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Latest Notable Cases samples

This is a sample (posted 19 December 2017) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Children – Special medical procedure – Full Court departs from Re: Jamie [2013] FamCAFC 110 by holding that the court’s sanction is no longer required for Stage 2 treatment of Gender Dysphoria where child is capable of giving informed consent or those with parental responsibility authorise treatment

In Re: Kelvin [2017] FamCAFC 258 (30 November 2017) a full bench of the Full Court (Thackray, Strickland, Ainslie-Wallace, Ryan & Murphy JJ) heard a case stated by Watts J in respect of an application by the father concerning the administration of “Stage 2” medical treatment for Gender Dysphoria for his then 16 year old child (“Kelvin”) who was born female but “transitioned socially as a transgender person” from Year 8 ([27]). The Court said at [6] that Gender Dysphoria was “the distress experienced by a person due to incongruence between their gender identity and their sex assigned at birth”.

The child’s father sought the Court’s sanction for the commencement of Stage 2 treatment in accordance with Re: Jamie [2013] FamCAFC 110. The Full Court held in that case that the court’s approval under s 67ZC of the Family Law Act was not required in respect of “Stage 1” treatment (known as “puberty blocking treatment”) but that Stage 2 treatment (known as “gender affirming hormone treatment”) involving the use of oestrogen or testosterone with irreversible effects would require the court’s approval.

Thackray, Strickland & Murphy JJ said from [35]:

“Kelvin has experienced all … diagnostic criteria for Gender Dysphoria since he was nine years of age.

( … )

[37] Kelvin’s history of Gender Dysphoria has resulted in significant problems with anxiety and depression including self-harming for which he has been prescribed medication. Kelvin’s mental health has improved since taking steps towards a medical transition.

[38] Kelvin has not undergone Stage 1 treatment and as a consequence has experienced female puberty which has caused him significant distress.

[39] Stage 2 treatment is necessary for Kelvin’s ongoing psychological health and overall wellbeing.

[40] Kelvin’s parents both support Kelvin commencing Stage 2 treatment for Gender Dysphoria.

[41] Kelvin is now 17 years old. He wishes to commence Stage 2 treatment for Gender Dysphoria.

Their Honours continued (from [51]):

“Between 31 July 2013 and 16 August 2017 the Family Court has dealt with 63 cases involving applications for either Stage 2 or Stage 3 treatment for Gender Dysphoria. In 62 of those cases the outcome has allowed treatment. ( … )

( … )

[65] … [A]s the Attorney-General submits, ‘s 67ZC(1) should be understood as conferring power on the Court, on the application of a parent, to grant any authorisation necessary in circumstances of the kind considered in Marion’s case’ (see Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 per Gleeson CJ and McHugh J at [51]-[53]).

[66] Similarly, the Court has power to make a declaration, on the application of a parent, that a child is Gillick competent to consent [capable of giving informed consent] to proposed treatment. ( … )

The majority continued from [121]:

“ … It is [argued] that the plurality in Marion’s case only dealt with sterilisation which was ‘non-therapeutic’, and their decision does not provide a basis for requiring court authorisation where the treatment is therapeutic.

[122] Further, it is argued that in speaking of ‘[c]ourt authorisation [being] required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave’ (at 250) the plurality in Marion’s case were still only referring to non-therapeutic sterilisation.

( … )
[126] In strict point of principle, Marion’s case is binding upon this Court only in respect of non-therapeutic sterilisation of a child who is not Gillick competent and who, by reason of disability, will never be Gillick competent. Needless to say, however, any statements by the High Court which might be seen, strictly, as obiter are, and should be, highly persuasive where relevant.

( … )

[130] As can be seen it was recognised by the plurality in Marion’s case that there is an ‘unclear dividing line between cases which must be authorised by a court and those which may not’ … Equally, the distinction between what might be regarded as ‘therapeutic’ or ‘non-therapeutic’ is in some cases by no means easy to draw. …

( … )

[137] Thus, we consider that no binding principle emerging from Marion’s case requires this Court, or required the Court in Re Jamie, to hold that court authorisation is necessary for Stage 2 treatment for Gender Dysphoria for a child who is not Gillick competent.

[138] However, dicta in Marion’s case is strongly persuasive of the proposition that the types of medical treatment for which court authorisation is required are neither closed nor confined to sterilisation of a child who is not, and never will be, Gillick competent. Rather, as a general rule, whether court authorisation is required will be dependent upon the entirety of the circumstances surrounding the particular treatment.

[139] The same dicta is indicative of the importance of ascertaining whether a particular treatment is therapeutic or non-therapeutic in treating the ‘cosmetic deformity, pathological condition or psychiatric disorder’ in question. That in turn must depend upon, among other things, evolving medical science which, notoriously, occurs at a very rapid pace.

