Re: Mitchell - [2017] FamCA 185

FAMILY COURT OF AUSTRALIA

RE: MITCHELL

[2017] FamCA 185

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the child wants to commence stage two treatment for Gender Dysphoria – determination of whether the child in Gillick competent - where the Court is satisfied that the child is competent to fully understand the nature and consequences of the proposed treatment and to make his own decisions with respect to that treatment - where the applicants have a right of reinstatement for a declaration of Gillick competency upon the decision of the Full Court in Re Kelvin [2017] FamCA 78.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Daniel [2017] FamCA 155
Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369
Re Kelvin [2017] FamCA 78

Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218

1st APPLICANT:

The Mother

2nd APPLICANT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

27 March 2017

JUDGMENT OF:

Johns J

HEARING DATE:

15 March 2017

REPRESENTATION

By Court Order the names of Counsel and Solicitors have been suppressed

Orders

That the name of the child, Mitchell born ... 1999, Mitchell’s family members and their occupations, the hospital, Mitchell’s medical practitioners, Mitchell’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Mitchell shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets excluding the registry, file number and lawyers names and details as well as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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That the applicants be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Mitchell’s treatment.
That upon the Court being satisfied that the child Mitchell born … 1999 is competent to consent to the medical treatment described in the Initiating Application filed 9 March 2017, the applicants’ Initiating Application filed 9 March 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.

AND THE COURT…

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: Mitchell

Details

AGLC: Re: Mitchell [2017] FamCA 185
Case: [2017] FamCA 185
Decision Date: 27 March 2017

CaseChat Overview and Summary

In *Re: Mitchell*, Johns J of the Family Court of Australia considered an application concerning the medical treatment of a child, Mitchell, born in 1999. The dispute centred on the proposed treatment for gender dysphoria, specifically stage two hormonal treatment with testosterone to masculinise his body.

The primary legal issue before the Court was whether the child, Mitchell, was competent to consent to the proposed medical treatment. This determination was to be made upon the Court being satisfied of Mitchell's competency.

Johns J applied the principles of medical consent for minors, considering the capacity of the child to understand the nature, consequences, and implications of the proposed treatment. The Court noted that the application was to be dismissed if Mitchell was found to be competent to consent, with a right of reinstatement pending the determination of a Case Stated in *Re Kelvin* [2017] FamCA 78, should any unresolved issues require judicial determination. The Court also made extensive orders for the anonymisation of the judgment and file to protect the child's privacy.

Orders

Orders of the court

That the name of the child, Mitchell born ... 1999, Mitchell’s family members and their occupations, the hospital, Mitchell’s medical practitioners, Mitchell’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Mitchell shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets 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 for provision to the treating medical practitioners and to enable their execution, and one coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.

That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

That the applicants be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Mitchell’s treatment.

That upon the Court being satisfied that the child Mitchell born … 1999 is competent to consent to the medical treatment described in the Initiating Application filed 9 March 2017, the applicants’ Initiating Application filed 9 March 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.

AND THE COURT NOTES

That the treatment described in the applicant’s Initiating Application filed 9 March 2017 is the following treatment for gender dysphoria:-

Stage two hormonal treatment with testosterone to masculinise his body.

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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