Re: Ash
[2021] FedCFamC1F 100
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Ash [2021] FedCFamC1F 100
File number(s): By court order file number is suppressed Judgment of: WILSON J Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – PARENTING – GENDER DYSPHORIA – Gillick Competent. Legislation: Family Law Act 1975 ss 60CA, 60CB, 60CC, 61(1), 61DA(4) 65D(1), 67ZC, 67ZC(1) 67ZC(2), 121, 121(9), 121(1)(g). Cases cited: In Re a Teenager (1988) 13 Fam LR 85
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Commonwealth v Baume (1905) 2 CLR 405
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commonwealth v Yarmirr (2001) 208 CLR 1
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218
Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Honeysett v The Crown (2014) 253 CLR 112
Re Jodie [2013] FamCA 62
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Re Lucy (Gender Dysphoria) (2013) 286 FLR 327
Makita (Australia) Proprietary Limited v Sprowles (2001) 42 NSWLR 705
Northern Territory v Collins (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Addison (No 3) [2021] FamCA 232
Re Elliott [2017] FamCA 1008
Re Imogen (No 6) (2020) 61 Fam LR 344
Re Jamie (2013) 50 Fam LR 369
Re Kelvin (2017) 57 Fam LR 503
ReKelvin (2017) 57 Fam LR 503
Re Max [2021] FamCA 290
Re Ryan [2019] FamCA 112
Re Sam and Terry (gender dysphoria) (2013) 49 Fam LR 417
Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Taylor v Public Service Board (N.S.W.) (1976) 137 CLR 208
Yanner v Eaton (1999) 201 CLR 351
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 23 September 2021 Legal Representation: By court order the names of legal practitioners are suppressed 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 a copy of the un-anonymised orders and un-anonymised reasons for judgment to all persons involved in the child’s treatment.
5.The name of the child, family members and their occupations, medical practitioners, school, the court’s file number, the State or Territory of Australia in which these proceedings were initiated, the name of any lawyers in these proceedings and any other fact or matter that may identify the child shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyer’s 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 provided with copies of orders and any reasons for judgment with relevant details including the file number and lawyers’ names.
6.No persons shall be permitted to search the court file without leave of this court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under Re Ash has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By initiating application sealed on 7 September 2021, the mother applied for a collection of orders in relation to her child Ash. The pseudonym Ash has been created by the Court in an endeavour to preserve the anonymity of the person with which this application is concerned. Ash is currently 16 years of age. Those orders sought included –
(a)declaratory relief that 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);
(b)an order conferring upon the mother sole parental responsibility for Ash;
(c)an order permitting Ash to receive stage 2 treatment prescribed by Ash’s clinicians;
(d)orders prohibiting the publication of Ash’s name, details of Ash’s family members, of Ash’s medical practitioners, of Ash’s school and of any other fact that may identify Ash; and
(e)other consequential orders.
This application came before me in urgent circumstances on Wednesday, 15 September 2021. On that hearing, the mother was represented by counsel, as was the ICL. The father participated in the application by video link from Country B, where he now lives. The father opposed this application. I permitted the father to put before the Court such material as he considered appropriate to articulate the basis of his opposition to this application.
SYNOPSIS
For the reasons that follow, in my judgment a declaration as to Gillick competence in the terms sought should be made. An order should also be made that Ash receives stage 2 treatment as prescribed by her clinicians for the condition called gender dysphoria in adolescents and adults as set out in the Diagnostic and Statistical Manual of Mental Disorders (2013). An order for the mother to have sole parental responsibility in relation to Ash should be made. Non-publication orders should likewise be made. Having regard to the urgency with which this application was brought and the decision required, these reasons are necessarily of lesser intricacy than were, for example, the reasons in the lead authority on the point in Re Kelvin.[1]
[1] (2017) 57 Fam LR 503.