( … )


[144] In Re Jamie the question before the Full Court was whether court authorisation was required for both Stage 1 and Stage 2 treatment of children with Gender Identity Dysphoria. In other words, were the treatments medical procedures for which consent lies outside the bounds of parental authority and require the imprimatur of the Court.

( … )

[147] … [T]he Full Court [in Re: Jamie held that] Stage 1 treatment is therapeutic in nature, and is fully reversible. Further, that it is not attended by grave risk if a wrong decision is made, and it is for the treatment of a malfunction or disease, being a psychological rather than a physiological disease. Thus, absent a controversy, it fell within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment.

( … )

 

[149] As to Stage 2 treatment … the Full Court agreed … that although Stage 2 treatment is therapeutic in nature, it was also irreversible in nature (at least not without surgery). ( … )

[150] … [R]ecalling what Brennan J said at 269 in Marion’s case, and for those reasons, it was for the Court to authorise such treatment.

( … )

[152] [The question is] … whether it is appropriate to now depart from Re Jamie in order that the law is able to effectively reflect the current state of medical knowledge. It is readily apparent that the judicial understanding of Gender Dysphoria and its reatment have fallen behind the advances in medical science.

( … )


[162] The consensus of the applicant, the ICL and all but one of the intervenors is that the development in the treatment of and the understanding of Gender Dysphoria allows this Court to depart from the decision of Re Jamie. In other words, the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment, and court authorisation is not required. ( … )

( … )

[164] The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court.

[165] … As some of the intervenors record, Re Jamie can be viewed as being decided at a particular point in time, and at a particular stage in the development of legal principle, and even more importantly of medical science … It would not be heresy to suggest that, in relation to Stage 2 treatment, Re Jamie would be decided differently today.

[166] Thus, to the extent that the question [does the Full Court confirm its decision in Re Jamie] can be answered, and despite the flaw in it, the answer is ‘no’.

[167] We note though that in answering that question we are not saying anything about the need for court authorisation where the child in question is under the care of a State Government Department. Nor, are we saying anything about the need for court authorisation where there is a genuine dispute or controversy as to whether the treatment should be administered; e.g., if the parents, or the medical professionals are unable to agree. There is no doubt that the Court has the jurisdiction and the power to address issues such as those.”
Delivering separate reasons, Ainslie-Wallace & Ryan JJ said (at [187]-[188]):

“ … We agree with the conclusion reached, that a child who is capable of giving informed consent (Gillick competent) can authorise Stage 2 treatment for Gender Dysphoria and it is not necessary for a court exercising jurisdiction under the … Act … to so find. We also agree that where a child is incapable of giving valid consent, those who have parental responsibility for the child may authorise treatment; again, without requiring the court’s imprimatur.
>Delivering separate reasons, Ainslie-Wallace & Ryan JJ said (at [187]-[188]):

“ … We agree with the conclusion reached, that a child who is capable of giving informed consent (Gillick competent) can authorise Stage 2 treatment for Gender Dysphoria and it is not necessary for a court exercising jurisdiction under the … Act … to so find. We also agree that where a child is incapable of giving valid consent, those who have parental responsibility for the child may authorise treatment; again, without requiring the court’s imprimatur.
[188] Our reasoning which leads to that conclusion differs to their Honours’ because we are of the view that the Full Court in Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547 … , having determined that Stage 2 treatment was therapeutic, should not have applied the principles propounded in … ‘Marion’s case’ … concerning authorisation of a particularly grave non-therapeutic procedure for a child who did not and would never have the capacity to consent.”

NOTE –A further 6 cases are summarised for members this month at our Members’ Home Page under “latest notable cases” under the following headings:

Property – Wife successfully appeals a roughly equal property division on the ground that the net effect of the order was not such as to divide debt associated with a failed business venture equally

Children – Primary carer mother who had engaged in parental alienation loses appeal against order that the children live with father

Subpoena – Accountant successfully objects to producing financial records of wife’s mother’s trust – Subpoena set aside on grounds of relevance and “fishing”

Children – Child born of fertilised egg implanted into surrogate mother – Genetic father held to be child’s father but genetic mother held not to be child’s mother for purpose of s 23(2)(b) of the Status of Children Act 1978 (Qld) – Surrogate mother’s application for time with child dismissed

Children – Court’s approach to Rice & Asplund at a preliminary hearing – Final order provided no means for reviewing father’s supervised time with the effect that he had no relationship with the children – Mother’s application for summary dismissal of father’s application for unsupervised time dismissed – Indefinite orders for supervision are not in the best interests of children

Child support – Applicant declared not to be father of child – Order made that mother repay him $4,142 in child support under s 143 of the Child Support (Assessment) Act