Re: Sam and Terry (Gender Dysphoria) - [2013] FamCA 563

FAMILY COURT OF AUSTRALIA

RE: SAM AND TERRY (GENDER DYSPHORIA)

[2013] FamCA 563

FAMILY LAW – CHILDREN – two similar but separate cases heard together with the consent of all parties – where the children the subject of the applications are both 16 years of age – where both have been diagnosed with gender dysphoria – where the experts are agreed that neither child is Gillick-competent – where their parents have each brought an application seeking orders authorising them to consent to Stage 1 and Stage 2 treatment – whether an order of the Court is necessary, or whether consenting to Stage 1 and/or Stage 2 treatment falls within the ambit of parental responsibility – consideration of Marion’s Case – where Stage 1 treatment for each child is completely reversible and has no long-term side effects – where Stage 2 treatment carries significant risks and has irreversible effects – where the power to consent to the Stage 1 treatment proposed for the children falls within the ambit of parental responsibility – where Court authorisation is required for the proposed Stage 2 treatment – whether the treatment is in the children’s best interests – where each child has significant comorbidities including depression which has manifested in self-harm and suicidal ideation – where the expert evidence is unanimous in terms of the unlikelihood of the children’s conditions desisting – where the proposed treatment is in accordance with international guidelines and practices adopted in other hospitals in Australia – orders made enabling the parents to consent to the Stage 2 treatment proposed for their child.

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

Gillick v Norfolk Area Health Authority [1986] AC 112
In re Jane (1989) FLC 92-007
Re a Teenager (1989) FLC 92-006
Re Alex: Hormonal treatment for gender identity dysphoria (2004) FLC 93-175
Re Brodie (Special Medical Procedure) [2008] FamCA 334
Re GWW and CMW (1997) FLC 92-748
Re Jamie (Special medical procedure) [2011] FamCA 248
Re Jodie [2013] FamCA 62
Re Lucy (Gender Dysphoria) [2013] FamCA 518
Re: Sean and Russell (Special Medical Procedures) (2010) 44 Fam LR 210
Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218

APPLICANTS IN FILE …:

The parents of Sam

APPLICANTS IN FILE …:

The parents of Terry

INTERVENER:

The government department

FILE NUMBERS:

File numbers suppressed by court order

DATE DELIVERED:

31 July 2013

JUDGMENT OF:

Justice Murphy

HEARING DATE:

22 July 2013

REPRESENTATION

By court order, the names of counsel and solicitors have been suppressed.

Orders

IT IS DECLARED IN RESPECT OF THE CHILD SAM (… born … 1997) THAT:

As at 31 July 2013, Sam is not competent to give informed consent.

Stage 1 Treatment

The treatment recommended to be administered to Sam in respect of her Gender Dysphoria, namely the administration of GnHR analogue treatment (Lueprorelin Acetate, Depot Lucrin^TM) to achieve pubertal suppression (“Stage 1 Treatment”) is not treatment of a type for which authorisation by this…

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: [2013] FamCA 563
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard two similar cases together concerning the gender dysphoria of two sixteen-year-old children, Sam and Terry. The parents of each child sought court orders authorising them to consent to Stage 1 and Stage 2 medical treatments for their respective children. Expert evidence indicated that neither child was considered Gillick-competent to consent to treatment.

The court was required to determine whether court authorisation was necessary for the proposed treatments, or if consenting to such treatment fell within the scope of parental responsibility. A key consideration was the distinction between Stage 1 treatment, which was described as completely reversible with no long-term side effects, and Stage 2 treatment, which carried significant risks and irreversible effects. The court also had to assess whether the proposed treatments were in the best interests of each child, particularly in light of significant comorbidities such as depression, self-harm, and suicidal ideation.

Applying the principles established in *Marion's Case*, the court reasoned that the power to consent to Stage 1 treatment, being reversible and low-risk, fell within the ambit of parental responsibility. However, for Stage 2 treatment, which involved irreversible effects and significant risks, court authorisation was deemed necessary. The court found the expert evidence unanimous regarding the unlikelihood of the children's conditions resolving spontaneously and that the proposed treatments aligned with international guidelines and Australian medical practices.

Consequently, the court made orders authorising the parents of Sam and Terry to consent to the proposed Stage 2 treatments for their respective children, under the guidance of their treating medical practitioners. The court also made extensive orders to protect the privacy of the children, including the suppression of identifying information in any published judgments or court records.

Orders