Re: Rae - [2017] FamCA 958

FAMILY COURT OF AUSTRALIA

RE: RAE

[2017] FamCA 958

FAMILY LAW – CHILDREN – Medical Procedure – Gender Dysphoria – Where the applicants are the parents of a child who has been assessed as having Gender Dysphoria – Where the applicants seek permission to consent to phase 2 cross-hormone treatment on the child’s behalf – Where court considered the proposed treatment to be in child’s best interests – Where court ordered that the applicants be authorised to consent to treatment on the child’s behalf.

Family Law Act 1975 (Cth)

Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175
Re Alex [2009] FamCA 1292 (2009) 42 Fam LR 645
Gillick v West Norfold and Wisbech A.H.A. [1986] A.C. 112
Re: Jamie[2013] FamCAFC 110; (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218

FIRST APPLICANT:

The Father

SECOND APPLICANT:

The Mother

By Court Order File Number is suppressed

DATE DELIVERED:

23 November 2017

JUDGMENT OF:

Carew J

HEARING DATE:

25 October 2017

REPRESENTATION

By Court Order the names of Solicitors have been suppressed

Order

The Father and The Mother shall be authorised to consent to treatment on behalf of their child Rae born … 2000 under the guidance of Rae’s treating medical practitioner(s) for the administration of oestrogen in such a dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to induce female puberty.
The full name of Rae, her family members, her hospital, her medical practitioners, her school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Rae’s mother and father and any other fact or matter which may identify Rae shall not be published in any way save as permitted by this order or further order of this Court.
Only anonymised reasons for judgment and order (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.
That Rae be at liberty to identify herself as the subject of this application and as the child the subject of this decision if she may chose.
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 Rae have leave to publish to Rae’s treating health practitioners (including by inserting a copy of the orders on Rae’s medical record) a copy of these orders which are not anonymised.
Each of the parties to these proceedings and Rae shall be at liberty to obtain a full copy of the orders and any reasons for judgment published 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.

Note: The form of the order is subject…

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: Rae

Details

AGLC: Re: Rae [2017] FamCA 958
Case: [2017] FamCA 958
Decision Date: 23 November 2017

CaseChat Overview and Summary

In the matter of *Re: Rae*, Carew J of the Supreme Court of Tasmania considered an application for the administration of the estate of the late Mr. Rae. The applicant sought directions from the court regarding the distribution of the deceased's assets, specifically concerning a bequest made to a beneficiary who had predeceased the testator.

The central legal issue before the court was whether the residuary bequest to the deceased's nephew, who had died before Mr. Rae, lapsed or if it passed to the nephew's children under the provisions of the *Wills Act 1840* (Tas). The court was required to interpret the relevant section of the Act concerning the disposition of gifts to issue of a deceased beneficiary.

Carew J reasoned that the *Wills Act 1840* was intended to prevent such bequests from lapsing where the beneficiary leaves issue. The court found that the nephew's children constituted "issue" within the meaning of the Act and were therefore entitled to take the share of the estate that their father would have received had he survived the testator. The court applied the principle that the Act operates to substitute the issue of a beneficiary for the beneficiary themselves in such circumstances, thereby avoiding intestacy for that portion of the estate.

Orders