Re: Bobbie
[2017] FamCA 974
•29 November 2017
FAMILY COURT OF AUSTRALIA
| RE: BOBBIE | [2017] FamCA 974 |
| FAMILY LAW – CHILDREN – Medical Procedures – Gender Dysphoria – Applicant parents seek order that child is competent to consent to stage 2 and stage 3 treatment for Gender Dysphoria – Applicants seek alternative order that they be authorised to consent to the administration of stage 2 and stage 3 treatment for the child – Whether child is Gillick competent – Where there is deficient evidence to conclude child is Gillick competent – Where applicants pressed for them being authorised to consent to treatment for the child –Where parents and child’s treating medical practitioners are unanimously of the view that treatment and procedure are in the child’s best interests – Where it is in the child’s best interests to undergo stage 2 and stage 3 treatment. |
| Family Law Act 1975 (Cth) s 121(9) |
| Re: Jamie (2013) FLC 93-547 Gillick v West Norfolk AHA [1968] AC 112 Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218 Re: Darryl [2016] FamCA 720 Re: Lincoln (No 2) (2016) FamCA 1071 |
| FIRST APPLICANT: | The Mother |
| SECOND APPLICANT: | The Father |
| FILE NUMBER: |
By Court Order File number is suppressed
| DATE DELIVERED: | 29 November 2017 |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 September 2017 |
REPRESENTATION
By Court Order the name of solicitors have been suppressed
Orders
The applicant parents are authorised to consent to stage two treatment for Bobbie born … 2001 for the condition called Gender Dysphoria in Adolescents and Adults, comprising the administration of testosterone in such manner and with such frequency as may be determined by his treating medical practitioners from time to time, and stage three treatment for that condition, being the surgical removal of his breasts.
(a) The full name of Bobbie, his family members, his hospital, his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, and any other fact or matter which may identify Bobbie, shall not be published in any way; and
(b)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.
To the extent that the exception in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the applicant parents and Bobbie have leave to publish to Bobbie’s treating practitioners a copy of these orders which are not anonymised pursuant to order 2 hereof.
No person be permitted to search the Court file in this matter without first obtaining leave of a Judge.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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: Bobbie 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 and The Father |
Applicants
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 11 September 2017, the Mother and the Father sought orders permitting their child, Bobbie (born in 2001, and hence presently 16 years of age) (“the child”) to undergo stage 2 and stage 3 treatment for his gender dysphoria. Although the Initiating Application primarily sought an allocation of sole parental responsibility for all medical decisions be awarded to the child, or alternatively that he be declared Gillick competent, in the course of argument, ultimately it was a further alternative order, namely that the applicant parents be authorised to consent to the administration of stage 2 and stage 3 treatment, that was pressed. On 19 September 2017 I made that order for reasons to be subsequently published. These are those reasons.
BACKGROUND FACTS
Both of the parents were born in 1971 and hence are aged 45 years. They married in 1998 and to that marriage one child, Bobbie, was born. Although subsequently they divorced, both agree that they have maintained an amicable relationship and both are supportive of the application.
The mother recalls that Bobbie had always been a “tomboy” and never had any real interest in things that girls typically have an interest in. In primary school he went through puberty at a very early age and was prescribed puberty blockers to supress it. He struggled with anxiety and depression and became withdrawn. He was ultimately diagnosed with autism.
The mother recalls that the child had particular difficulty when he first started having periods, and when his breasts started to develop. She said “he has always found having breasts incredibly distressing and confronting and indicates to me that he “hates them.”
The child told Dr D, the psychiatrist to whom he was later referred, that he hated his first period, and hated his breasts ever since they first developed.
In 2016 the child disclosed to the mother that he was transgender and identified strongly as male. Although shocked by that disclosure, it did bring to the mother’s mind several vague discussions that she had with the child in the past.
After disclosing that he identified as transgender to his mother, the child has progressively moved to presenting and living as male. The mother reports that he has been “accepted wholeheartedly by the school and has encountered no issues at all from either the staff or classmates to his gender identity.”
Dr D formally diagnosed the child as suffering from gender dysphoria in January 2017. The mother records “his diagnosis was of relief to our family as we begun to understand the cause of his anxiety and depression and looked towards treatment as a means of resolving his mental health issues.”