A CONDENSED VERSION OF THE RELEVANT HISTORY
Ash is currently 16 years of age, nearing 17. Ash’s mother and father married in late 1988, one having been born in Country C, the other in Country D, both having met while studying in the Country E. Ash’s elder sister will soon turn 21. Ash was born in Country E. In 2018 Ash’s parents separated. The father relocated to Europe and has not seen Ash since then. According to the mother, who made an affidavit in support of this application on 1 September 2019, the father has no relationship with his son from a previous relationship. Ash’s parents divorced in mid 2019.
Issues relating to Ash’s health first emerged in late 2017 when Ash was admitted to the Hospital F diagnosed with anorexia nervosa and depression, treated and discharged after 10 days, following which Ash underwent a six month outpatient treatment program for mental health support.
In April 2020 Ash told the mother that Ash had been having suicidal thoughts and felt close to a mental crisis.[2] Ash was referred to Dr G, a child and adolescent psychiatrist, who commenced seeing Ash in early May 2020.
[2] Paragraph 25 of the mother’s affidavit sworn 1 September 2021.
The mother deposed[3] to Ash telling the mother for the first time in October 2020 that Ash identified as a male. The mother deposed to not being shocked as Ash had for the preceding few months been dressing as a male, wearing a short haircut and disposing of Ash’s female clothing. The mother deposed to her expressing her unconditional love for Ash.[4] Thereafter, according to the mother,[5] Ash started to feel comfortable making other changes, including the use of a new name and a reference to new pronouns at home. The mother deposed to Ash having questioned Ash’s gender and sexuality from the age of 10, yet being unwilling to express thoughts or feelings at the time because Ash’s parents’ marriage was under strain.[6]
[3] Paragraph 28 of the mother’s affidavit sworn 1 September 2021.
[4] Ibid.
[5] Paragraph 29 of the mother’s affidavit sworn 1 September 2021.
[6] Ibid.
In October 2020 Dr G referred Ash to the care of Dr H, in respect of Ash’s episode with anorexia nervosa. Dr H treated Ash. Dr H made an affidavit in this proceeding on 30 August 2021, to which she exhibited a report as well as her curriculum vitae, but no correspondence passing between her and Ash’s parents. Instead, the mother exhibited to her affidavit an email between Dr H and the father dated 12 July 2021. On an interlocutory application of this nature, affidavit material based on information and belief is admissible despite the fact that in this instance the mother was not privy to the exchange between Dr H and the father. Be that as it may, the mother deposed to the father sending an email to Dr H dated 12 July 2021. That email provided considerable insight into the father’s attitude to Ash’s circumstances as those circumstances then presented. Suffice it to say for present purposes that the father did not embrace the notion of the proposed administration of chemicals to Ash.[7] The father stated in his opinion, that by the administration of chemicals to Ash, Dr H would be putting Ash’s life at risk and that Dr H’s proposal was no different to lobotomisation.[8]
[7] These were the words the father used.
[8] To interpolate, the father was there referring to a procedure to make a person abnormally tranquil or sluggish.
The mother deposed to Ash writing to the father directly by email on 12 July 2021. In that email, Ash sought the father’s consent to a course of treatment. Relevantly synthesised, the following are the more important passages that emerged from that email –
Dr [H] sent you an email explaining the reasons for this email. Please read that first if you haven’t already.
I have been waiting for over a year for a change in the barriers to accessing treatment for someone under 18 such as myself. This change has not happened. Although I am capable of making this decision on my own, both parents are still required to consent to my treatment. So I ask for your consent. Here are my reasons for doing so.
A consistent, definitive feeling of being a male.
As a child there was constant confusion about not having a male body, and not occupying the social role of a boy. Despite this, I was certain that I would grow up to be a man. With these circumstances, the crisis I faced around puberty was only to be expected.
I have no doubt that the rapid progression of anorexia I experienced nearly four years ago was caused by an incongruence with my body and mind. I had no words for what I was experiencing, and unfortunately all of the obvious signs of gender dysphoria were completely overlooked by the psychiatric care at the time.
