Re Brodie (Special Medical Procedure) - [2008] FamCA 334

FAMILY COURT OF AUSTRALIA

Re Brodie (Special Medical Procedures)

[2008] FamCA 334

FAMILY LAW – CHILDREN – Special medical procedures

Family Law Act 1975

Applicant:

Mother

Respondent:

Father

By Court Order the file number is suppressed:

Date delivered:

15 May 2008

Place delivered:

Melbourne

Place heard:

Melbourne

Judgment of:

Carter J

Hearing date:

12, 13 & 14 December 2007

Representation

By Court order the names of counsel and solicitors have been

suppressed

Orders

That until further order the child of the relationship born in 1995 (“the child”) be known as, addressed as, and accommodated by the name Brodie (“the new name”) and it is requested that all relevant Government Departments and/or Agencies give effect to this order.
That until further order the child live with the mother.
That until further order the mother have sole parental responsibility for the child.
That the father be at liberty to apply on reasonable notice to discharge and/or vary par (2) and/or (3) hereof.
That without in any way limiting par (1) and/or (3) hereof the mother is hereby authorised:
(a)to change the child’s name to the new name referred to in par (1) hereof, the Court being satisfied that the change of name is in the child’s best interests and it is requested that the Registrar of Births Deaths and Marriages in Victoria gives force and effect to this order upon request by the mother;
(b)to apply for a passport of the child in the new name referred to in par (1) hereof and without first obtaining the consent of the child’s father;
(c)to apply for and/or request the issue of a Medicare Card for the child in the new name referred to in par (1) hereof;
(d)to apply to any authority for identification of the child in the new name referred to in par (1) hereof;
(e)to apply for and/or request a driver’s learner’s permit for the child in the new name referred to in par (1) hereof.
That until further order the mother be authorised to consent to the following Special Medical Procedure on behalf of the child, namely, the administration of a gonadotrophin releasing hormone analogue (“the treatment”) on a continuous basis subject to the medical opinion of the child’s treating specialists from time to time.
That until further order the child undergo regular psychotherapeutic counselling with Associate Professor P or such other psychiatrist experienced in gender identity disorder cases as he might nominate from time to time with the view (inter alia) to the child exploring any issues arising from the treatment and to improving the child’s general well being.
That pursuant to s 65L(1)(a) and (b) of The Family Law Act1975 the parenting orders be supervised by a Family Consultant nominated by the Director of Court Counselling of this Registry of the Court for a period of three years and it is requested that Ms T, Family Consultant, be appointed pursuant to this order.
That the Family Consultant referred to in par (8) hereof:
(a)be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Brodie (Special Medical Procedure)

Details

AGLC: Re Brodie (Special Medical Procedure) [2008] FamCA 334
Case: [2008] FamCA 334
Decision Date: 15 May 2008

CaseChat Overview and Summary

This case concerned an application before Carter J in the Family Court of Australia regarding a child born in 1995. The dispute involved the child's name change, living arrangements, parental responsibility, and crucially, authorisation for a special medical procedure. The father was a party to the proceedings, and an Independent Children's Lawyer was appointed to represent the child's interests.

The court was required to determine several key legal issues. These included whether changing the child's name to "Brodie" was in the child's best interests, and whether the mother should have sole parental responsibility and the child live with her. Most significantly, the court had to consider whether to authorise the administration of a gonadotrophin releasing hormone analogue to suppress the child's pubertal development, and whether the mother should have the sole authority to consent to this medical procedure. The court also had to consider the ongoing supervision of parenting orders and the role of the Independent Children's Lawyer.

Carter J's reasoning focused on the best interests of the child, a paramount consideration in family law. The court accepted evidence from medical and psychiatric experts, including Professor W and Associate Professor P, as well as the Independent Children's Lawyer and the child's mother. This evidence indicated that the proposed medical treatment, a reversible suppression of female puberty using a gonadotrophin releasing hormone analogue, was in the child's best interests. The court reasoned that this treatment would provide "breathing time" for further psychological assessment and allow for a more detailed diagnostic process in a less pressured environment. The court also ordered that the child undergo psychotherapeutic counselling and that parenting orders be supervised by a Family Consultant for three years.

The court made extensive orders reflecting its findings. These included authorising the change of the child's name to Brodie, granting the mother sole parental responsibility and sole care of the child, and authorising the mother to consent to the special medical procedure. The court also ordered the child to undergo counselling and established a framework for supervision of the parenting orders by a Family Consultant. The Independent Children's Lawyer was to continue to be funded to provide a continuing contact point for the child.

Orders

Orders of the court

That until further order the child of the relationship born in 1995 (“the child”) be known as, addressed as, and accommodated by the name Brodie (“the new name”) and it is requested that all relevant Government Departments and/or Agencies give effect to this order.

That until further order the child live with the mother.

That until further order the mother have sole parental responsibility for the child.

That the father be at liberty to apply on reasonable notice to discharge and/or vary par (2) and/or (3) hereof.

That without in any way limiting par (1) and/or (3) hereof the mother is hereby authorised:

(a) to change the child’s name to the new name referred to in par (1) hereof, the Court being satisfied that the change of name is in the child’s best interests and it is requested that the Registrar of Births Deaths and Marriages in Victoria gives force and effect to this order upon request by the mother;

(b) to apply for a passport of the child in the new name referred to in par (1) hereof and without first obtaining the consent of the child’s father;

(c) to apply for and/or request the issue of a Medicare Card for the child in the new name referred to in par (1) hereof;

(d) to apply to any authority for identification of the child in the new name referred to in par (1) hereof;

(e) to apply for and/or request a driver’s learner’s permit for the child in the new name referred to in par (1) hereof.