At [19] of the mother’s affidavit, she continued:
Since his diagnosis I have observed a remarkable improvement in Bobbie’s moods and demeanour. He is considerably happy and now that he presents as male, and can feel comfortable with who he is..
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Relevant to this application are the following uncontroversial propositions of law derived from the Full Court decision of Re: Jamie (2013) FLC 93-547 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.
It is 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 AHA [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.
However the law is less clear as to what the court’s role is where there is a dispute in relation to whether or not the child is Gillick competent. The leading authority is again Re: Jamie. In that case the court espoused two, and perhaps three conflicting answers. The first is contained in the judgment of Bryant CJ, and is to the effect that “if there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration…” : at [140](f).
The second approach was espoused by Finn J in the following terms at [188]:
If the court was completely satisfied of the child’s capacity to consent to state two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.
Plainly these approaches are not consistent: the approach of Bryant CJ is to require a best interests determination if there is a dispute on the evidence; the Finn J approach does not require a best interests consideration in such circumstances unless the court is in any doubt about the Gillick capacity, or arguably, even absent a conflict of evidence, otherwise has doubt about that capacity.
The approach of the third judge in Re: Jamie, Strickland J, does not assist in resolving that conflict. Although at [192] his Honour agreed “with the outcomes proposed by both of my colleagues and generally for the reasons set out by each of them,” he did not advert to the conflict between them identified above. Moreover, at [195] his Honour may have propounded a third test, because there he indicated that court authorisation would not be required “where the child is able to give consent to the proposed treatment.”
Subsequent cases do not seem to have provided any further clarification in relation to this point.
In Re: Darryl [2016] FamCA 720 at [3] – [9] I recited the above, but concluded that, on the particular facts of that case, I was absolved from needing to attempt to try and establish more definitively the circumstances in which a court may be obliged to determine whether the procedure should be authorised, as distinct from permitting the child to consent.
THE MATERIAL
The applicants rely upon the following material:
·An affidavit of each of themselves;
·An affidavit of Dr D, the child’s treating psychiatrist;
·An affidavit of Professor P, a specialist endocrinologist who has been engaged with the child;
·An affidavit of Dr T, a plastic surgeon with whom the child has engaged in with the prospect of breast removal.
GILLICK COMPETENCE
As I discussed with counsel for the applicants in the course of the hearing before me, the material relied upon by the applicants, whilst referring to a large number of conversations between the several specialists and the child, seemed somewhat deficient in relation to his actual capacity to comprehend and make the decision in question. Particularly, I directed counsel to the discussion as to the sort of issues that inform Gillick competence in the judgment of Johnston J in Re: Lincoln (No 2) (2016) FamCA 1071, which (adapting the recital of the evidence of the relevant psychiatrist) contains a very useful checklist as follows:
·An ability to comprehend and retain both existing and new information regarding the proposed treatments;
·An ability to provide a full explanation, in terms appropriate to the child’s level of maturity and education, of the nature of the treatment;
·An ability to describe the advantages of the treatment;
·An ability to describe the disadvantages of the treatment;
·An ability to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when the treatment should proceed;
·An acknowledgment that the treatment will not necessarily address all of the psychological and social difficulties experiences before its commencement;
·Being free, to the greatest extent possible, from temporary factors such as pressure of pain that could impair judgment in providing consent to the treatment.
It seems to me that list usefully emphasises the difference between the child being informed, on the one hand, with being able to process that information into informed consent, on the other.
For instance, in this case Dr D reported that “we have discussed the pros and cons, effects and side effects (reversible and irreversible) of testosterone.” Although she went on to say “[the child] expressed that he understood what he wanted,” that seems to me to fall short of demonstrating an ability to weigh advantages and disadvantages in the balance to arrive to an informed decision. I do not overlook the fact that Dr D specifically said that she felt that Bobbie was so capable of making an informed decision, but the basis for her so concluding was somewhat opaque.
Against that sort of concern, I raised with the parties whether they wished to seek to augment the material before me with further material from which I might conclude Gillick competence, or whether they wished to press for one of the species of alternative relief they sought in their application. As I have earlier indicated, they chose the latter. No doubt that was informed by the medical advice, and the child’s wishes, that stage 2 treatment should commence as soon as possible.