Dr [H], who I have been seeing for these past years, happens to be very well versed in transgender health care, ….
I hope I have explained myself well.
The father’s reply was less than supportive. It must not be forgotten that by his email the father was communicating with his child with whom he had enjoyed no contact for over three years. The exchange was far from friendly or loving. It reflected more the expressions of an adult male possessed of very strong views on an array of issues. Those reviews included the following –
(a)doctors promoting transgenderism, being “in it for the money and to enhance their reputations with pharmaceutical companies”;[9]
[9] These words were used, verbatim.
(b)that transgenderism was promoted “only in that part of the world controlled by Jewish media”;[10]
(c)“There is ample proof that those who try to change their gender lead unhappy lives”;[11]
(d)“You made it clear that my opinion is irrelevant because your mother can pay a lawyer to get my opinion overridden. Go ahead and tell your mother to do that. I want no part of it. It is like asking me for permission to get lobotomised, to separate the two halves of your brain. That was also a popular operation 60 years ago”;[12]
(e)“I am more intelligent than your mother. It is an objective fact. She has no imagination”;[13]
(f)“A long time ago I reconciled myself to the fact that the Australian society was degenerate and corrupt”;[14]
(g)“I don’t want to agree to something that is highly damaging only for you to later blame me for having agreed. I prefer your mother to take that responsibility. I scarcely know you anymore”;[15]
(h)“You have convinced me that you never loved me. That is quite enough for me. I spent a good chunk of my life looking after (Ash’s sister) and you. Enough is enough. I want to get on with my own life”;[16]
(i)in reference to Ash’s mother, Ash’s sister and Ash, the father said, “You have all shown your true black hearts”;[17]
(j)“Maybe you have a chromosome problem. I don’t know. Neither your mother, nor this nasty Dr H have provided any information”;[18] and
(k)“Here is very different from Australia. Girls look and behave feminine, men are masculine. Everyone is very polite. There are gays, but they keep a low profile. There are no gay parades or anything like that. Girls kiss discreetly in public, but not men.”[19]
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
The mother deposed to Ash’s reaction upon receiving that email.[20] The mother said the reaction was immediate and near fatal, deposing to Ash travelling to Region J the day after receiving the father’s email, intending to jump from a cliff. Ash returned to City K later that night. Upon discussing the event with Ash, the mother deposed to Ash telling the mother that when reading the contents of the father’s email, “all of my hope was gone” (Ash’s words). The mother deposed to a degree of determination in Ash’s conveyance to the cliff. The mother said Ash saved money to pay for the public transport, took three buses with a view to getting to the intended jumping point, but the person selling the bus ticket that was needed to reach the actual cliff refused to sell the ticket to Ash.
[20] Paragraph 35 of the mother’s affidavit sworn 1 September 2021.
The mother deposed that Ash has reduced this year’s school workload.
On 17 July 2021 Ash’s father sent Ash a further email. It followed the theme of the earlier email from which extensive portions have already been quoted above. Some of the more important material arising from that email is set out below –
(a)“You essentially disowned me. In view of this, why should I care if you want to poison yourself with chemicals? I will not change my life in any way. I am out of your orbit”;[21]
(b)the father described Dr H as “that despicable liar H”;[22]
(c)“The problem is that I am a scientific person. I don’t like it when dishonest and corrupt doctors tell lies to little girls”;[23]
(d)“I’ve always been honest. Your mother is a thief, and you know it”;[24]
(e)“If you want to go ahead with a procedure that is chemical castration, you are condemning yourself to a life with no purpose and no meaning. You will be sad and lonely for all of your life. I am not speculating here. I am stating a simple fact.”[25]
[21] These words were used, verbatim.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
In two places in her affidavit, the mother deposed to Ash not having suicidal thoughts now. The mother said Ash is kind, intelligent, has a “funny sense of humour” (her words), Ash loves music, Ash lifts weights, keeps active by walking and is learning about computing. The mother said Ash is completing year 11 at secondary school and hopes to study science at university.
