FAMILY COURT OF AUSTRALIA
| Re: ALEX | [2009] FamCA 1292 | [2010] FamCA |
| FAMILY LAW – CHILDREN – Special medical procedure – where young person born biologically female diagnosed with gender identity dysphoria – application for permission to perform bilateral mastectomies – application to issue official documentation reflecting the young person’s gender as male – applications granted |
| B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration & Multicultural & Indigenous Affairs and B (No. 3) (2004) FLC ¶ 93-174 Re: Baby A [2008] FamCA 417 Re: Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776 Re: Brodie (Special Medical Procedure) [2008] FamCA 334 Re: Inaya (2007) 213 FLR 278 Secretary, Department of Health and Community Services v JWB and SMB (Re: Marion) (1992) 175 CLR 218 |
| APPLICANT: | Government Department |
| 1st RESPONDENT: | Mother |
| 2nd RESPONDENT: | Relative |
| INDEPENDENT CHILDREN’S LAWYER: |
| INTERVENOR: | Public Advocate |
| FILE NUMBER: |
By Court order the file number is suppressed
| DATE DELIVERED: | 6 May 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ |
| HEARING DATE: | 29 and 31 October 2007 |
REPRESENTATION
By Court order the names of counsel and solicitors have been suppressed
Orders
There be a declaration made pursuant to section 67ZC(1) and (2) of the Family Law Act 1975 (Cth), that the Secretary of the Department as the legal guardian of the child ‘Alex’ pursuant to a guardianship order…be and is authorised to consent to the child undergoing bilateral mastectomies.
That the child be addressed as and accommodated by the name ‘Alex’ and it is requested that as far as is practicable all relevant Government departments and/or agencies and/or educational institutions … give effect to this order and it is further ordered that any requirements for parental consent for any purposes associated with the use of the name of ‘Alex’ as far as practicable be dispensed with and that the consent of a signature of a duly authorised officer of the Department be the sole authorisation required including but not limited to the following purposes:
(a)Any application for the issue of a passport and/or travel documentation in respect of ‘Alex’;
(b)Any application and/or request for the issue of a Medicare card in respect of ‘Alex’;
(c)Any application to any authority for identification and/or Learner’s Permit…; and
(d)Without binding the Children’s Court it is requested that in any future applications and/or orders the Court consider referring to the child by the name ‘Alex’ – and it is requested that a duly authorised officer of the Department keep the Independent Children’s Lawyer informed of all applications and processes undertaken pursuant to this paragraph.
That either or both of a duly authorised officer of the Department and the Independent Children’s Lawyer be duly authorised to communicate with, attend appointments with or without ‘Alex’ and generally facilitate the process of issuing appropriate identifying material referred to in the previous…
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- AGLC
- Re Alex [2009] FamCA 1292
- Case
- [2009] FamCA 1292
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant a declaration under section 67ZC(1) and (2) of the *Family Law Act 1975* (Cth) authorising the Secretary, as the child's legal guardian, to consent to the proposed surgical procedure. Ancillary issues included authorising the use of the name 'Alex' for official purposes and dispensing with parental consent for associated administrative processes.
The court considered the evidence regarding Alex's gender dysphoria and the significant positive psychological impact the surgery was expected to have, including reducing anxiety and affirming his male gender identity. The court weighed the irreversible nature of the surgery against Alex's expressed and demonstrated commitment to living as a male, noting expert evidence that young people presenting with gender dysphoria during puberty rarely change their minds. The court also considered the practical implications of the surgery, including recovery and scarring, finding that Alex was untroubled by these aspects. The court further considered the potential negative consequences of not performing the surgery, such as further breast growth and the need for more extensive surgery later.
The court made declarations authorising the Secretary to consent to the bilateral mastectomies. It also ordered that Alex be addressed and accommodated by the name 'Alex', and that parental consent be dispensed with for various identification and travel documents, with the consent of an authorised officer of the Department being sufficient. The court extended the appointment of the Independent Children's Lawyer and requested continued funding for their role.
Orders
Orders of the court
1.
There be a declaration made pursuant to section 67ZC(1) and (2) of the Family Law Act 1975 (Cth), that the Secretary of the Department as the legal guardian of the child ‘Alex’ pursuant to a guardianship order…be and is authorised to consent to the child undergoing bilateral mastectomies.
2.
