Re: Benjamin

[2017] FamCA 528

FAMILY COURT OF AUSTRALIA

RE: BENJAMIN [2017] FamCA 528

CHILDREN – MEDICAL PROCEDURE – Gender Dysphoria – Applicant parents seek an order that child is competent to consent to Stage 2 treatment for Gender Dysphoria – Whether child is Gillick competent – Where parents and child’s treating medical practitioners are of the view that child is Gillick competent – Finding that child is Gillick competent to consent to Stage 2 treatment – Finding that it is otherwise in the child’s best interests to undergo Stage 2 treatment - Where orders relating to confidentiality are made

Family Law Act 1975 (Cth) s 121(9)

Re Jamie (2013) 278 FLR 155
Re Jamie (2013) 278 FLR 155
Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112
Secretary, Department of Health & Community Services v JWB &SMB (“Marion’s Case”) (1991-1992) 175 CLR 218

FIRST APPLICANT:	The Mother
SECOND APPLICANT:	The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 12 July 2017

JUDGMENT OF: Tree J

HEARING DATE: 16 May 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

THE COURT FINDS AND IT IS DECLARED THAT:

1. The child BENJAMIN  born … 2000 (“Benjamin”) is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

1. The full name of Benjamin, his family members, hospital, medical practitioners, school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Benjamin’s mother and father and any other fact or matter which may identify Benjamin shall not be published in any way.

2. Only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer 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.

3. That Benjamin be at liberty to identify himself as the subject of this application and as the child the subject of the reasons for decision for these orders if he may choose.

4. To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Benjamin have leave to publish to Benjamin’s treating health practitioners a copy of these orders which are not anonymised.

5. Further to Orders 4 and 5 above, each of the parties to these proceedings, and Benjamin himself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.

6. No person be permitted to search the court file in this matter without first obtaining leave of a judge.

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: Benjamin 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

FILE NUMBER: By Court Order File Number is suppressed

The Mother and The Father

Applicants

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 11 May 2017, the mother and the father seek, amongst other orders, a finding that Benjamin (born … 2000 and hence presently 16 years of age) is competent to consent to the administration of testosterone by way of “Stage 2” treatment for his diagnosed Gender Dysphoria.

2. On 16 May 2017 I made an order in those terms, together with some ancillary relief, but reserved my reasons.  These are those reasons.

MATERIAL RELIED UPON

1. The mother and the father rely upon the following material:

   ·An affidavit of each of themselves;

   ·An affidavit of Dr B, a child and adolescent psychiatrist who has seen Benjamin on three occasions;

   ·An affidavit of Dr G, the child’s paediatrician.

BACKGROUND FACTS

1. The mother and father have three children, of which Benjamin is the eldest.  The mother describes Benjamin as having always been a “Tomboy,” growing up with mostly male friends, and choosing to wear boyish clothing from an early age.  However with the onset of puberty she recalls him struggling with anxiety and depression and beginning to engage in self harm, cutting himself on almost a daily basis.  At the time the family was unable to understand the cause of the problem.  However when he started high school, Benjamin disclosed to the mother that he identified as male rather than female.  However he suffered extensive bullying from his peers, which led to him being withdrawn from mainstream schooling at the conclusion of year 8.  He was then home schooled for year 9 but has since returned to public schooling.

2. About two years ago Benjamin publicly changed his gender, changing his name to Benjamin and starting to wear male clothing in public.  The mother reports that all of his family and friends now refer to him as Benjamin.

3. In March 2016 he became a patient of the T Hospital, and commenced to consult with Dr B and Dr G.

RELEVANT LEGAL PRINCIPLES

1. Relevant to this application are the following uncontroversial (in the sense that I am plainly bound by them) propositions of law derived from the Full Court decision of Re Jamie (2013) 278 FLR 155 at [140] per Bryant CJ:

   ·In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent;

   ·If the child is Gillick competent, then the child can consent to the treatment;

   ·The question of whether a child is Gillick competent, even where the treating doctors and their parents agree, is a matter to be determined by the court.

2. It also uncontroversial that Gillick competence is established if the child in question “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”: see Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112 at 183-184 and Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218 at 237.