To her affidavit, the mother exhibited a bundle of documentation. In broad compass, that documentation was made up of the following categories –
(a)documentation with Dr H to the mother’s solicitor, Mr L, explaining such matters as –
(i)Ash’s presentation that the overarching cause of her physical and psychological distress relates to Ash’s feelings about Ash’s gender identity;
(ii)Ash’s transitioning to a male has caused Ash’s mental health to improve;
(iii)transgender identity in adolescence is not uncommon;
(iv)Ash wishes to proceed with testosterone treatment;
(v)as Ash is under 18, the consent of both parents is required before hormone treatment may be commenced;
(b)documentation with Dr H in relation to the consent Ash would be required to execute;
(c)documentation attached to emails sent by the father to Dr H;
(d)emails passing between Ash and the father canvassed above; and
(e)other documentation of no apparent relevance concerning a religious leader.
THE MEDICAL EVIDENCE
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 gender
Ash 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.
So far as category B information was concerned, Dr G reported more briefly. The doctor said the following –
B. The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Ash reports marked daily distress in occupying a body with female primary and secondary sex characteristics. Ash expressed further distress in the time delay in obtaining consent in order to commence hormonal treatment and access to the relevant surgical procedures. Ash reports that Ash’s sense of hope can fluctuate in the context of this time delay. This distress associated with the time delay can lead to periods of feeling low in mood as well as suicidal ideation, although Ash has not acted on these. Ash also reports that Ash’s mind can be pre-occupied with wanting to commence the transition process as soon as possible, which can affect Ash’s ability to concentrate on Ash’s school work and can be a hindrance to academic progress.
Based on the above, Ash meets diagnostic criteria for Gender Dysphoria in Adolescent and Adults.
Dr G then provided an opinion of Ash's capacity to consent. Dr G concluded that –
(a)Ash is capable of understanding the nature of the treatment and the risks of commencing treatment for gender dysphoria as well as the risk of not commencing treatment;
(b)Ash has discussed the nature of hormone treatment in a manner that has been appropriate to Ash's level of education and maturity;
(c)Ash has made it clear that it is Ash's strong desire to start treatment as soon as consent is obtained;
(d)Ash has demonstrated the ability to retain information provided by Dr H and to weigh the advantages and disadvantages of it;
(e)Ash is able to freely consent and has denied the existence of any undue pressure or coercion by any other person;
(f)Ash has acknowledged that the proposed treatment will not necessarily address all of Ash's psychological and social difficulties;
(g)Ash has made it clear to Dr G that Ash believes the procedure is a necessity for Ash;
(h)Ash's current cognitive and emotional capacity and Ash’s long term and ongoing engagement demonstrated that Ash is at the expected cognitive and emotional level for Ash’s age, there being no evidence of a psychiatric or cognitive condition affecting Ash's ability to consent;
(i)Dr G observed that Ash reported that transitioning will allow Ash to continue to function well in respect of academic pursuits, as well as socially engaging with Ash's peers; and
(j)Ash informed Dr G that if treatment is denied, it will be difficult for Ash to function and Ash will suffer from a high degree of anxiety and depressive symptoms associated with increase in suicide ideation and the risk of self-harm.
Dr G offered the opinion, expressed with a degree of emphasis, that Dr G entertained no doubt that Ash will suffer greatly if denied the treatment.
Dr G then stated as follows –
Denying care to Ash to support the affirmation of Ash's male identity will not be in Ash's best interests, is almost certain to cause significant harm and potentially put Ash's life at risk in the longer term by increasing the known risks of depression, self-harm and suicide attempts.
