Re: Brittany

[2017] FamCA 527

FAMILY COURT OF AUSTRALIA

RE: BRITTANY [2017] FamCA 527

CHILDREN – MEDICAL PROCEDURE – Gender Dysphoria – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – Where the applicants seek a finding that the child is Gillick competent to consent to stage two treatment for Gender Dysphoria – Where the child’s treating medical experts and parents support the child commencing stage two treatment – Finding that the child is Gillick competent to consent to stage two treatment – Where the Court is otherwise satisfied that stage two treatment is in the child’s best interests.

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

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: 11 July 2017

JUDGMENT OF: Tree J

HEARING DATE: 21 April 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

THE COURT FINDS AND IT IS DECLARED THAT:

1. BRITTANY born … 2000 (“Brittany”) 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 Brittany, her family members, hospital, medical practitioners, school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Brittany’s mother and father and any other fact or matter which may identify Brittany shall not be published in any way.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 Brittany be at liberty to identify herself as the subject of this application and as the child the subject of the reasons for decision for these orders if she 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 Brittany have leave to publish to Brittany’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 Brittany herself, 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: Brittany 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 & The Father

Applicants

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 21 April 2017 I found and declared that Brittany (born … 2000, and hence presently 17 years of age) was competent to consent to undergoing irreversible stage 2 treatment for Gender Dysphoria.  These are my reasons for so ordering.

THE MATERIAL RELIED UPON

1. The application was brought jointly by Brittany’s parents.  In addition to affidavits sworn by each of them, and filed 19 April 2017, they also rely upon the following material:

   ·An affidavit of a paediatrician, Dr D, filed 19 April 2017;

   ·An affidavit of a consultant psychiatrist, Dr L, filed 19 April 2017;

   ·An affidavit of a senior clinician working in social work and family therapy at the Z Hospital, Ms P, filed 19 April 2017.

BACKGROUND FACTS

1. Although born male, both Brittany’s parents recall that from an early age she would engage in activities more frequently associated with girls, and would frequently wear her sister’s clothing.  From grade 1 she had some difficulties with schooling and expressed some emotional discomfort, although she progressed well.  However in year 8 her parents noted a marked difference in her attitude towards school where she lost interest in her studies.  She began to request whether she could wear girls’ clothing to school and grew her hair long.  She was frequently greeted as a female in public by people who did not know her.  She began to exclusively wear female clothing at home. 

2. In early 2015 Brittany began to seek counselling in relation to her gender identity and at about that time, when she was in year 9, changed the name which her family used for her to Brittany.  That change was also made in relation to her schooling, and she thereafter wholly transitioned to being a social female with friends and family members.

3. Throughout all of this her parents were immensely supportive of her, and became involved with other parents of other transgender children in lobbying for legislative change and providing emotional support.

4. In December 2015 Brittany commenced receiving stage 1 treatment, being the hormone blockers to prevent masculisation of her body.

5. As at the time of the hearing before me Brittany was in grade 12, intending to complete her schooling, and then going to university to pursue a career in either psychology or music.

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 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 & 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 BRITTANY GILLICK COMPETENT

1. The evidence amply supports findings that Brittany:

   ·Is “a bright young woman of above average intelligence”: Dr L’s affidavit paragraph 8(b);

   ·Has, from well prior to puberty, demonstrated symptoms consistent with Gender Dysphoria;

   ·Has extensively researched Gender Dysphoria and has actively engaged in discussing therapy with her doctors;

   ·Is well aware of the effects which Oestrogen will have upon her body, including the effect on her fertility;

   ·Believes that developing as a pubescent female is the best way forward for her;

   ·Has for some years consistently expressed a desire to develop as female rather than male;

   ·Is well aware of the potential adverse risks which ingestion of Oestrogen over a lengthy time may have upon her.

2. Further, both Dr D and Dr L are of the view that Brittany is Gillick competent, in that she well understands the nature of the proposed treatment and understands fully what is proposed, and is able to make an informed decision as to the proposed treatment.  Ms P did not express a view in relation to this matter.

3. I am therefore satisfied that Brittany is Gillick competent.

4. To cover the eventuality that I am wrong as to that, I should also note that both of Brittany’s parents, Dr D and Dr L are of the view that the proposed treatment is in Brittany’s best interests: Dr D went so far as to say that it is “necessary for Brittany’s welfare” and it will “help to improve her mental state and maximise her emotional, social and educational potential…”  Dr L was of the view that transitioning to a female identity “will minimise the distress and the risk of [Brittany] developing anxiety and depressive symptoms” and that if she were to develop physically as a pubescent male, this is “likely to cause significant issues” for her.

5. I accept that evidence and am satisfied that it is in Brittany’s best interests to undergo stage 2 treatment at this present time.

CONCLUSION

1. For these reasons I made the orders which I pronounced on 21 April 2017.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 July 2017.

Associate:

Date:  11 July 2017