Re: Alice

[2015] FamCA 1225

FAMILY COURT OF AUSTRALIA

RE: ALICE [2015] FamCA 1225

FAMILY LAW – CHILDREN – Where the Minister for the relevant Government Department has parental responsibility for the subject child and she lives in foster care – Where the Minister took the appropriate course in seeking a declaration from the Court that he has the authority to authorise the administration of Phase 1 treatment for the condition of Gender Dysphoria for the child in circumstances where the mother does not consent to the treatment – Where it is in the best interests of the child for the Minister to have that authority – Orders made accordingly.

Family Law Act 1975 (Cth), ss 4, 67ZC

FIRST APPLICANT: Minister for the relevant Government Department

SECOND APPLICANT: Relevant Government Department  

FIRST RESPONDENT: The Mother

SECOND RESPONDENT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 17 December 2015

JUDGMENT OF: Cleary J

HEARING DATE: 17 December 2015

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. That the Minister for the relevant Government Department, in his capacity as the ‘child welfare officer’ within the meaning of section 4 of the Family Law Act 1975 (Cth), being the person with parental responsibility for the child ALICE, may authorise the administration of Phase 1 treatment for the condition of childhood gender dysphoria under section 67ZC of the Family Law Act 1975 (Cth) on and from a date to be determined by the treating medical team of Alice.

2. That the full name of ALICE, her family members, her hospital, the Independent Children’s Lawyer, her medical practitioners, her school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of the Minister for the relevant Government Department’s lawyers and any other fact or matter that may identify ALICE shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, to enable their execution, and one cover sheet of Reasons for Judgment that includes the file numbers and lawyers’ name.

3. When, and if, the Applicants approach the Court in respect of Phrase 2 treatment, the matter is to be relisted in advance of that Application for consideration of the appointment of an Independent Children’s Lawyer to represent the interests of Alice.

4. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

5. Leave is granted to the Applicant to relist this matter before me in respect of the issues of the child’s name NOTING that Order 3 of the Initiating Application has not been made at this time and it is anticipated there will be no difficulties for the child using her preferred name at school.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Alice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

Minister for the relevant Government Department

First Applicant

And

The relevant Government Department

Second Applicant

And

The Mother

First Respondent

And

The Father

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application under s 67ZC of the Family Law Act 1975 (Cth) .

2. The applicants are the Minister for the relevant Government Department

   
   

   (“the Minister”) and the relevant Government Department

   
   

   (“the Department”).  The first and second respondents are the biological mother (“the mother”) and father (“the child”) of the subject child.  Both were aware of the application and were formally served yesterday.[1] 

   [1] Exhibit 1

3. The subject child is aged approximately 11 and-a-half (“the child”).  She prefers to be known as “Alice”. 

The Applications

1. The application is in the alternative - a declaration either that:

   a)The Minister, being a person with parental responsibility for the child, is not required to seek the Court’s authority for the administration of Phase 1 treatment for the condition of Childhood Gender Dysphoria; or

   b)The Minister may authorise administration of Phase 1 treatment for the said condition.

2. Phase 1 treatment would be the administration of puberty suppressing medication for the suspension of pubertal development.

3. There are also orders sought for:

   a)Suppression of identifying details;

   b)Change of the details of the child’s birth certificate; and

   c)Restriction on access to the file. 

The Evidence

1. The documents relied on in respect of the application were as follows: 

   a)   Initiating Application filed 15/12/2015;

   b)     Affidavit of Ms M (the senior case worker who has responsibility for day-to-day casework) filed 15/12/2015;

   c)     Affidavit of Dr K (a child and adolescent psychiatrist) filed 15/12/2015;

   d)     Affidavit of Dr C filed 15/12/2015;

   e)     Affidavit of Dr R (a gender counsellor) filed 15/12/2015; and

   f)   Affidavit of Professor G (a paediatric endocrinologist) filed 15/12/2015.

Short History of Relevant Events

1. The Minister has parental responsibility for the child and is supportive of, and wishes to proceed with, the administration of Phase 1 treatment.

2. The mother of the child has expressed the view that she does not accept that a child of her age is in a position to make a decision about this matter.  The mother has withdrawn from spending time with the child from the time the child indicated she would be attending contact visits with the mother as a girl. 

3. The father is generally supportive of what the child wants to do and is not concerned, but indeed, prefers that treatment go ahead if that is what the child wants.

The Issues

1. It is my view that the Minister has taken the appropriate course in seeking a declaration from the Court that he has the authority to authorise the administration of Phase 1 treatment where there is no consent, or a lack of agreement, of the mother.  Although the Minister has parental responsibility, it is appropriate and considered to seek the declaration in those circumstances. 

2. I take the following matters into account in coming to a view that it is in the best interests of the child for the Minister to have that authority.

The child’s views

1. The child herself wants the treatment. She understands that it suppresses the development of puberty and is fully reversible.  Professor G reported on 22 December 2014 that “she continues to express strong and consistent views”.

2. On 29 May 2015, in reference to the child’s decision to start attending school as a girl, at the conclusion of this term in anticipation of a full year commencing in 2016, Professor G stated that this was “well thought through and good timing”.

3. Finally, after a consultation on 8 October 2015, Professor G described the child as “convinced and confident in her course of gender transition”.

The child’s biological parents

1. The relationship between the child and her parents is that she has had no contact with the father at all.  He is presently in jail.  She has had regular visits with the mother, although those visits have recently ceased in the circumstances outlined above. 

2. The child lives with foster carers and has done since she was an infant of about four or five months old.  They are warmly supportive of her decision in respect of this treatment.

3. As stated, the biological parents are not united in response to this application.  The mother does not accept that the child understands the implications of the medication.  The mother would be supportive of an adult decision, she says, which would be in six or seven years’ time; but not now.[2] 

   [2] Affidavit of Ms M filed 15/12/2015, par 59 and Annexure KM1 (page 129)

4. The father does not oppose the treatment and is accepting of the child’s wishes.[3] 

   [3] Affidavit of Ms M filed 15/12/2015, par 162

The likely effect of a change of circumstances for the child

1. The child is likely to maintain psychological equilibrium if treatment is delivered. Suppression of puberty will apparently assist in the diagnosis of Gender Dysphoria.

2. Its suppression eases her distress about the gender issue that tends to confirm the diagnosis[4]. The benefit is that the treatment will, to quote Dr R, “prevent severe deterioration in [the child’s] emotional, psychological and physical health and well-being”.[5] 

   [4] Affidavit of Dr R filed 15/12/2015

   [5] Affidavit of Dr R filed 15/12/2015, page 4

The child’s maturity, sex, lifestyle and background

1. The child has been in care in the community since she was a baby.  She is now 11 and-a-half years old.  She has felt like a “girl inside” for many years and wishes to be a girl, to look and dress as a girl at home and, now, at school.

The child’s Aboriginality

1. The child is an Aboriginal child through the mother.  She has reported to be interested in exploring her Aboriginal culture and it may well be a matter that assists the child to make that exploration of her country and connection with culture as she goes through this phase of confirming her identity as a girl in the years to come.

Any other fact or circumstance

1. The Minister has sought all relevant advice and consulted the parents.  Despite having parental responsibility, the Minister has appropriately approached the Court for a declaration of authority to authorise treatment where one parent, who has an active relationship with the child, opposes it. 

Conclusion

1. For those reasons, I make the following orders.

I certify that the preceding twenty five (25) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

17 December 2015.

Associate: 

Date:  14 April 2016