FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Ash [2021] FedCFamC1F 100
ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
WILSON J
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Ash is Gillick competent to consent to the administration of stage 2 treatment for the condition called gender dysphoria in adolescents and adults as set out in the Diagnostic and Statistical Manual of Mental Disorders (2013).
2.The applicant has sole parental responsibility for the child.
3.Ash is permitted to receive stage 2 treatment prescribed by his clinicians at the gender service at Ash’s hospital.
4.The mother is at liberty to provide…
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Details
- AGLC
- Re: Ash [2021] FedCFamC1F 100
- Case
- [2021] FedCFamC1F 100
- Decision Date
CaseChat Overview and Summary
The case of Re: Ash involves a dispute regarding the administration of hormone treatment to a child for gender dysphoria. The parties involved are the parents of Ash, a minor, and the Independent Children’s Lawyer (ICL), who represents Ash's interests. The court was tasked with determining whether Ash, who has been experiencing gender dysphoria, is capable of making an informed decision regarding the commencement of testosterone treatment, and whether such treatment is in Ash's best interests.
The legal issues before the court included the assessment of Ash's competence to make informed decisions about medical treatment, specifically the initiation of testosterone therapy. Additionally, the court had to weigh the opinions of medical experts, Dr. G, a child and adolescent psychiatrist, and Dr. H, a paediatrician and adolescent medicine physician, who provided differing views on the necessity and appropriateness of the proposed treatment. Another key issue was the alignment of the treatment with Australian standards of care and treatment guidelines for trans and gender diverse children and adults.
The court accepted the evidence of both medical experts but found Dr. G's opinion on Ash's competence to make an informed decision regarding hormone treatment to be more convincing. Dr. G concluded that Ash met the DSM-5 criteria for gender dysphoria and was Gillick competent to make such a decision. The court also considered Dr. H's strong opinion that the procedure was necessary for Ash's welfare, essential to Ash's long-term health and wellbeing, and consistent with Australian standards of care. The court concluded that Ash's mother supported the treatment, but the father did not, and his failure to participate in the proceedings further delayed the determination of the application.
Ultimately, the court found that Ash was Gillick competent to make an informed decision regarding the commencement of testosterone treatment, and that such treatment was in Ash's best interests. The court granted the application, allowing Ash to proceed with the hormone treatment.
The legal issues before the court included the assessment of Ash's competence to make informed decisions about medical treatment, specifically the initiation of testosterone therapy. Additionally, the court had to weigh the opinions of medical experts, Dr. G, a child and adolescent psychiatrist, and Dr. H, a paediatrician and adolescent medicine physician, who provided differing views on the necessity and appropriateness of the proposed treatment. Another key issue was the alignment of the treatment with Australian standards of care and treatment guidelines for trans and gender diverse children and adults.
The court accepted the evidence of both medical experts but found Dr. G's opinion on Ash's competence to make an informed decision regarding hormone treatment to be more convincing. Dr. G concluded that Ash met the DSM-5 criteria for gender dysphoria and was Gillick competent to make such a decision. The court also considered Dr. H's strong opinion that the procedure was necessary for Ash's welfare, essential to Ash's long-term health and wellbeing, and consistent with Australian standards of care. The court concluded that Ash's mother supported the treatment, but the father did not, and his failure to participate in the proceedings further delayed the determination of the application.
Ultimately, the court found that Ash was Gillick competent to make an informed decision regarding the commencement of testosterone treatment, and that such treatment was in Ash's best interests. The court granted the application, allowing Ash to proceed with the hormone treatment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Dr G and Dr H made affidavits in this proceeding. Dr G is a child and adolescent psychiatrist. Dr H is a paediatrician and adolescent medicine physician. It is necessary to go to the details to which each deposed. DR G’S EVIDENCE Dr G deposed to treating Ash since 8 May 2020. Dr G relied on her report made 16 August addressed to the mother’s solicitor. Dr G incorporated into her report her curriculum vitae thereby enabling me to form an assessment of her evidence in accordance with authorities such as Makita (Australia) Proprietary Limited v Sprowles,[26] Dasreef Pty Ltd v Hawchar[27] and Honeysett v The Crown.[28] Dr G obtained undergraduate qualifications in medicine in ., a master’s degree in psychiatry in . and fellowship of the Royal Australian and New Zealand College of Psychiatry in …. Dr G has been practising in the field of child and adolescent psychiatry since at least 2018. In my view, no suggestion could legitimately be made that Dr G has demonstrated anything but substantial competence to express the views that Dr G has expressed in the report dated 16 August 2021. I accept Dr G evidence.[26] (2001) 42 NSWLR 705.[27] (2011) 243 CLR 588.[28] (2014) 253 CLR 112. Turning to the specifics of Dr G’s 16 August 2021 report, several important matters emerged. They included the following –(a)Dr G had seen Ash on a two to three weekly basis over 13 months prior to the report;(b)Dr G believed Ash was Gillick competent in relation to the decision making for the commencement of hormone treatment for gender dysphoria;(c)Ash began consulting Dr G in May 2020 as a result of academic struggles, anxiety and depression symptoms;(d)a psychiatric assessment suggested a primary diagnosis of attention-deficit and hyperactivity disorder for which Ash was treated daily with 20 milligrams of methylphenidate;(e)consequent upon that treatment, Ash became better engaged with school and was meeting academic requirements;(f)on 16 October 2020, Ash disclosed to Dr G that Ash had persistently identified as a male; and(g)Ash currently takes 20 milligrams daily of methylphenidate. Dr G then expressed an opinion against the criteria prescribed by DSM-5 criteria for gender dysphoria in adolescents and adults. Under category A were six subsets, two of which needed to be satisfied. One criteria needed to be satisfied under category B. Relevantly paraphrased, for each subset under category A, Dr G provided the following – Diagnostic Clarification of Gender Dysphoria, based on the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5)On assessment, Ash met the DSM V criteria for Gender Dysphoria in Adolescent and Adults.A. A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least six months’ duration, as manifested by at least two or more of the following: Ash reports that Ash’s earliest memory of not identifying with Ash’s assigned gender at birth as a female was at 5 years of age. Ash remembers how the teachers would separate the class according to gender and that it ‘didn’t feel right’ to be with the girls’ group and wanted to join the boys. However, upon contemplating and researching into Ash’s struggles, Ash said that Ash realised in mid- 2019 that Ash had Gender Dysphoria.1. