Commonwealth Numbered Regulations

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 (F2021L01197) - RULE 1.11

             (1)  This rule applies to applications:

                     (a)  for an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease; or

                     (b)  where there is a dispute about the Gillick competence of, or the diagnosis or treatment of a child for gender dysphoria as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) at 302.85 or any subsequent or similar definition.

             (2)  Any of the following may make an application to which this rule applies:

                     (a)  a parent of the child;

                     (b)  a person who has a parenting order in relation to the child;

                     (c)  the child;

                     (d)  the independent children's lawyer;

                     (e)  any other person concerned with the care, welfare and development of the child.

             (3)  If a person referred to in paragraph (2)(a) or (b) is not an applicant, the person must be named as a respondent to the application.

             (4)  If an application to which this rule applies is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.

             (5)  The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:

                     (a)  the exact nature and purpose of the proposed medical procedure;

                     (b)  the particular condition of the child for which the procedure is required;

                     (c)  the likely long-term physical, social and psychological effects on the child:

                              (i)  if the procedure is carried out; and

                             (ii)  if the procedure is not carried out;

                     (d)  the nature and degree of any risk to the child from the procedure;

                     (e)  if alternative and less invasive treatment is available--the reason the procedure is recommended instead of the alternative treatments;

                      (f)  that the procedure is necessary for the welfare of the child;

                     (g)  if the child is capable of making an informed decision about the procedure--whether the child agrees to the procedure;

                     (h)  if the child is incapable of making an informed decision about the procedure--that the child:

                              (i)  is currently incapable of making an informed decision; and

                             (ii)  is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;

                      (i)  whether the child's parents or carer agree to the procedure.

             (6)  The evidence in support of an application under this rule may be given:

                     (a)  in the form of an affidavit; or

                     (b)  with the court's permission, orally.

             (7)  An application to which this rule applies and any document filed with it must be served on the prescribed child welfare authority.