Dr G took the view the proposed treatment would allow Ash to maximise Ash's emotional, social and educational potential by allowing Ash to live within a body that is consistent with Ash's gender identity. Dr G was of the opinion that Ash is Gillick competent in relation to decision making for the commencement of treatment for gender dysphoria.
DR H’S EVIDENCE
Dr H made an affidavit on 30 August 20201. To that Dr H exhibited her curriculum vitae and report prepared by Dr H dated 5 August 2021. Taking first Dr H’s curriculum vitae, the doctor obtained undergraduate qualifications in science in …, with honours, a bachelor degree in medicine and surgery in …, fellowship of the Royal Australasian College of Physicians in the paediatric and child health division in …., and RACP specialist recognition in ….. Dr H has published widely since ….. In my view, Dr H meets all the applicable criteria to enable her to give expert evidence in this case in her field as a general paediatrician and adolescent medicine physician.
It is necessary to record the more important matters that emerge from Dr H’s report. In formulating that report, Dr H was requested to answer certain specific questions. Much of the history, as narrated by Dr H, was consistent with the version of events given by the mother, including certain correspondence involving the father. I shall pass through and record Dr H’s responses to the specific questions posed to her for her answer. They were set out below in précise form.
The exact nature and purpose of the proposed medical procedure
Dr H stated that she proposes to treat Ash with testosterone to masculinise Ash's body. Dr H stated that she proposes to administer an intramuscular injection of testosterone enanthate every two for four weeks, and intramuscular long-acting injection of testosterone undecanoate every two to three months plus testosterone patches and gels to be applied topically to the skin. Dr H stated that the exact form of treatment to be used and the method of its administration will be individualised for Ash.
The particular condition of the child for which the procedure is required
Dr H stated the answer to this was gender dysphoria DSM-V 302.85. Dr H stated Ash meets diagnostic criteria for gender dysphoria.
The likely long term physical, social and psychological effects on the child if the procedure is carried out
Dr H itemised in 12 bullet points some of those effects. They included increased body hair, changes in physical shape and appearance, irreversible changes of voice consequent upon the growth of the larynx, increase in muscular development, a likely increase in a sense of self-confidence, a reduction in distress, a likely improvement of Ash's symptoms of depression and anxiety and likely reduction in Ash's long term risk of self-harm and suicide.
The likely long term physical, social and psychological effects on the child if the procedure is not carried out
Dr H added emphasis to a conclusion that in the absence of testosterone treatment being carried out, Ash is very likely to be unable to function to the level of her potential and that Ash will suffer from a high degree of distress.
While some of Dr H’s views under this section of the report were general and non-specific, with a corresponding generality of application, I accept that based on Dr H’s breadth of experience in the field gender dysphoria, Dr H is not only qualified to make those general statements but they are founded in scientific research and supportable medical case studies. Without Dr H’s acknowledged expertise in the field of gender dysphoria I would have attached less emphasis than I do to the following observations –
(a)adolescents with gender dysphoria who do not have access to gender affirming treatments suffer from a very high level of anxiety, depression, self-harm and attempted suicide;
(b)“I have no doubt that Ash will suffer greatly should Ash be denied the treatment that Ash needs”; and
(c)“Denying care to Ash to affirm Ash's male gender identity will not be in Ash's best interests, is almost certain to cause significant harm and potentially puts Ash's life at risk in the longer term by increasing the known risk of depression, self-harm and suicide attempts”.
The nature and degree of any risk to the child from the procedure
Dr H reported that long term outcomes of the administration of testosterone are still being studied. However, Dr H stated that the administration of testosterone may increase risk of acne, mood swings, heart disease, liver problems, increased red blood cells and the thinning of the skin in the genital area.
If alternative and less invasive treatment is available the reason the procedure is recommended instead of alternate treatment
Dr H reported that no way exists of inducing masculine changes in the body of a biological female other than by administering testosterone.
That the procedure is necessary for the welfare of the child
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.
