By Michelle Painter SC and Surya Palaniappan -
Snapshot
- Transgender children and adolescents who consent to stage 2 treatment for Gender Dysphoria, who have been determined by their doctors to be Gillick competent and whose parents do not object to the treatment, no longer have to apply to the Family Court for authorisation to proceed with treatment.
- The Family Court departed from previous authority which held otherwise, with the reasoning of the two judgments differing as to that authority.
- Despite this case not presenting the most factually suitable vehicle to determine the issue, the Court nevertheless recognised it as a case of ‘general importance’.
On 21 September 2017, a five-judge bench of the Family Court comprising Thackray, Strickland, Ainslie-Wallace, Ryan and Murphy JJ heard a landmark case, Re: Kelvin [2017] FamCAFC 258 (‘Re: Kelvin’), in which the applicant urged the Court to dispense with the need for transgender children to obtain court authorisation for commencing ‘stage 2’ medical treatment for the condition of Gender Dysphoria in adolescents and adults. On 30 November 2017, the Full Court handed down its judgment.
Background
The case was brought by a father, the applicant – whom we represented – and his courageous 17-year-old son ‘Kelvin’. Kelvin’s interests were represented by the Independent Children’s Lawyer, and there were five separate intervenors, including the Human Rights Commission and the NSW Department of Family and Community Services. Most intervenors supported the applicant’s and Kelvin’s position, except for the Secretary for the Department of Family and Community Services. The case proceeded by way of Stated Case, with six questions stated to the Full Family Court.
