court also made extensive orders regarding the publication of the judgment and the protection of Lucas's identity, reflecting the sensitive nature of the proceedings and the child's privacy. The court granted Lucas liberty to identify himself as the subject of the decision and permitted parties to share anonymised and, in some circumstances, non-anonymised copies of the orders and reasons with treating health practitioners.

Orders

Orders of the court

THE COURT FINDS AND IT IS DECLARED THAT:

Lucas born … 1999 is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

The full name of Lucas, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Lucas’s mother and father and any other fact or matter which may identify Lucas shall not be published in any way.

Only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer 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.

That Lucas be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he may choose.

To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Lucas have leave to publish to Lucas’s treating health practitioners a copy of these orders which are not anonymised.

Further to Orders 5 and 6 above, each of the parties to these proceedings, and Lucas himself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.

No person be permitted to search the court file in this matter without first obtaining leave of a judge.

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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