Re: Chloe
[2018] FamCA 1006
•21 November 2018
FAMILY COURT OF AUSTRALIA
| RE: CHLOE | [2018] FamCA 1006 |
| FAMILY LAW – CHILDREN – Gender Dysphoria – Stage 2 treatment – Where the Minister has parental responsibility for the child – Whether the Minister requires court authorisation for the child to commence Stage 2 treatment – Whether the Court has the jurisdiction to determine this matter under s 69ZK of the Family Law Act 1975 (Cth) – Where the Court has jurisdiction when the Minister institutes the proceedings – Where treating practitioners have agreed that the subject child is Gillick competent – Where it is agreed that the proposed treatment is therapeutic – Where there is no controversy regarding the treatment - Where it is determined that the role, rights and responsibilities of biological parents are not distinguished from the role, rights and responsibilities of the Minister who has parental responsibility – Where the Minister, being the person with parental responsibility for the child, is not required to seek court authorisation for the child to commence Stage 2 treatment – Whether the Minister requires court authorisation to change the name of a child – Where the Minister, being the person with parental responsibility for the child, is not required to seek court authorisation to change the name of the child. |
| Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79 Births Deaths and Marriages Act 1995 (NSW) s 28(2) Family Law Act 1975 (Cth) ss 4, 69ZK Family Law Regulations reg 12B(2), 12BA |
| Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re: Kelvin (2017) 351 ALR 329 Re: Matthew [2018] FamCA 161 |
| APPLICANT: | Secretary of the relevant Government Department |
| 2ND APPLICANT: | Minister for the relevant Government Department |
| RESPONDENT: | The Mother |
| 2ND RESPONDENT: | The Father |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children's Lawyer |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 21 November 2018 |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | In Chambers |
REPRESENTATION
By Court Order the names of solicitors have been suppressed
Orders
IT IS DECLARED
That authorisation by the Family Court of Australia is not required for the administration of Stage 2 treatment for childhood Gender Dysphoria in relation to the child CHLOE provided that the subject child has been diagnosed as suffering from Gender Dysphoria, treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy.
That the Minister for the relevant Government Department, in his capacity as “the child welfare officer” within the meaning of section 4 of the Family Law Act1975 (Cth) being the person with parental responsibility for Chloe is not required to seek the authority of the Family Court of Australia for the administration of Phase 2 treatment for the condition of childhood Gender Dysphoria.
IT IS ORDERED
That the application filed 3 October 2018 is otherwise dismissed.
That the full name of CHLOE, her family members, her hospital, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, and any other fact or matter that may identify CHLOE, 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, to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the 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: Chloe 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
| Secretary of the relevant Government Department |
Applicant
And
| Minister for the relevant Government Department |
2nd Applicant
And
The Mother
Respondent
And
The Father
2nd Respondent
REASONS FOR JUDGMENT
By an application filed on 3 October 2018, the Secretary of the relevant Government Department (“the Secretary”) as Applicant, and the Minister for the relevant Government Department (“the Minister”) as Second Applicant, seek a declaration that court authorisation is not required for the administration of Stage 2 treatment for childhood Gender Dysphoria in circumstances where the Minister has parental responsibility for the child and the child is competent within the parameters of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”).
In the alternate, the applicants seek an order authorising the proposed treatment.
The proceedings concern a child known as Chloe, who was born in 2002 and is now 16 years of age. Chloe was born genetically male but identifies as female.
Chloe was assumed into the care of the Minister in March 2010 and from that time the Minister has had parental responsibility for her as a result of orders made pursuant to the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
In December 2015, an application was made by the Secretary and the Minister to the Family Court of Australia, seeking authorisation for the commencement of Stage 1 therapy for Chloe. Orders were made permitting the Minister, in her capacity as the person exercising parental responsibility for Chloe, to authorise Stage 1 treatment.
The application now before the Court relates to Stage 2 treatment.
Stage 2 treatment, or “gender affirming hormone treatment”, for a child with Gender Dysphoria is accepted to involve the use of either oestrogen to feminise the body in those who have a female gender identity, or the use of testosterone to masculinise the body in those who have a male gender identity. Stage 2 treatment does not involve surgical intervention.
Chloe’s mother was served with the application. She appeared by telephone on the return date of the application and told the Court that she agreed with the proposed treatment and that she did not wish to make any submissions.
Chloe’s father has not been served but I am satisfied that the applicants have made all reasonable enquires to locate him. An order has been made dispensing with service of the application upon the father.
An Independent Children’s Lawyer (“ICL”) was appointed for Chloe.
THE ISSUES
In Re: Matthew [2018] FamCA 161, I made a declaration in the following terms:
That in the circumstances of this case, where the subject child has been diagnosed as suffering from Gender Dysphoria, where treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed.
Stage 3 treatment involves surgical intervention. However, the same reasoning and criteria should be applied in relation to Stage 2 treatment for the reasons which were explained in Re: Matthew.