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics)Ash remembers becoming distressed at the age of 12 years of age, when Ash observed the physical changes that was occurring to Ash’s body, at the commencement of puberty. Ash reported marked discomfort with observing breast development and starting sowing Ash’s own chest binders in 2019 to compress breast tissue to give the appearance of a flat chest. Since the end of 2020, Ash has been purchasing chest binders and has been wearing them on a daily basis.2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics)Ash identifies that the development of Anorexia Nervosa in 2017 was in the intention of mitigating the effects of puberty and to hinder the development of secondary sex characteristics ie breast development. Ash spoke of a strong desire to get surgery to rid Ash of breasts.3. A strong desire for the primary and/or secondary sex characteristics of the other genderAsh remembers that at the age of 6 years of age, Ash wanted to have thicker and more hair on Ash’s body as well as more defined muscles on Ash’s body. Ash spoke of continuing to have these desires and to want weight distribution to fit a typical male physique. Ash also spoke of wanting surgery to obtain male genitalia.4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender)Ash spoke of identifying as male and has strong hopeful themes of living life as a male and being treated by society as male. Ash also anticipates that Ash would feel more connected to Ash’s body and sense of self. Ash spoke of marked disconnection with Ash’s body and daily distress when looking at Ash’s body and noting the female secondary sex characteristics. Ash spoke of wanting to transition to using male pronouns at the time of transitioning.5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender)Ash spoke of a strong desire to be treated as male. Ash has noted a difference in how Ash is treated when dressed as a female compared to a male. Since Ash has transitioned to dressing as a male, Ash has given examples of how various people in the community ie retailers, have treated and spoken to Ash as a male and that this has been markedly pleasant. Ash has spoken about Ash’s hopes to develop friendships with other males Ash’s age and be treated as a male. Ash spoke of consciously avoiding social relationships given Ash’s disconnect with Ash’s assigned gender and how this would affect Ash’s friendships and how Ash is treated within these friendships.6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender)Ash reported that Ash’s interests are more consistent with what is stereotypically male. Ash also reports that Ash’s responses to various topics and ways of reacting is more consistent with what is stereotypically male. Ash has also spoken about Ash’s attraction to females and wanting to relate to Ash’s future partners as a male.
Decision
Reasons for decision
Dr H reported that the proposed procedure was "necessary for Ash's welfare", "essential to Ash's long term health and wellbeing" , "essential for Ash to maximise Ash’s emotional, social, educational and vocation potential" and was consistent with Australian standards of care and treatment guidelines for trans and gender diverse children and adults. Dr H’s opinion was unmistakable about the need for the procedure to be undertaken in relation to Ash.If the child is capable of making an informed decision about the procedure, and on what factual basis do you form your view as to the competence of the child to make an informed decision Dr H reported having known Ash for four years. Dr H assessed Ash as being very capable academically, demonstrating a high level of intelligence. Dr H entertained no doubt that Ash is Gillick competent and capable of making an informed decision regarding the commencement of testosterone treatment, Dr H and Ash having discussed the risks and benefits of treatment over multiple consultations.Whether the child agrees to the procedure Dr H reported that Ash made it clear to Dr H that Ash believes the procedure is necessary for Ash.WHETHER THE CHILD’S PARENTS AGREE TO THE PROCEDURE. In short, Dr H reported that the mother agreed but the father did not. Dr H stated that engaging with the father has delayed Ash receiving the care Ash needs.THREE HEARINGS IN THIS APPLICATION. On Wednesday, 15 September 2021, this application came before me in urgent circumstances, as has already been recorded. The father sought an opportunity to be heard. After debate, counsel for the mother and counsel for the ICL agreed to my adjourning the further hearing of this application to Friday, 17 September 2021 and that the father should have leave to put before the Court such information as he determined necessary to state the basis of his objection to this application. The father agreed to providing that information by 10 am, on Thursday, 16 September 2021, which he did. In the passages below, I have addressed the information provided by the father. On Friday, 17 September 2021, this proceeding was listed before me. At 6.16 pm the evening before – that is to say, on 16 September – and after the father provided his information recording his opposition to this application, the father sent an email to my associates stating that at 1 pm on Friday, 17 September 2021, he was flying between the Country B and Country M, and so he was “unable to attend this meeting at that date and time” (his words). The father had agreed to the further hearing on this application being conducted on Friday, 17 September 2021. His failure to participate in the proceeding on 17 September further delayed the determination of this application and inconvenienced counsel for the applicant and the ICL. Counsel selected Thursday, 22 September – today – for the further hearing. I made orders to the effect that the matter would proceed today whether or not the father participated in the hearing. Under no circumstances could it be said that he has not had notice of each hearing before me and been given an opportunity to be heard. He failed to attend today.THE MOTHER’S SUBMISSIONS.
Ratio Decidendi
Legal Principle Established
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