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The Full Court has returned its decision in the case of Re Kelvin. The case is special as it relates to the Court’s jurisdiction to approve treatment for children with the condition of Gender Dysphoria and specifically, whether or not the Court’s approval is actually required. The Full Court were asked six very detailed questions in an effort to make the law on this area clear and simpler.
The Full Court found 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 Family Law Act to find so. Where a child is incapable of giving valid consent, those who have parental responsibility for the child may authorise treatment, without the Court’s authorisation.
The decision represents a significant change in the law. Parents no longer need to seek the Court’s approval which will result in children being able to access treatment more quickly, and at a significant saving to parents financially, and to both the parents and the child psychologically by avoiding litigation.
The case involved Kelvin who was born female, and at the time of delivery of judgment was about 17 years of age. Kelvin had identified as male since the age of 9 and had attended upon a number of medical and health professionals to manage his condition.
The judgment defines Gender Dysphoria as a term to describe ‘the distress experienced by a person due to incongruence between their gender identity and their sex assigned at birth.’
Kelvin’s parents did not object to the commencement of stage 2 treatment. Kelvin did not undertake stage 1 treatment and this was discussed as having a detrimental effect on him, and also the ongoing delay in having stage 2 approved, as he had gone through female puberty which caused him further significant distress.
The Full Court granted leave for four intervenors to participate in the proceedings; A Gender Agenda Inc, the Australian Human Rights Commission, the Secretary of the Department of Family and Community Services and the Royal Children’s Hospital in Victoria. The Attorney General of the Commonwealth intervened as of right under section 91(1)(b)(ii) of the Family Law Act.
The questions posed to the Full Court were:
is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent (Bryant CJ at [136-137, 140(e)]; Finn J at  and Strickland J at  Re Jamie)?
The Court determined that they had jurisdiction to determine the case. The Court considered the form and content of the case stated. His Honour Justice Watts of the Family Court amended his Reasons for Judgment to address the deficiencies.
The Court queried the appropriateness for it to determine both questions that had been put. It found that a primary judge has no power to reserve question that does not arise on the facts stated and it is appropriate for the Full Court to answer such a question. Following discussion on this, it was found it was ‘only inappropriate’ to do so, and due to the advanced stage of the case and as submitted by the Attorney General, the issues raised in the case are of “general importance” and need to be resolved “as soon as possible”. The Full Court agreed with those sentiments, and also expressed its disappointment of lack of legislative change since the delivery of Re Jamie in 2013.
To quote from the judgment at paragraph 116, the purpose of this case is for the Court to examine, “whether there is any role for the Family Court in cases where there is no dispute between parents of a child who has been diagnosed with Gender Dysphoria, and where there is also o dispute between the parents and the medical experts who propose the child undertake treatment for that dysphoria.”
The answers: Question 1, No, Question 2, No. Questions 3 to 6 were unnecesaary to answer upon question 2 being ‘No.’
Whilst the judgment of Ryan and Ainslie-Wallace JJ agreed with the conclusions of the majority (Thackray, Strickland and Murphy JJ), different reasoning was provided by their Honours.
The Court also looked at the 63 cases involving applications for either stage 2 or stage 3 treatments between 31 July 2013 and 16 August 2017. In 62 cases there was either a declaration that the child was Gillick competent to consent (26 cases0, a finding that the child was Gillick competent to consent (22 cases) or a finding of Gollick competence and making a declaration (7 cases). The Court looked at the average time delay between filing of an application and the determination by the Court and the average cost to the parties.
The outcome will be a significant relief to the children and parents of those with Gender Dysphoria.
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