That the child be addressed as and accommodated by the name ‘Alex’ and it is requested that as far as is practicable all relevant Government departments and/or agencies and/or educational institutions … give effect to this order and it is further ordered that any requirements for parental consent for any purposes associated with the use of the name of ‘Alex’ as far as practicable be dispensed with and that the consent of a signature of a duly authorised officer of the Department be the sole authorisation required including but not limited to the following purposes:
(a) Any application for the issue of a passport and/or travel documentation in respect of ‘Alex’;
(b) Any application and/or request for the issue of a Medicare card in respect of ‘Alex’;
(c) Any application to any authority for identification and/or Learner’s Permit…; and
(d) Without binding the Children’s Court it is requested that in any future applications and/or orders the Court consider referring to the child by the name ‘Alex’ – and it is requested that a duly authorised officer of the Department keep the Independent Children’s Lawyer informed of all applications and processes undertaken pursuant to this paragraph.
3.
That either or both of a duly authorised officer of the Department and the Independent Children’s Lawyer be duly authorised to communicate with, attend appointments with or without ‘Alex’ and generally facilitate the process of issuing appropriate identifying material referred to in the previous paragraph and to explain these orders to any person or persons considered appropriate and for the purposes of assisting in such matter the duly authorised officer and/or the Independent Children’s Lawyer is at liberty to provide any one or more of the following in support such facilitation:
(a) A copy of this order;
(b) A copy of the edited Reasons for Judgment of this Court;
(c) A copy of any expert report filed in these proceedings.
4.
That the appointment of the Independent Children’s Lawyer be extended until 7 days following the attainment of the age of majority by Alex and it is requested that Legal Aid continue to fund the Independent Children’s Lawyer for the purposes of assisting Alex in the specific circumstances of the matter.
5.
It is certified that pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel and Solicitor appearing as Counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The availability of these supports to Alex will continue until he turns 18 years of age and indeed beyond that, as the evidence is that Alex will be assisted throughout his final year at school. I place considerable weight on the availability of this assistance to Alex in what is clearly a difficult and challenging task of living life as a young man. (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The ICL submitted that this is not a factor in the current proceedings but I am not satisfied that is in fact the case. It appears to me self evident that there will be a change to Alex’s circumstances if permission to grant the surgery is given and the bilateral mastectomy is performed. On his own evidence, Alex will be able to participate in a range of activities with his peers, such as going to the beach, without the risk of his breasts being discovered. Alex will no longer have to wear a constricting undergarment or hot, uncomfortable clothing to obscure the appearance of his breasts. He will be more confident in physical interplay with his friends, male and female, and will also be emboldened to explore romantic relationships with girls. The medical evidence is that undertaking the surgery will have a positive psychological effect for Alex. It would not only reduce his anxiety at the prospect of his breasts being accidentally discovered and reduce the likelihood that he will suffer a return of his depressive thoughts and ideas of self-harm, it would also be affirmatory of his gender as male. If the surgery is performed, its effects will be irreversible. Alex’s breasts will be removed and he will not be able to breastfeed a child, should he decide some time in the future that he wishes to give birth. Alex has given this matter some thought and has devised alternatives in the event that he had a child. Alex has also made mention of the possibility of having some form of reconstructive breast surgery in the event he decides to live as a woman. I consider however, on the basis of Alex’s own views and his demonstrated commitment to a life as a male, that there is only a very small risk that Alex will change his mind about wanting to have his breasts removed. I particularly take account of Professor W’s evidence was that young people who present with gender dysphoria when puberty is well under way, as Alex did, “literally never change their mind.” In any event, that risk was only relevant for a 12 month period, as Alex could have the surgery performed of his own accord once he turned 18. I take account of the fact that in the post-operative period, drainage tubes may be required to be inserted (although this is not likely) and that Alex will be required to wear a compression vest. As Alex presently wears a constrictive undergarment to minimise the appearance of his breasts, I find he will be untroubled by this. Physically, the surgery will leave a small scar around half the circumference of both areolas, of minimal appearance. Ms A’s report states that this matter has been raised with Alex and that he is untroubled by it. If the surgery is not performed, the evidence is that there is a risk of further breast growth, meaning that a larger excision would be required if surgery were to be performed when Alex was 18 years or older with the concomitant risk of a longer recovery period and more extensive scarring.(f) the capacity of:(i) each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;