Re Matthew - [2018] FamCA 161

FAMILY COURT OF AUSTRALIA

RE: MATTHEW

[2018] FamCA 161

FAMILY LAW – CHILDREN – Gender Dysphoria – Stage 3 treatment – Whether Stage 3 treatment for gender dysphoria is therapeutic – Where there is no controversy – Whether the Family Court needs to determine Gillick competency where the treatment proposed is therapeutic.

Family Law Act 1975 (Cth) s 34
Family Law Rules 2004 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504
Re Kelvin (2017) FLC 93-809
Re Jamie (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

French, Robert “Declarations – Homer Simpson’s remedy – is there anything they cannot do?” [2007] Federal Judicial Scholarship 24

APPLICANTS:

The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

16 March 2018

JUDGMENT OF:

Rees J

HEARING DATE:

14 March 2018

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

That in the circumstances of this case, where the subject child has been diagnosed as suffering from Gender Dysphoria, where treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed.

IT IS ORDERED

That the application filed 30 November 2017 is otherwise dismissed.
That the full name of Matthew, 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were initiated, the name of Matthew’s parents’ lawyers, and any other fact or matter that may identify Matthew, shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to 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.

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Details

Case: [2018] FamCA 161
Decision Date: 16 March 2018

CaseChat Overview and Summary

In the matter of *Re Matthew*, Rees J of the Family Court of Australia considered an application concerning the treatment of a child diagnosed with Gender Dysphoria. The proceedings involved the subject child, Matthew, his treating practitioners, and his parents.

The central legal issue before the Court was whether an application to the Family Court was necessary before a child diagnosed with Gender Dysphoria, who was considered Gillick competent by treating practitioners, could proceed with Stage 3 treatment, particularly where there was no controversy or dispute among the parties involved.

Rees J reasoned that in the specific circumstances presented, where the child had been diagnosed with Gender Dysphoria, was deemed Gillick competent by treating practitioners, and the proposed treatment was agreed to be therapeutic and uncontroversial, no application to the Family Court was required for Stage 3 treatment to proceed. The Court declared that such an application was unnecessary in these circumstances.

Consequently, the Court ordered that the application filed on 30 November 2017 be dismissed. Further orders were made to protect the anonymity of the child and all identifying details of the case, with only anonymised reasons and orders to be released to non-parties. Leave of a Judge was required to search the Court file.

Orders

Orders of the court

IT IS DECLARED

That in the circumstances of this case, where the subject child has been diagnosed as suffering from Gender Dysphoria, where treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed.

IT IS ORDERED

That the application filed 30 November 2017 is otherwise dismissed.

That the full name of Matthew, 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 Matthew’s parents’ lawyers, and any other fact or matter that may identify Matthew, 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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