Re: Tahlia - [2017] FamCA 715

FAMILY COURT OF AUSTRALIA

RE: TAHLIA

[2017] FamCA 715

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – GENDER DYSPHORIA – Gillick competent and able to consent

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

APPLICANTS:

The Mother And The Father

FILE NUMBER: By Court Order File Number has been suppressed

DATE DELIVERED:

8 September 2017

JUDGMENT OF:

Bennett J

HEARING DATE:

8 September 2017

REPRESENTATION

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

Orders

«FCA_LD221»IT IS DECLARED:

1.That the child subject to these proceedings Tahlia born … 2001 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as she is advised by her medical practitioners.

IT IS DIRECTED:

2.The name of the child Tahlia born … 2001, Tahlia’s family members and their occupations, the hospital, Tahlia’s medical practitioners, Tahlia’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Tahlia shall not be published in any way and only anonymised Reasons for Judgment and Orders (with coversheets excluding the Registry, file number and lawyers names and details as well as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 has been handed one full copy of the Order made on 8 September 2017 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.
3.That Tahlia be at liberty to identify herself as the subject of this application and as the child the subject of the reasons for decision for these orders if she may choose.
4.That 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 Tahlia have leave to publish to Tahlia’s treating health practitioners a copy of this Order which is not anonymised.
5.That further to paragraphs 3 and 4 above, each of the parties to these proceedings, and Tahlia herself, shall be at liberty to collect by hand a full copy of the orders and my reasons for judgment published hereunder with all of the identifying details.
6.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
7.The application filed 31 August 2017 be otherwise dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Tahlia

Note: The form of the order is subject to the entry of…

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: Tahlia

Details

AGLC: Re: Tahlia [2017] FamCA 715
Case: [2017] FamCA 715
Decision Date: 8 September 2017

CaseChat Overview and Summary

In the matter of Tahlia, Bennett J of the Federal Court of Australia considered an application concerning the medical treatment of a child, Tahlia, born in 2001, for gender identity dysphoria. The proceedings involved Tahlia, her parents, and her medical practitioners.

The central legal issue before the Court was whether Tahlia, as a child, possessed the legal capacity to consent to or refuse medical treatment for her gender identity dysphoria. The Court was also required to determine the appropriate orders regarding the publication of information related to the proceedings and Tahlia's identity.

His Honour, applying principles of common law regarding the capacity of minors to consent to medical treatment, found that Tahlia was competent to make decisions about her medical treatment for gender identity dysphoria, provided she was advised by her medical practitioners. The Court made extensive orders to protect Tahlia's privacy, directing that identifying details be anonymised in published judgments and orders, with exceptions allowing parties and Tahlia herself to access full copies of the orders and reasons for judgment for the purpose of providing them to treating health practitioners. The Court also granted Tahlia liberty to identify herself as the subject of the proceedings and permitted parties to hand-deliver unanonymised copies of the order to Tahlia's treating health practitioners. The application filed on 31 August 2017 was otherwise dismissed.

Orders

Orders of the court

«FCA_LD221»IT IS DECLARED:

1. That the child subject to these proceedings Tahlia born … 2001 is competent to consent or refuse to consent to such medical treatment for gender identity dysphoria as she is advised by her medical practitioners.

IT IS DIRECTED:

2. The name of the child Tahlia born … 2001, Tahlia’s family members and their occupations, the hospital, Tahlia’s medical practitioners, Tahlia’s school, this Court, file number, the State of Australia in which the proceedings were initiated, the names of the parent’s lawyers, and any other fact or matter that may identify Tahlia 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 has been handed one full copy of the Order made on 8 September 2017 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.

3. That Tahlia be at liberty to identify herself as the subject of this application and as the child the subject of the reasons for decision for these orders if she may choose.

4. That 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 Tahlia have leave to publish to Tahlia’s treating health practitioners a copy of this Order which is not anonymised.

5. That further to paragraphs 3 and 4 above, each of the parties to these proceedings, and Tahlia herself, shall be at liberty to collect by hand a full copy of the orders and my reasons for judgment published hereunder with all of the identifying details.

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

7. The application filed 31 August 2017 be otherwise dismissed.

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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