The mother postulated three issues, the responses to which were, so she said, determinative of the application the mother has brought for the orders she seeks. Those issues were –
(a)whether Ash is Gillick competent;
(b)whether Ash suffers from gender dysphoria; and
(c)whether it is in Ash’s best interests to receive stage 2 medication.
Since the 1985 decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority,[29] the concept of Gillick competence has become well-known and understood in medicine and law relating to gender dysphoria. In this Court, issues about Gillick competence have been the subject of attention over the last decade,[30] although, little in the way of detailed analysis has been given to the circumstances arising in the facts of this case, especially where entrenched opposition and hostility is manifested by one parent. That said, where a dispute exists about whether a child is Gillick competent, and even in circumstances where treating doctors and parents agree that the child is in fact Gillick competent, that issue should be determined by the Court under section 67ZC of the Family Law Act.
[29] [1986] AC 112.
[30] Re Jodie [2013] FamCA 62; Re Lucy (Gender Dysphoria) (2013) 286 FLR 327; In Re a Teenager (1988) 13 Fam LR 85; Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192; Re Jamie (2013) 50 Fam LR 369; Re Elliott [2017] FamCA 1008; Re Ryan [2019] FamCA 112; Re Sam and Terry (gender dysphoria) (2013) 49 Fam LR 417; ReKelvin (2017) 57 Fam LR 503; Re Imogen (No 6) (2020) 61 Fam LR 344; Re Addison (No 3) [2021] FamCA 232 and Re Max [2021] FamCA 290.
In this case, the father’s position was not precisely articulated. He was generally hostile towards the family he left in 2018 and has expressed his desire to start afresh with a new family. It might fairly be viewed that his references to poisoning Ash’s body by the proposed treatment and by his analogy between the proposed procedure with a lobotomy, represent his general opposition. Among all the written material authored in this case by the father, no direct response appears to the direct question of whether he supports or opposes the proposed medical procedure or whether he agrees or disagrees that Ash is Gillick competent. I have proceeded on the basis that he opposes both.
In this case, the evidence touching upon the issue of Ash’s Gillick competence was highly persuasive. It is necessary to pass upon a few observations.
The mother is herself a medical doctor. Based on the matters to which she has deposed, I find that she is highly educated, intelligent, and very attuned to Ash, not only in general terms as a devoted mother but also to the special circumstances under which Ash has proceeded since 2010 or thereabouts, when Ash first became alive to Ash’s gender issues. The mother has nurtured Ash through epochs of deep analysis of an emotional nature, guiding Ash away from suicidal considerations, providing Ash’s ongoing participation at school during emotionally and behaviourally turbulent times, and supporting Ash during bleak moments in Ash’s psychological stability.
The mother loves Ash and always has done. The mother has provided a stable, loving and warm home environment for Ash, especially since 2018, when the father decamped permanently for Europe. In short, the mother has demonstrated enormous support and fortitude in preserving Ash’s mental and emotional fabric in exacting times. The mother has supported Ash’s proposed treatment. The mother is of the view that Ash is Gillick competent.
Dr G is also of the view that Ash is Gillick competent. Dr G conducted an assessment of Ash’s gender dysphoria based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, colloquially called DSM-5. So far as Ash’s capacity to consent was concerned, Dr G expressed the view that in Dr G’s opinion, Ash is Gillick competent in relation to decision-making for the commencement of treatment for gender dysphoria.
Dr H stated that she has no doubt that Ash is Gillick competent and capable of making an informed decision regarding the commencement of testosterone treatment. Dr H went further by reporting that Ash told Dr H that Ash believes the procedure is “a necessity for Ash”.
Three witnesses have opined that Ash is Gillick competent, two of whom are independent experts. Admittedly, each of Dr G and Dr H has devoted a significant period of time to treating Ash. However, that does not diminish the independent, objective nature of the evidence of Dr G and of Dr H nor does it diminish the gravamen of the evidence of each.
