FAMILY COURT OF AUSTRALIA
RE LUCY (GENDER DYSPHORIA) [2013] FamCA 518
FAMILY LAW – CHILDREN – where the child is the subject of a long-term guardianship order in favour of the Chief Executive of the Department of Communities, Child Safety and Disability Services (“the Department”) – where the child has no parents – where the child has been diagnosed with Gender Dysphoria – where an authorised representative of the Department seeks an order pursuant to s 67ZC authorising him to consent to “Stage 1 Treatment” on behalf of the child – consideration of MIMIA v B (2004) 219 CLR 365 – consideration of the application of s 67ZC to ex-nuptial children – consideration of the limitations in s 69ZH – whether there is a “matter” to which the jurisdiction in s 67ZC can “attach” – whether the rights, duties and responsibilities comprising “guardianship” include or are included in the “matter” of “parental responsibility” in Part VII – where in light of the terms of reference pursuant to s 51(xxxvii) of the Constitution from each of the referring States, the “bundle of rights” comprising “guardianship” must be included in or itself includes “parental responsibility” – where s 69ZH only applies to States which have not referred power to legislate in respect of ex-nuptial children – where Queensland has referred power in respect of ex-nuptial children – where there is a “matter” to which the jurisdiction in s 67ZC can “attach” in the present case – whether the proposed treatment requires authorisation from the Court – consideration of Marion’s Case – where the proposed treatment is “proportionate” to and “appropriate” for the treatment of a “psychiatric disorder” – where authorisation is not required for Stage 1 Treatment in this case – whether, in any event, the order should be made – whether the treatment is in the child’s best interests – where the child has maintained an unwavering view that she is a male since she was a young child – where the child dresses as a male and identifies as a male at school – where at least three experts have diagnosed the child with Gender Dysphoria – where the proposed treatment is reversible and provides a hiatus until the child is “Gillick competent” or becomes an adult – declaration made that the applicant can consent to the proposed treatment.
Acts Interpretation Act 1901 (Cth)
Child Protection Act 1999 (Qld)
Commonwealth Powers (Family Law – Children) Act 1986 (NSW)
Commonwealth Powers (Family Law – Children) Act 1990 (Qld)
Commonwealth Powers (Family Law) Act 1986 (SA)
Commonwealth Powers (Family Law) Act 1986 (Tas)
Commonwealth Powers (Family Law – Children) Act 1986 (Vic)
Commonwealth of Australia Constitution Act 1900 (Cth)
Family Law Act 1975 (Cth)Family Law Rules 2004 (Cth)
Explanatory Memorandum, Family Law Amendment Bill 1987 (Cth)
Explanatory Memorandum, Family Law Reform Bill 1994 (Cth)
Fountain v Alexander (1982) 150 CLR 615
Gillick v Norfolk Area Health Authority [1986] AC 112
Harris v Caladine (1991) 172 CLR 84
In re Jane
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- Case
- [2013] FamCA 518
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was to determine whether the recommended Stage 1 Treatment for Lucy's gender dysphoria constituted "treatment of a type for which the Court is required to give authorisation" under section 67ZC of the *Family Law Act 1975* (Cth). This required an assessment of the nature of the treatment and its alignment with the types of medical procedures that necessitate judicial oversight.
Justice Murphy reasoned that the Stage 1 Treatment, being a reversible hormonal therapy aimed at suppressing puberty, did not fall within the category of treatments requiring court authorisation under section 67ZC. The Court concluded that the Director-General of the Department of Communities, Child Safety and Disability Services, acting under the *Child Protection Act 1999* (Qld), possessed the authority to consent to this treatment on behalf of the child, provided it was recommended by the child's treating medical practitioners. This decision was made to protect the child's welfare and privacy, with strict orders issued regarding the publication of identifying information.
Orders
Orders of the court
IT IS DECLARED THAT
1. The treatment recommended to be administered to the child Lucy (“the child”) born … 2000 in respect of the child’s Gender Dysphoria, namely the administration of luteinising hormone releasing hormone analogue therapy for the purpose of suppression of oestrogen and progesterone (“Stage 1 Treatment”) is not treatment of a type for which the Court is required to give authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth).
2. So as to avoid doubt, the Director-General, Department of Communities, Child Safety and Disability Services; her delegate Mr S …; or, such other person as may be delegated by her in writing, can consent to the “Stage 1 Treatment” on behalf of the child pursuant to the said Director-General’s powers, rights and responsibilities which would otherwise be vested in the child’s parents and which are conferred on her pursuant to s 13 Child Protection Act 1999 (Qld) upon recommendation from, and under the guidance of, the child’s treating medical practitioners including, but not limited to, the child’s endocrinologist, Dr C, and the child’s psychiatrists, Dr T and Dr B, until such time as the child shall have reached such sufficient age and maturity such that the child is competent to authorise and consent to that treatment.
IT IS FURTHER ORDERED THAT
3. So as to protect the child:
a. The full name of the child, his foster family members, his solicitor, his medical practitioners, this Court’s file number, and any other fact or matter that may identify the child shall not be published in any way;
b. Only anonymised Reasons for Judgment and Orders (with coversheets excluding the registry, file number, and lawyers’ names and details, as well as the child’s real name) shall be released by the Court to non-parties without further contrary order of a judge;
c. No person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
4. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the applicant and/or the child’s lawyer shall have leave to publish to the child’s treating medical practitioners a version of these Reasons which does not encompass the restrictions set out in paragraph 3.
NOTATION :
This Order has been amended on 23 July 2013 pursuant to Rule 17.02 of the Family Law Rules 2004 by deleting in paragraph 3(a) the words “the State of Australia in which the proceedings were initiated”.
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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