According to his mother, Quinn had been dressing as a boy since he was four years old. She also stated that Quinn was very aware of the implications of surgery, the pain and discomfort it would entail, and the fact that it would affect his ability to breastfeed should he change his mind. She deposed that he had never faltered in his desire to have the operation and had become increasingly depressed as surgery had been put off pending the outcome of court processes. He had also independently researched hormone therapy and wanted to start testosterone treatment within the next twelve months. She deposed that she was confident that Quinn was “taking an intelligent, mature and measured approach to his future …” Quinn’s father and some of his treating doctors also provided evidence in terms of Quinn’s Gillick competence.

The Court examined whether there was a dispute or controversy. Although Quinn wished to have irreversible surgery, termed a stage 3 intervention, prior to commencing stage 2 treatment, there were guidelines by WPATH that considered when deviation from the stages may be suitable – for instance when the circumstances of the individual child and clinical judgment would require it. In Quinn’s particular situation, he had not yet embarked on stage 2 treatment, which he wished to start once he turned sixteen, but he wished to have “top surgery” as soon as possible.

The surgery would greatly improve Quinn’s quality of life, in terms of reducing his gender dysphoria as well as decreasing the physiological and physical pain he was experiencing due to his large bust. Moreover, the stage 2 hormonal treatment would masculinise Quinn’s appearance, creating a hairy face and chest. The Court stated that “[t]his would be incongruent with a person with an E cup breast and would certainly contribute and potentially provoke abuse and stigmatisation” which could have a detrimental impact on Quinn’s mental state. Although society had begun to accept transgender individuals, the Court nevertheless felt that they may be less inclined to accept an individual with large breasts, coupled with facial and chest hair. This could create more confusion for Quinn, as he would have a mix of both male and female secondary sexual characteristics.

The primary disadvantage for Quinn in proceeding with “top surgery” prior to stage 2 treatment, is that the hormonal treatment is usually undertaken for 12 months, giving the person time to become socially accustomed to his new gender, before undertaking surgical procedures that are on the whole irreversible. However, Quinn’s case was unique in that his large breasts caused him both physical and psychological pain. And once he embarked on hormonal treatment, his breasts would still be noticeable, exacerbating his gender dysphoria. Quinn also had a history of depression and anxiety, and self-harm. The Court found that any risk of proceeding with the surgery was outweighed by the benefits that Quinn would derive from it.

The Court therefore held that it had no concerns about Quinn undergoing the surgery, rather it was concerned about the impact on Quinn were surgery to be delayed.

The primary ground of the husband’s appeal asserted that the main purpose of the trust was for the sole purpose of financing private school fees for the children.

Judge Aldridge concluded that from the terms that ‘the surplus is there for his [the child’s] benefit’. Judge Aldridge disagreed that the primary purpose of the trust was for education alone and therefore the trust had not failed.

Judges Strickland, Murphy and Kent agreed with Judge Aldridge that the child support trust did fulfill its primary purpose and that the child support trust had several purposes.

With the husband’s resulting trust argument, the court thought there was nothing novel nor contentious about the proposition that a resulting trust be set up in favour of the settlor as “part of the beneficial interest of the property in question which has not been disposed of by the express trust”.

Their Honours determined that with trusts, the circumstance determine the issue. They cited Byrnes v Kendle (2011) 243 CLR 253 where the legal effect of the child support trust was not affected by the secret intentions of the parties but the overall manifest intentions of the parties. The intentions of the parties was clear from the terms establishing the child support trust and reinforced by the circumstances. There was no express terms that the residue of the trust was to revert to the husband, nor was there any term alluding to such an outcome.

In their joint judgement Judges Strickland, Murphy and Kent stated that there was merit in the submissions made by the case guardian that:

The ordinary rules of construction as applied to the construction of contracts are applied in the interpretation of a Court Order: JKB Holdings Pty Ltd v de la Vega[2013] NSWSC 501 Lindsay J at 87;b. The fact that an inter partes contract/agreement was intended to be, and was in fact, given expression in orders of the Court must be taken into account: JKB Holdings Pty Ltd v de la Vega (above) at [82] citing Morgan v 45 Flers Avenue Pty Ltd(1987) 11 NSWLR 573 at 579;c. Where the terms of the Court’s order are sufficiently clear to govern the parties’ rights, the Court does not resort to extrinsic evidence of their intention: at 85 citing Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352: Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 at 3 to 5; andd. The same rules of construction of contracts apply to trusts: Byrnes v Kendle per Heydon and Crennan JJ at 102.
Judges Strickland, Murphy and Kent found no merit in the husband’s contention that he retain any beneficial interest in the child support trust. Their Honours consequently rejected the husband’s claim that the residue of the trust be held in a resulting trust in the husband’s favour.

• Provisions that aim to recover legitimate business costs that are not out of all proportion to the interest that it is intended to protect will not be a penalty.
• The courts will take a commercial approach in assessing similar default interest clauses. The costs that may be considered include both direct and indirect costs. These include, but are not limited to:
1. capital adequacy costs;
2. regulatory costs (compliance with Australian Prudential Standards, Basel II);
3. recovery costs;
4. provisioning costs;
5. reserve costs; and
6. head office and labour costs.