IS BENJAMIN GILLICK COMPETENT

1. The material satisfies me that Benjamin:

   ·Is of average intelligence (Dr B at [7]);

   ·Has from an early age identified as male rather than female (mother’s affidavit at [11]-[12]);

   ·Has had extensive discussions with his mother and the two treating specialists in relation to the proposed treatment (mother’s affidavit at [24], Dr B at [7] and Dr G at (g));

   ·Has an understanding of the reversible and irreversible effects of the proposed treatment: ibid;

   ·Is aware that the administration of testosterone is likely to irreversibly effect his fertility (mother’s affidavit at [26], Dr G at (g));

   ·Has experienced living as male in the community now for some years (mother’s affidavit at [11]);

   ·Is aware of the potential adverse risks which the administration of testosterone over a lengthy time may have upon him.  

2. Both of Benjamin’s parents and both of the medical practitioners whose affidavits were before me are of the view that Benjamin is Gillick competent.  Dr G specifically addressed the prospect of a risk of regret, and she reported:

   We have had numerous discussions about the treatment and the risks and benefits that are known.  This includes the risk of regret and impact on fertility…

   .. As part of the above discussion, time was also spend outlining Benjamin’s future fertility options, given the possibility that testosterone may impair Benjamin’s ability to conceive children.  At this stage Benjamin did not envisage wanting to bear children himself, and did not wish to see a member of our gynaecology team for further fertility counselling in the future.    

3. At paragraph 24 of her affidavit the mother said:

   Benjamin and I have had lengthy discussions about the potential impact that the treatment may have on his ability to have children in the future.  Benjamin understands the potential for loss of fertility that the treatment may bring and understands the gravity of the treatment.  He has had discussions with his treating practitioner Dr G regarding the possibility that testosterone may impair his ability to conceive children in the future.  He understands that undergoing the treatment may mean that he is not able to bear children in the future.  He is content with his decision and prepared to accept that risk.  He cannot envisage a situation whereby he would ever want to have a child, or physically carry a child.

4. At paragraph 26 she continued:

   .. We also understand the risks that are involved, including an unknown risk regarding the development of ovarian cancer as well as the possibility that Benjamin will be unable to have children in the future.  There is some risk that Benjamin may regret his choice to have treatment, if it is permitted, in the future, however [the father] and I, together with Benjamin’s treating medical practitioners, feel strongly that Benjamin has Gender Dysphoria and identifies as male and that any regret in having the treatment would be minimal, if any.

5. I am satisfied that Benjamin is Gillick competent, and hence may consent to the proposed treatment.

6. If I am wrong as to that, then it is appropriate that I consider whether or not the treatment is nonetheless in the child’s best interests.  As to this the material speaks strongly that it is.  Dr B opined that “the treatment will benefit Benjamin by improving his psychological wellbeing, boosting his self-esteem and body image and also likely to have a positive impact on his mental health… Ultimately I believe that the treatment will ensure optimal emotional, social and psychological development.”

7. Dr G said:

   I consider that the treatment described above is necessary for Benjamin’s welfare, and in his best interest.  Benjamin has been consistent in requesting this treatment.  It is my opinion that the treatment will help to improve his mental state and maximise his emotional, social and educational potential by giving him the ability to live within a body that is more consistent with his gender identity.

8. To like effect was the mother’s evidence.  She said that the proposed treatment and the physical changes which it will give rise to “will better enable him to present as male and will therefore be of enormous benefit to his mental health and social wellbeing.”  Later she continued “Benjamin will be able to function more fully as a male and it would likely enable him to be more positive about his life and his future and truly be himself.”  On the other hand she opined that “it is clear to me and our family, as well as to Benjamin’s treating medical practitioners, that if Benjamin is unable to commence the proposed testosterone treatment, his emotional state will deteriorate and he will continue to suffer.”

9. I accept that evidence and I am satisfied that it is in Benjamin’s best interests to undergo Stage 2 treatment at this time.

CONCLUSION

1. For these reasons I made the orders which I pronounced on 16 May 2017.   

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 July 2017.

Associate:

Date: 12 July 2017