It became necessary to compare the evidence of the mother, of Dr G, and of Dr H, who said Ash is Gillick competent, with the evidence of the father, who globally opposed the mother’s application. The father provided an email dated 15 September 2021. In it, he recorded in considerable detail but through an entirely subjective prism aspects of Ash’s earlier years from birth, the father’s role in Ash’s early years, the mother’s work history, the parents’ divorce, lockdown in Europe, mortality rates in Europe, and risks associated with what the father called “fake vaccines”. He also addressed what he said were the existence of two genders and a kaleidoscope of sexual orientation. The father engaged in defamatory comments about Dr H. The father addressed how Dr Fauci, a US medical practitioner, lied to Congress and that the war on terror had come to an end. Nowhere in that narrative did the father provide a rational basis for his assertion, if it be the fact that his comments are to be so construed, that Ash is not in fact and in law Gillick competent.
In my judgment, the evidence overwhelmingly reveals that Ash is Gillick competent. I make the declaration to that effect. In making that declaration, I have carefully considered the observations of the High Court in a case anonymised as Marion’s Case.[31] There, the plurality held that a child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed. In my view, Ash is competent to consent to the administration of stage 2 for gender dysphoria.
[31] Dept of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218.
SOLE PARENTAL RESPONSIBILITY
The mother sought, the ICL supported, and the father said nothing about orders pursuant to which sole parental responsibility for Ash was to be conferred upon the mother. The father has been overseas since 2018. The emails referred to above reveal his intention to wholly distance himself from Ash. Section 61(1) of the Family Law Act provides in effect that each parent of the child who has not turned 18, as is the case with Ash, has parental responsibility for the child.
The court is empowered by section 65D(1) of the Family Law Act to make such parenting orders it thinks fit. The court may allocate parental responsibility for a child in favour of one parent or another. The mother has wholly participated in Ash’s life and continues to do so. The father has not. The father has chosen to seek a new life for himself in Europe. Naturally, that is a matter for him. However, Ash is not 18 years of age yet and is a minor. Certain matters still require the exercise of parental responsibility.
The father has elected to remove himself from Ash’s life. The mother continues to volunteer to provide parental responsibility for Ash. Should it be necessary for the mother to consult the father on long-term and important decisions in respect of Ash’s welfare such as educational issues or medical issues? In my view, the answer must be in the negative. Such is the enmity between Ash’s parents that cooperation in decision-making is well-nigh impossible. The father has described the mother as a thief. He has written about the mother in particularly vituperative terms. The mother did not speak in the same terms of the father. An order conferring sole responsibility on the mother should be made. I entertain neither hope nor expectation the father will behave other than with hostility towards Ash.
His correspondence with Ash in July 2021, written in response to a legitimate endeavour by Ash to communicate with the father, reflected the father’s peculiar views on an array of matters and was anything but child focused on Ash. The presumption of equal shared parental responsibility is rebutted for the purposes of section 61DA(4).
ASH AND GENDER DYSPHORIA
As the second issue the mother wished determined was the question whether Ash suffers from gender dysphoria. In written submissions prepared on behalf of the mother, her counsel relied on the observations of Watts J in Re Imogen (No. 6)[32] where his Honour explained gender dysphoria as a term describing the distress experienced by a person due to the incongruence between a person’s gender identity and that person’s gender assignment at birth.
[32] (2020) 61 Fam LR 344.
According to DSM-5 as explained in this case by Dr G, the characterisation of gender dysphoria is in two parts. Part A prescribes six manifestations of marked incongruence, two of which must be present for at least six months. Part B requires the incongruence to be associated with clinically significant distress or impairment of social, occupation, or other important areas of functioning. Both Dr H and Dr G concluded that Ash met diagnostic criteria for gender dysphoria.
