Re: Mackenzie

[2016] FamCA 610

FAMILY COURT OF AUSTRALIA

RE: MACKENZIE [2016] FamCA 610

FAMILY LAW – CHILDREN – Medical Procedure – where child wishes to undergo irreversible stage two treatment for gender dysphoria – where applicant is the mother – where father has not been involved with the child in years – where phase two treatment requires court authorisation unless the child is Gillick competent – where child is Gillick competent – where an order is made dispensing with the required service upon the respondent – where applications are otherwise dismissed – where orders relating to confidentiality are made 

Family Law Act 1975 (Cth) ss 34, 67ZC(1), 121(9)
Family Law Rules 2004 rr 4.09, 4.10

Re Jamie (2013) 278 FLR 155
Re Logan [2016] FamCA 87

APPLICANT: The Mother

RESPONDENT: The Father

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 27 July 2016

JUDGMENT OF: Tree J

HEARING DATE: 27 July 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS ORDERED ON A FINAL BASIS THAT

1. To the extent that they are applicable, compliance with Family Law Rule 4.09 and 4.10 is dispensed with.

AND THE COURT FINDS AND IT IS DECLARED THAT:

1. The child Mackenzie born … 2000 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:

1. (a)     The full name of Mackenzie, his family members, his hospital, the Independent Children's Lawyer, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Mackenzie’s mother’s lawyer and any other fact or matter that may identify Mackenzie shall not be published in any way; and

   (b)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.

1. 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 Applicant mother and Mackenzie have leave to publish to Mackenzie’s treating practitioners a copy of these orders and a copy of the reasons for such orders, which are not anonymised pursuant to order 3 hereof.

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

3. The Independent Children's Lawyer be forthwith discharged with the thanks of the court.

4. Otherwise the Initiating Application filed 17 May 2016 be dismissed, and the matter be removed from the list of active pending cases.    

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Mackenzie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother

Applicant

And

The Father

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for court authorisation for Mackenzie to undergo irreversible stage two treatment for his gender dysphoria.  The applicant is his mother.  The father is the named respondent, however he has not been involved in any way with Mackenzie for many years now, and his whereabouts are unknown, even to the paternal grandparents.

2. Relevant to this application are the following propositions of law from Re Jamie (2013) 278 FLR 155 at [140] per Bryant CJ:

   ·In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent;

   ·If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy;

   ·The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

3. Gillick competence is established if the child in question achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed in the treatment.  As to that, the family report writer:

   (a)assessed Mackenzie as:

   (i)of above average intelligence: [29];

   (ii)demonstrating contextually appropriate emotions: [30]; and

   (iii)giving a cogent history of gender dysphoria that clearly commenced in his early childhood: [35]; and 

   (b)recorded that Mackenzie:

   (i)had came to terms with his gender dysphoria in 2014: [36];

   (ii)had read up on his condition: [39];

   (iii)understood stage two treatment is irreversible: [39]; and

   (iv)understood his fertility will be impacted by stage 2 treatment: [41].

4. In addition, Mackenzie has been regularly receiving counselling from his GP and, in the past, has consulted a psychiatrist whose report was in evidence before me.

5. The evidence satisfies me that Mackenzie has sufficient understanding and intelligence to enable him to fully understand what is proposed by stage two treatment.  He is Gillick competent.

6. There is a somewhat sterile debate as to what relief should therefore flow (see Re Logan [2016] FamCA 87) and particularly whether it should be a finding or a declaration. I propose to make both as clearly there is power to do so: see Family Law Act ss 67ZC(1) and 34. There will therefore be orders as proposed by the independent children’s lawyer as amended during the course of submissions before me.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 July 2016.

Associate: 

Date:  27 July 2016