Re: Andy

[2017] FamCA 966

FAMILY COURT OF AUSTRALIA

RE: ANDY [2017] FamCA 966

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the mother sought a declaration that the child is competent to consent to the administration of phase 2 treatment for Gender Dysphoria – Where the matter proceeded undefended by the father – Where phase 1 treatment commenced two years prior to hearing – Where the child’s treating medical professionals consider that the child is ready for phase 2 treatment – Declared  the child is Gillick Competent and can authorise his own phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them

Re: Jamie (2013) FLC 93-547
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER:

By Court Order File number is suppressed

DATE DELIVERED: 16 November 2017

JUDGMENT OF: Cleary J

HEARING DATE: 16 November 2017

REPRESENTATION

By Court Order the names of solicitors are suppressed

Orders

1. That the name of the child Andy born … 2000 (“the child”) and the names of all others involved in this matter not be released.

2. That the child is declared to be competent (Gillick Competent) to consent to ‘Phase 2’ treatment for the condition known as Gender Dysphoria, being the administration of hormonal medication to initiate the secondary sexual characteristics and appearance of the male sex.

3. That the full name of Andy, his family members, his medical practitioners, his educational institution, this Court’s file number and any other fact or matter that may identify Andy shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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 number and lawyer’s name.

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

5. That to the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Applicant shall be at liberty to provide to all persons involved with the said child’s treatment and welfare a copy of these Orders and Reasons for Judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

.

FAMILY COURT OF AUSTRALIA

The Mother

Applicant

And

The Father

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 21 September 2017 by the Mother on behalf of her son, Andy.  Andy is 17 years old.  The application is for a declaration that Andy is declared competent to consent to the administration to him of phase 2 treatment for the condition known as Gender Dysphoria.

2. The Father of Andy has also been served by email with the application and supporting material.  That happened on 21 September 2017.  The father has not filed any Response, nor has he attended Court on any occasion.

3. The matter proceeded undefended by him.  The mother discussed her application with the father and states “It is my understanding, that the Father will not oppose the making of those orders”.[1] 

   [1] Affidavit of the mother filed 21/09/2017, par 7

4. There is no contradictor to this application.  The secretary of the State Department (“the Department”) was served with relevant documents by email on 21 September 2017. 

5. On 28 September 2017 the Department responded to the solicitors for the mother, advising the secretary did not intend to intervene.[2]

   [2] Exhibit 1

Evidence

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

   (a)Initiating Application filed 21/09/2017;

   (b)Affidavit of the mother filed 21/09/2017;

   (c)Affidavit of Associate Professor M filed 21/09/2017;

   (d)Report of Dr S, consultant child, adolescent and adult psychiatrist dated 6/11/2017.

The Law

1. The law in this area is changing and developing.  Presently on the authority of the High Court decision in Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 and the decision of the Full Court of the Family Court in Re: Jamie (2013) FLC 93-547this issue requires the Court to determine Gillick Competence, the question being “Does Andy have sufficient understanding of the treatment and procedures of phase 2 treatment proposed to give a consent valid in law?”

2. If the Court determines that he does, that is the end of the matter.  If not, then the Court must consider whether to authorise parents to consent to phase 2 treatment and take into account the best interests of the child as the paramount consideration.

3. The most persuasive relevant factor would be the views of the child in accordance with his age and maturity.  The orders sought here in the form of a declaration that Andy has the capacity to make decisions about phase 2 treatment.  If I concluded that he did not, I would then consider authorising his mother to consent. 

Brief History of Relevant Facts

1. Andy was born with the physical characteristics of a female.

2. He was the only child of his parents’ short relationship.  They separated when he was about six months old.  Andy remained living with his mother and has maintained contact with his father.

3. Subsequently the mother re-partnered, and two further children were born.  That relationship ended in 2011.

4. Andy is reported by the mother as having spoken of himself as being a boy from age two to three years old.  He apparently chose to wear unisex or male clothing and became highly distressed when expected to wear a dress to start school.  Another school, which did not require uniforms, was chosen.

5. Andy did not particularly like his given name regarding it as too feminine, and ultimately came to the name “Andy” himself.  He identified as exclusively male from age nine. 

6. Andy found puberty distressing, especially breast development and menstruation. 

7. When the family moved in 2013, Andy socially transitioned so that his peers know him only as male.

8. In March 2015, aged almost 15 years, Andy met with Associate Professor M at a paediatric endocrine service.  He commenced phase 1 therapy (hormone suppression) soon after. 

9. Both Associate Professor M and Dr S consider that Andy is ready for phase 2 treatment with cross-gender hormone therapy with testosterone therapy for masculinisation. 

10. Andy was present at this hearing today, and in answer to my question confirmed the doctors’ assessments that he is keen to proceed with this therapy.  He wants to move on with his life. 

11. Phase 2 therapy is irreversible.  Associate Professor M advised the Court that patients with Gender Dysphoria, as in Andy’s case, are born in one chromosomal and phenotypic sex but identify as the opposite gender.  Associate Professor M’s opinion is that “these patients have a biological condition for which there is not yet a clear scientific explanation.” 

12. Dr S advised that Andy is in good physical health.  He noted a history of depression and deliberate self-harm in early adolescence, which was addressed by phase 1 therapy commencing. 

13. Andy is now most concerned and fearful that peers and others who know and accept him as a male will discover that he is anatomically female. 

14. He is assessed to have a well-considered wish to eliminate incongruence between his experienced and expressed gender.  He presently binds his chest and wears loose clothes.  He has a strong wish to develop a deep voice, facial hair, muscularity and increased height.  He is restricted in his ability to participate in sport and other physical activities.  He does not feel he is able to be his authentic self, a young man. 

15. There are risks associated with phase 2 therapy.  They are set out in some detail in the report of Dr S.[3]  Dr S also identified the risks of not carrying out the therapy, risks to Andy’s mental health, difficulties forming friendships and intimate relationships, possible social isolation and self-destructive behaviour.[4] 

    [3] Report of Dr S dated 6/11/2017, pars 13.1.1-13.1.3

    [4] Report of Dr S dated 6/11/2017, par 13.2

16. Andy has had the opportunity to discuss and understand the implications for his own fertility and future parenthood.

17. In six months he can make this decision himself.  He will be 18.  But at this stage of development every day counts. 

18. Andy has expressed a view which reflects a high level of maturity, in my view, that hormone therapy will not “solve everything for him” but he wants to go ahead.

19. There were assessed to be no temporary factors impairing his judgment when interviewed by Dr S.  He was clear-sighted about his situation.  Andy has the active support of his mother, who is fully informed about what phase 2 treatment entails.  With his father the position appears to be no overt support by way of attendance on doctors and this Court, but no opposition either. 

20. I am satisfied on the evidence of Andy’s mother and the two medical experts that Andy is Gillick Competent and can authorise his own phase 2 treatment. 

21. Orders are made accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 16 November 2017.

Associate: 

Date:  16 November 2017