In the present case, the Minister has determined that Chloe has been diagnosed as suffering from Gender Dysphoria, that Chloe’s treating practitioners have agreed that she is Gillick competent, and that Chloe’s treating practitioners have agreed that the proposed treatment is therapeutic.
There is no controversy in relation to any of these matters. The Minister, Chloe’s treating practitioners and Chloe’s mother are in agreement.
The issue now raised by the applicants is whether the same considerations apply to the Minister as those which apply where the treatment is authorised by a parent.
JURISDICTION
The jurisdiction of the Family Court of Australia in relation to children who are under the care of the Minister, is limited by the provisions of s69ZK(1) of the Family Law Act 1975 (Cth):
69ZK Child welfare laws not affected
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a) the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
The ICL submitted:
Section 4 (1) of the Act defines ‘Child Welfare Officer’ in relation to a state or territory as follows:
“(a) A person who, because he or she holds, or performs the duties of, a prescribed office of the state or territory, has responsibilities in relation to a child welfare law of the state or territory; or
(b) A person authorised in writing by such a person for the purposes of part VII “.Reg 12B (2) of the Family Law Regulations provides:
… “For the purposes of the definition of child welfare law in subsection 4(1) of the Act, each law specified in column 2 of an item in schedule 5 being the law of the state or territory specified in column 3 of that item is prescribed”.
Schedule 5 of the family [sic] Law Regulations provides that the Children and Young Persons (Care and Protection) Act 1998 (NSW) is a child welfare law for the purposes of subsection 4(1) of the Act.
Reg 12BA provides:
..”for paragraph (a) of the definition of child welfare officer in section 4(1) of the Act, each of the following is a prescribed office:
a) NSW – the Offices of:
i.Minister for Community Services, in relation to the… Children and Young Persons (Care and Protection) Act 1998 NSW…”
The Minister is clearly a ‘child welfare officer’ within the meaning of s 69ZK (1) (b); further, as the only person with parental responsibility for Chloe, the Minister is clearly a person concerned with Chloe’s care, welfare and development within the meaning of s 65C(c).
I accept that submission.
The Minister, as an applicant, has consented to the institution of these proceedings.
IS COURT AUTHORISATION REQUIRED WHEN THE MINISTER HAS PARENTAL RESPONSIBILITY?
On behalf of the applicants, it is submitted that this issue was not addressed by the Full Court in Re: Kelvin (2017) 351 ALR 329. In Re: Kelvin the plurality stated at 167:
We note though that in answering that question we are not saying anything about the need for court authorisation where the child in question is under the care of a State Government Department. Nor, are we saying anything about the need for court authorisation where there is a genuine dispute or controversy as to whether the treatment should be administered; e.g., if the parents, or the medical professionals are unable to agree. There is no doubt that the Court has the jurisdiction and the power to address issues such as those.
S 79(1) of the Children and Young Persons (Care and Protection) Act (“the Care and Protection Act”) provides that the Children’s Court, exercising jurisdiction under that Act, may make an order allocating all aspects of parental responsibility for a child in need of care for a specified period. Pursuant to s 79(1)(b) of the Care and Protection Act, such responsibility can, as is the case for Chloe, be allocated solely to the Minister. In the case of Chloe, the allocation is until Chloe is 18 years old.
S 79(2) of the Care and Protection Act provides:
The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court under subsection (1) include, but are not limited to, the following:
(a) the residence of the child or young person,
(b) contact,
(c) the education and training of the child or young person,
(d) the religious and cultural upbringing of the child or young person,
(e) the medical and dental treatment of the child or young person.
The Family Law Act provides that the exercise of parental responsibility involves the making of decisions about major long term issues for a child. Those issues are defined to be:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Thus it can be seen that the parental responsibility of the Minister under the State legislation confers on the Minister even greater responsibilities than are conferred on parents pursuant to the Family Law Act.
There is no logical reason to distinguish between the role, rights and responsibilities of biological parents and the role, rights and responsibilities of the Minister who has parental responsibility.
Accordingly, just as parents are not required to apply to the Court in relation to Stage 2 treatment for Gender Dysphoria, in circumstances where the criteria in Re: Matthew are satisfied, neither is the Minister so required.
A declaration will be made in those terms.
It is not necessary to determine the alternate application.
ANCILLARY APPLICATIONS
Further orders are sought in relation to the registration of a change of name for Chloe.
By virtue of s 28(2) of the Births Deaths and Marriages Act 1995 (NSW) the Minister, having been allocated parental responsibility for Chloe, is a person who can apply to register a change of a child’s name where parents cannot exercise their parental responsibilities.
Chloe’s parents cannot exercise their parental responsibilities because of the order made giving parental responsibility to the Minister.
No order of this Court is necessary for the Minister to make such an application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 November 2018.
Associate:
Date: 21 November 2018
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