That until further order the mother be authorised to consent to the following Special Medical Procedure on behalf of the child, namely, the administration of a gonadotrophin releasing hormone analogue (“the treatment”) on a continuous basis subject to the medical opinion of the child’s treating specialists from time to time.

That until further order the child undergo regular psychotherapeutic counselling with Associate Professor P or such other psychiatrist experienced in gender identity disorder cases as he might nominate from time to time with the view (inter alia) to the child exploring any issues arising from the treatment and to improving the child’s general well being.

That pursuant to s 65L(1)(a) and (b) of The Family Law Act 1975 the parenting orders be supervised by a Family Consultant nominated by the Director of Court Counselling of this Registry of the Court for a period of three years and it is requested that Ms T, Family Consultant, be appointed pursuant to this order.

That the Family Consultant referred to in par (8) hereof:

(a) be authorised on his or her own initiative and as may be considered necessary to provide to the Court a Report pursuant to s 62G on such matters relevant to these proceedings;

(b) if so directed by the Court at any time during the period of supervision to provide to the Court pursuant to s 62G on such matters relevant to the proceedings as the Court thinks desirable; and

10.

That the Independent Children’s Lawyer be duly authorised to communicate with, attend and generally facilitate the issue of the identifying material referred to in par (11) hereof and to explain these orders to appropriate persons.

11.

That the applicant and the Independent Children’s Lawyer have leave to provide a copy of this order to all persons and/or organisations relevant to the advancement of the child’s interests.

12.

That the appointment of the Independent Children’s Lawyer not be discharged and it is requested that Victoria Legal Aid continue to fund the Independent Children’s Lawyer on the basis that this will not involve an active on-going role but rather provide a continuing contact point for the child as the course of treatment progresses and in case there is a need to seek any further order from the Court.

13.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

14.

That the Court provide a sealed copy of this order to the father as soon as practicable by forwarding the same to him by ordinary registered post at his Notice of Address for Service, with a further copy to be sent to him by email at … .

15.

That for all publication and reporting purposes the file number of this case and the names and other identifying features of counsel and/or solicitors involved in this case be suppressed.

16.

That save as aforesaid all applications be otherwise dismissed and the matter be removed from the list of cases awaiting determination.

17.

That there be general liberty to apply.

IT IS DIRECTED

18.

That Exhibit “I C L 1” remain on the Court file until further order.

IT IS CERTIFIED

19.

That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel, including Senior Counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the excellent Statement of Argument provided by the I C L and settled by her counsel, the evidence under each part of r 4.09 has been summarised and set out. I can do no better than to incorporate it in these Reasons. In some respects I have myself already touched on the considerations in the discussion which precedes this section. In some aspects the evidence as it emerged at the hearing requires to be further detailed and I have done so where necessary. Otherwise, I accept and adopt the I C L’s submissions which are reproduced in an italicised format below, save that the child’s name has been anonymised.“[4.09(1)] If a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.It is submitted that evidence from medical expert Professor [W], psychiatric expert Associate Professor [P], Family Consultant [Ms T] and evidence from the child’s mother, […], when taken together suggest overwhelmingly that the proposed medical procedure is in the best interests of the child [Brodie] born [in] 1995.Taking into account all relevant considerations expanded upon below, the Independent Children’s Lawyer considers that the present and future psychological benefit to the child in being permitted to begin the treatment sought outweighs the psychological risks to her in not receiving the treatment and is therefore in her best interests.[4.09(2)] The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:(a) the exact nature and purpose of the proposed medical procedure;The proposed medical procedure is for the child [Brodie] born [in] 1995 to receive pharmacological treatment, that treatment consisting of Zoladex, a gonadotrophin releasing hormone analogue, by implanting a 10.8 mg pellet under the skin, using local anaesthetic. This will be repeated every 3 months. The purpose of the treatment is to suppress pituitary gonadotrophin secretion, which will in turn suppress ovarian function and oestrogen secretion for the duration of the course of treatment. This will have the effect of suppressing [Brodie’s] pubertal development as a female.(Report of Professor [W] attached to affidavit affirmed 21 August 2007 and filed 22 August 2007 2007 at p 1.) As earlier discussed this is the first stage of an overall treatment plan. Professor W had explained in his Report that Brodie was much more fortunate than older children with gender dysphoria in that it was still the situation that puberty could be blocked before it had gone very far. He went on to say that whilst the application was only at this stage for the introduction of a gonadotrophin-releasing hormone analogue which was fully reversible, a further application would be made for permission to commence treatment with testosterone, the male sex hormone. That stage did not form part of the current application because the medical experts did not regard ‘diagnosis as having been completed’ and because testosterone would cause permanent physical changes such as deepening of the voice, growth of the clitoris and the development of a muscular build. Professor W had also said in his Report that the suppression of puberty allowed ‘breathing time’ during which a much more detailed psychological profile could be compiled in a more relaxed atmosphere, and accordingly, the treatment was an important contributor to the diagnostic process.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.