Re: Cameron

[2015] FamCA 1113

FAMILY COURT OF AUSTRALIA

RE: CAMERON [2015] FamCA 1113

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a 17 year old child diagnosed with gender dysphoria – Where the child was born female and identifies as being male – Where the experts agree the child is not Gillick competent – Where an order is sought authorising the applicants to consent to the child undergoing Stage 2 treatment – Where Stage 2 treatment carries significant risks and has irreversible effects – Where it is undisputed by the parents and medical experts that it is in the best interests of the child to undergo Stage 2 treatment – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gillick v West Norfolk A.H.A [1986] AC 112
Re: Jamie (2013) FLC 93-547

Secretary, Department of Health and Community Services v JWB and SMB(“Marion’s Case”) (1992) 175 CLR 218

APPLICANTS: The Father and the Mother

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 9 December 2015

JUDGMENT OF: Kent J

HEARING DATE: 9 December 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

it is ordered that:

1. Leave is given for the Court to be closed today for the hearing and determination of these proceedings.

2. Pursuant to Section 100B(1) of the Family Law Act 1975 (Cth), leave is given for the affidavit of the child, Cameron, born on … 1998 (“the child”), to be filed and read today.

3. Pursuant to Section 100B(2) of the Family Law Act 1975 (Cth), leave is given for the child to be present in Court today for the hearing and determination of these proceedings.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Section 67ZC of the Family Law Act 1975 (Cth), the Court authorises the Applicants, the Father or the Mother, to consent to treatment on behalf of the child under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Professor B and his psychiatrist Dr S, for the administration of Intramuscular Primoteston (testosterone enanthate) in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.

2. The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, 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 lawyers’ 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 handed one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

3. No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Cameron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order file number is dismissed

The Father and the Mother

Applicants

EX TEMPORE REASONS FOR JUDGMENT

1. Cameron, the child the subject of this application brought jointly by his parents, was born in 1998 and is thus now 17 years of age.  Whilst the parents are now separated, they were married between 1989 and 2004 and Cameron is thus a child of their marriage within the meaning of the Family Law Act 1975 (Cth) (“the Act”).

2. Parental responsibility is defined in s 61B of the Act to mean, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. Usually parents, in the exercise of their parental responsibility, can authorise and consent to medical treatment for their child. However, some types of medical treatment or medical procedures are characterised by the law as falling outside the scope of parental responsibility and thus, require authorisation by this Court pursuant to s 67ZC of the Act.[1]

   [1] Secretary, Department of Health and Community Services v JWB and SMB(“Marion’s Case”) (1992) 175 CLR 218; Re: Jamie (2013) FLC 93-547.

3. That section gives this Court jurisdiction to make orders relating to the welfare of children and provides that the paramount consideration in deciding to make such an order is the best interests of the child.  The rationale for the need for authorisation is, essentially, that some kinds of medical treatment are viewed as so serious and potentially having such irreversible effects that the Court, rather than the parents, should authorise that treatment.  The proposed treatment for Cameron is in that category.

4. By this application, the parents of Cameron seek the Court’s authorisation, pursuant to its welfare jurisdiction, of proposed Stage 2 male pubertal induction treatment for Cameron for gender dysphoria. 

5. Sometimes children who have not yet attained the age of 18 years have the capacity themselves to consent to or authorise medical treatment.  In this case, the expert medical evidence, in summary, is uniformly to the effect that whilst Cameron has some significant understanding and insight, and certainly his own views and wishes about what should occur, the medical experts opine to the effect that, given the complexity of the issues involved, Cameron does not presently have a complete or full understanding of what is proposed by way of treatment and, in particular, its potential consequences, detailed within the expert medical reports. 

6. On that basis, the treating medical experts express views uniformly to the effect that Cameron does not yet have what is referred to as Gillick competency, being a reference to a decision in England[2] adopted in Australia,[3] as to the level of competency required for a minor to be able to consent themselves to their own treatment.  I accept that evidence.

   [2]          Gillick v West Norfolk A.H.A [1986] A.C. 112.

   [3]Marion’s Case (supra).

7. This application is supported by affidavits of each of Cameron’s parents, the expert evidence of Cameron’s treating medical specialists who include his treating child and adolescent psychiatrist; his specialist medical practitioner in paediatrics and psychiatry; and his treating consultant physician in paediatrics and endocrinologist. 

8. In addition to the material already referred to, I gave leave at the hearing today pursuant to s 100B of the Act, for an affidavit to be filed by Cameron himself. I have also granted leave for Cameron to be present during the hearing of the application. In my view, Cameron has a right to be heard in the proceedings and receipt of his affidavit is one method of the Court achieving that. I am mindful of Cameron’s age and obvious level of maturity evidenced in the material in support of the application, including his own affidavit.

9. I note that the application has been served in accordance with the Family Law Rules 2004 (Cth) upon the prescribed child welfare authority. An appearance was made by Mr X of counsel on behalf of the relevant Government agency (“the Department”), effectively as amicus curiae in that the Department does not seek to contradict the application and, indeed, is supportive of it, including the orders sought for anonymity. 

10. The evidence establishes that Cameron, whilst assigned female at birth, has a comprehensive history of marked, longstanding gender dysphoria since he was about four years of age.  He has met the diagnosis by his medical experts of gender dysphoria.  Pleasingly, as referred to by the medical experts, gender dysphoria is not now generally considered a mental illness, although many of the consequences for a young person who does not feel they are living in the appropriate body for themselves can have profound distress and cause significant social, emotional and relationship difficulties.

11. The written submissions provided by Ms Y of counsel for the applicants in support of the application have been admitted and marked as Exhibit 1.  In my judgment, those submissions adequately summarise the comprehensive and compelling medical evidence in this case in support of the orders sought by this application.  I accept the accuracy of those submissions as to the relevant facts and also as to the effect of the medical evidence and I accept the reasoning in those submissions as to the orders sought being in Cameron’s best interests.

12. In my judgment, accepting as I do the expert medical evidence that has been filed in support of it; and accepting, as I do, the accuracy and force of the submissions filed in support of the application; I find that it is overwhelmingly in Cameron’s best interests for orders to be made in terms sought in the application, including the order sought in relation to anonymity. 

13. I note in passing that Cameron in his own affidavit filed by leave today refers to today’s experience and appearance before the Court being the culmination of a dream he has had for some considerable time.  The Court wishes him well for his future, acknowledging the maturity and courage he has shown in the past and acknowledging that he has, amongst many things, the support of caring and capable parents who support him by this application and, no doubt, will support him in the future that he faces with its challenges.  The Court wishes him and them well in that future. 

14. I make orders in conformity with the orders sought in the application together with the orders for non-publication that are sought.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 December 2015.

Associate: 

Date: 14 December 2015