Re: Spencer - [2014] FamCA 310

FAMILY COURT OF AUSTRALIA

RE: SPENCER

[2014] FamCA 310

FAMILY LAW – CHILDREN – MEDICAL PROCEDURE – where medical experts have diagnosed the child with gender identity dysphoria – where the child has maintained the wish to be a boy since early childhood – where the child now wishes to commence stage two treatment – consideration of whether the child is Gillick competent – where the child’s treating medical experts and parents support the child commencing stage two treatment - consideration of whether it is within the Court’s power to make the declaration sought by the parents – where declaration made as to the child’s Gillick competence.

APPLICANT:

The Mother

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

The Hospital

By Court Order the File Number is suppressed

DATE DELIVERED:

8 April 2014

JUDGMENT OF:

Johns J

HEARING DATE:

7 March 2014

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed.

Orders

That pursuant to Rule 1.12 of the Family Law Rules (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 28 February 2014 be served on the prescribed child welfare authority be dispensed with.
That the full name of SPENCER (“the child”) born … 1996, the child’s family members and their occupations, the Hospital, the Independent Children's Lawyer, the child’s medical practitioners, the child’s school, this Court file number, the State of Australia in which the proceedings were initiated, the names of the parents' lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgement and orders (with cover sheets excluding the registry, file number, and lawyers' names and details, as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 for provision to the treating medical practitioners and to enable their execution, and one cover sheet of Reasons for Judgement 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.
IT IS DECLARED IN RESPECT OF THE CHILD SPENCER that she is competent to give informed consent to the following treatment for Gender Identity Dysphoria:-
(a)That under the guidance of Spencer’s treating medical practitioners including but not limited to Dr T (Paediatrician) and Dr P (Consultant Psychiatrist), Spencer undergo treatment using oral testosterone (Andriol) capsules 40mg daily for one month and then 40mg twice daily for two months, with the frequency to be adjusted as necessary;
(b)That under the guidance of Spencer’s treating practitioners as set out at order 4(a) herein, after the first two months of treatment, Spencer commence monthly intramuscular injections of Sustanon 250 in a dose of 0.5ml monthly, to be increased to 1ml monthly depending on any adverse side effects experienced…

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: Spencer

Details

AGLC: Re: Spencer [2014] FamCA 310
Case: [2014] FamCA 310
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application concerning the medical treatment of a child, Spencer, who had been diagnosed with gender identity dysphoria. Spencer, who was biologically female but identified as male since early childhood, wished to commence stage two treatment, involving the administration of testosterone, to facilitate physical masculinisation. The application was brought by Spencer's mother, with the support of Spencer's father, the Independent Children's Lawyer, and Spencer's treating medical experts.

The central legal issues before the Court were whether Spencer possessed Gillick competence, meaning the capacity to give informed consent to the proposed stage two treatment, and if so, to make a declaration to that effect. The Court was also required to consider whether it had the power to make such a declaration and, if Spencer was not deemed competent, whether to authorise the mother to consent to the treatment on Spencer's behalf. This involved determining if the proposed treatment fell outside the scope of parental responsibility and thus required court authorisation, as established in cases like *Secretary, Department of Health and Community Services v JWB and SMB* (Marion's case).

The Court's reasoning was guided by the principles established in *Re Jamie*, which affirmed that a Gillick competent child can consent to stage two treatment for gender identity disorder. The Full Court in *Re Jamie* held that the determination of Gillick competence for such significant treatment is a matter for the Court due to the gravity of potential errors. Applying these principles, the Court examined the extensive medical and psychological evidence detailing Spencer's long-standing gender identity, the diagnosis of gender identity dysphoria, and the potential consequences of both proceeding with and withholding the proposed testosterone treatment. The Court found that Spencer possessed the necessary understanding and intelligence to fully comprehend the proposed treatment and its implications.

The Court declared that Spencer was competent to give informed consent to the specified stage two treatments for gender identity dysphoria, including the administration of oral testosterone, monthly intramuscular injections, and potentially later injections of Reandron 1000, as well as any other recommended hormonal, psychiatric, or psychological treatment. The Court ordered that a sealed copy of these orders be provided to the father, and that all other applications be dismissed. The Independent Children's Lawyer was directed to explain the orders to Spencer and would then be discharged.

Orders