The father has not put forward evidence of an opposing medical nature by which a conclusion could be reached other than a conclusion urged by Dr G and Dr H. In those circumstances, I find that Ash has and currently experiences distress due to incongruence between Ash’s gender identity and Ash’s gender assigned at birth and therefore met the DSM-5 criteria for gender dysphoria in adolescents and adults.
STAGE 2 TREATMENT FOR ASH
The third issue posed by the mother was whether it is in Ash’s best interests for Ash to receive stage 2 treatment. That issue addresses the order proposed in paragraph 2 of the mother’s initiating application sealed 7 September 2021. The mother propounded the order proposed in paragraph 2 of her initiating application, the ICL supported that application, and the father is to be taken to have opposed that relief. Having regard to the opposition of the medical treatment proposed by the mother and detailed by Dr G and Dr H, the operation of 67ZC of the Family Law Act is enlivened.
Relevantly, also enlivening a consideration of best interest principles, in Re Sam and Terry,[33] Murphy J held that the reference in section 67ZC to “jurisdiction” is not, despite its wording, “itself a source of jurisdiction.” I disagree. The wording in section 67ZC(1) uses the word “jurisdiction” twice. To deny the actual words used in the section is to construe the section in a manner antithetical to principles espoused in cases concerning the proper construction of statutory construction.[34] The express conferral of jurisdiction, that is to say authority to decide, renders erroneous the statement by Murphy J “if the power is to be validly exercised, jurisdiction must be found by attaching” section 67ZC to something else. The power in section 67ZC is expressly conferred. No need exists to attach the exercise of that power to something else. Be that as it may, section 67ZC(2) provides that in deciding to make an order under subsection (1) in relation not a child, a court must regard the best interests of the child as a paramount consideration. That incorporates section 60CA as well as section 60CB and section 60CC of the Family Law Act.
[33] (2013) 49 Fam LR 417.
[34] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Taylor v Public Service Board (N.S.W.) (1976) 137 CLR 208; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Commonwealth v Baume (1905) 2 CLR 405; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Yanner v Eaton (1999) 201 CLR 351; Commonwealth v Yarmirr (2001) 208 CLR 1; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; Northern Territory v Collins (2008) 235 CLR 619.
The most significant factor is Ash’s expressed wish to undertake the therapy, it having been explained to Ash in detail and Ash being competent to receive, absorb, and comprehend all that has been imparted to Ash. Ash’s mother is supportive of the procedure. The father is not supportive of the procedure. He is overseas and has been for over three years. The father has not embraced the proposed course of treatment about which Dr G and Dr H have been counselling Ash and in respect of which those two specialists have been guiding Ash. Each specialist has indicated the likely harm that will befall Ash unless Ash undergoes the proposed therapy.
Dr H was more strident in her opinion that she is certain that the procedure is necessary for Ash’s welfare and that the procedures are central for Ash’s long-term health and wellbeing. Ash is fully aware of the risks and benefits of the proposed treatment and Ash wishes to proceed. Ash is very near obtaining Ash’s majority. Ash is mature, academically strong, and well able to form and express Ash’s opinions. Ash wishes the stage 4 treatment to commence. Ash’s two specialists support the commencement of the treatment. Ash’s mother and medical doctors also support it. The father opposes it on grounds that are not medically sustained or logically supportable. In my view, having regard to the fact that Ash’s best interest is the paramount consideration, Ash’s best interests are promoted by granting the relief sought in paragraph 2 of the initiating application.
AN ORDER UNDER SECTION 121 OF THE FAMILY LAW ACT
The mother and the ICL propose an order under section 121 of the Family Law Act. The prohibition that section 121 enacts, subject to leave being granted under section 121(9), relates to the dissemination of information. In other words, section 121 already operates to prohibit the publication of the information covered by the proposed order 4. If the mother seeks an order otherwise, I will entertain such an application. Paragraph 6 seeks such an order. Leave is granted under section 121. I make the orders as sought by the mother in the initiating application.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 23 September 2021
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