Re: Ryan - [2019] FamCA 112

FAMILY COURT OF AUSTRALIA

Re: RYAN

[2019] FamCA 112

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – where the parties are parents of a child diagnosed with gender dysphoria – where the mother supports the child undergoing Phase 3 treatment and commences proceedings to facilitate the child’s wishes – where the father opposes the child undergoing Phase 3 Treatment and seeks orders for the application to be dismissed – where Phase 3 treatment involves a bilateral mastectomy with nipple reconstruction surgery - where the Family Court of Australia has made prior orders – where the Family Court has already made a declaration that the child is competent to consent to the administration of Phase 1 and Phase 2 treatment for gender dysphoria – where an order is made that the child is competent to consent to the administration of Phase 3 treatment to himself – where the matter involves a child who is close to an age where he will be able to make all medical decisions for himself – where the child understands the nature and consequences of the treatment proposed.

Family Law Act 1975 (Cth) s67ZC

Re Kelvin (2017) 327 FLR 15
Re Jamie (2013) 278 FLR 155
Re Matthew [2018] FamCA 161

APPLICANT:

The Mother

RESPONDENT:

The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

16 January 2019

JUDGMENT OF:

Cleary J

HEARING DATE:

16 January 2019

REPRESENTATION

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

Orders

(1) Declaration that Ryan born … 2002 is competent to consent to the administration to himself of Phrase 3 treatment [“Top” surgery or “bilateral mastectomy with nipple reconstruction surgery”] for the condition Gender Dysphoria.
(2) That the full name of Ryan, his family members, his hospital, his medical practitioners, his school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, and any other fact or matter that may identify Ryan shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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 numbers and lawyers’ names.
(3) That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

THE COURT NOTES THAT

A.(A) The undertaking given by each party to the Court on 4 December 2018 is extended until Ryan reaches the age of 18.

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: Ryan

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: [2019] FamCA 112
Decision Date: 16 January 2019

CaseChat Overview and Summary

In the matter of *Re: Ryan*, Cleary J of the Family Court of Australia considered the competency of a minor, Ryan, to consent to medical treatment for gender dysphoria. The dispute concerned Ryan's capacity to consent to "Top" surgery, also known as bilateral mastectomy with nipple reconstruction surgery.

The central legal issue before the Court was whether Ryan, a person born in 2002, possessed the legal capacity to consent to the proposed medical treatment for his gender dysphoria. This required the Court to assess the maturity and understanding of the minor in relation to the nature and consequences of the medical intervention.

Cleary J applied the principles established in cases concerning the capacity of minors to consent to medical treatment, particularly the "Gillick competence" test, which assesses whether a minor under 16 years of age has sufficient understanding and intelligence to understand fully what is proposed. The Court considered evidence regarding Ryan's understanding of his condition, the proposed surgery, its risks, benefits, and alternatives. Having been satisfied that Ryan had the requisite maturity and understanding, the Court declared that he was competent to consent to the administration of the Phrase 3 treatment.

The Court made orders declaring Ryan's competency to consent to the surgery. Crucially, the Court also issued extensive non-publication orders to protect Ryan's identity, prohibiting the publication of any identifying details and restricting access to the court file without judicial leave. These orders were to remain in effect until Ryan reached the age of 18, and undertakings given by the parties were extended accordingly.

Orders

Orders of the court

(1) Declaration that Ryan born … 2002 is competent to consent to the administration to himself of Phrase 3 treatment [“Top” surgery or “bilateral mastectomy with nipple reconstruction surgery”] for the condition Gender Dysphoria.

(2) That the full name of Ryan, his family members, his hospital, his medical practitioners, his school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, and any other fact or matter that may identify Ryan 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 numbers and lawyers’ names.

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

THE COURT NOTES THAT

A. (A) The undertaking given by each party to the Court on 4 December 2018 is extended until Ryan reaches the age of 18.

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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