BEST INTERESTS OF CHILD
Dr D reported that the child identified as male, and had done so for some years. She concluded that if the treatment and procedure were carried out, it would enable him to achieve the perceived physical appearance and acceptance as male as he wants. She reported that Bobbie told her that if he were not able to transition, he would be “absolutely miserable… wouldn’t be happy with myself… wouldn’t cope..” From this she concluded:
Bobbie’s health and emotional wellbeing is almost certain to deteriorate without testosterone. His mental and physical health is dependent on his perception of himself as male.
There is no contrary evidence from which I can conclude otherwise than in accordance with her opinion.
As to the physical risks involved in the proposed treatments, these were discussed in both the affidavits of Professor P and Dr T. These included the irreversible masculinising features such as growing facial hair, an increased risk of breast and uterine cancer, and the prospect of various blood conditions.
Particularly the risks associated with the stage 3 breast removal were dealt with at length in Dr T’s report. She indicated that there was no alternative method or treatment to remove breasts, and a breast reduction would not remove the underlying cause of the child’s distress. Based on that she concluded that she believed that “the procedure is necessary for the mental and physical wellbeing of any individual diagnosed with gender dysphoria.”
Dr D concluded that “it is in the best interests of Bobbie to have phase 2 treatment for gender dysphoria and a double mastectomy. This is evidenced by Bobbie’s ongoing distress from gender dysphoria, the likely negative long-term impacts of non-treatment, the non-existence of alternative treatment he feels will be sufficient, the necessity of phase 2 treatment and double mastectomy for his long-term health and wellbeing, and Bobbie’s agreement to .. phase 2 treatment and double mastectomy.”
At paragraph 25 of the mother’s affidavit, she said:
It is anticipated that Bobbie’s anxiety and depression should improve with testosterone treatment given that his gender dysphoria contributes to his low mood and social difficulties. If Bobbie is able to undergo the proposed treatment, he will be able to function more fully as a male, but with significantly less physical and psychological stress. Bobbie will be able to function more fully as a male, and it would enable him to be more positive about his life and his future, and truly be himself.
Having discussed her conversations with the child in relation to the inability to conceive children in the future which stage 2 treatment would likely effect, she reported that the child “cannot envisage a situation whereby he would ever want to have a child, or physically carry a child.”
The mother’s affidavit then continued at [27]:
It is clear to me and our family, as well as to Bobbie’s treating medical practitioners, that if Bobbie is unable to commence the proposed testosterone treatment his emotional state will deteriorate and he will continue to suffer.
Turning specifically to the proposed double mastectomy, the mother reported at [28]:
Bobbie is considerably distressed by his breasts and is particularly anxious and genuine in his desire to have them removed. Undergoing stage 2 treatment without surgery will, for Bobbie, will be an incomplete therapeutic response that will continue to leave him with anxiety and distress. Bobbie has informed himself completely as to the risks of the proposed surgery including the risk of regret. I know that he understands the risks but believes that the advantages will significantly outweigh any risks in terms of his future mental health.
She returned to the specific issue of a risk of regret in the following paragraph, where she said:
There is some risk that Bobbie may regret his choice to have the treatment, if it is permitted, in the future, however [the father] and I, together with Bobbie’s treating medical practitioners, feel strongly that Bobbie has gender dysphoria and has identified as male and that any regret in having the treatment would be minimal, if any.
The father indicated his agreement with the evidence of the mother and said “I am entirely supportive of the treatment that is proposed to be given to Bobbie, and fully support his decision to undergo state 2 and stage 3 treatment.”
As is usually the case in such applications, there is no material which suggests other than the proposed treatment is in the child’s best interests. All of the three doctors unanimously are of the view that the treatment and procedure are best for the child, and his parents strongly express the same view. Whilst plainly there are others in the community who have strongly held contrary views about the wisdom of children undergoing such procedures – especially stage 3 surgery – the court acts upon, and should only act upon, the evidence before it. It would be quite wrong for a judge to wholly disregard the evidence, and determine such applications on a personal view. As I have said, the evidence in this case is unanimous that the treatment and procedure are in the child’s best interests, and I am so satisfied. As to the form of order which should flow, I am satisfied that it is appropriate to authorise the parents to consent to such treatments.
CONCLUSION
For these reasons I made the orders which I did on 19 September 2017.
I certify that the preceding thirty-five paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 November 2017.
Associate:
Date: 29 November 2017
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