Re: Chloe

[2015] FamCA 1226

FAMILY COURT OF AUSTRALIA

RE: CHLOE [2015] FamCA 1226

FAMILY LAW – CHILDREN – Where the Minister for the relevant Government Department has parental responsibility for the subject child and she lives in foster care – Where the Minister took the appropriate course in seeking a declaration from the Court that he has the authority to authorise the administration of Phase 1 treatment for the condition of Gender Dysphoria for the child in the present circumstances – Where it is in the best interests of the child for the Minister to have that authority – Orders made accordingly.

Family Law Act 1975 (Cth), ss 4, 67ZC, 68L

FIRST APPLICANT: Minister for the relevant Government Department

SECOND APPLICANT: Relevant Government Department 

FIRST RESPONDENT: The Mother

SECOND RESPONDENT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 17 December 2015

JUDGMENT OF: Cleary J

HEARING DATE: 17 December 2015

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. 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 Act 1975 (Cth), being the person with parental responsibility for the child

   
   

   CHLOE, may authorise the administration of Phase 1 treatment for the condition of childhood gender dysphoria under section 67ZC of the Family Law Act 1975 (Cth) on and from a date to be determined by the treating medical team of Chloe.

2. That the full name of CHLOE, her family members, her hospital, the Independent Children’s Lawyer, her medical practitioners, her school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of the Minister the relevant Government Department’s lawyers and any other fact or matter that may identify CHLOE shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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 numbers and lawyers’ names.

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

4. Leave is granted to the Applicant to relist this matter before me in respect of any difficulties arising for the child with using the name “CHLOE” NOTING that an Order sought in respect to change of birth certificate has not been made at this stage and that the school which the child attends supports the use of her preferred name.

5. Pursuant to Section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of Chloe and to facilitate such appointment the parties do forward all relevant documents to Legal Aid … as soon as possible.

6. That the Applicants do all such things as may be necessary to facilitate the child’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Re: Chloe is approved 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 suppressed

Minister for the relevant Government Department

First Applicant

And

The relevant Government Department

Second Applicant

And

The Mother

First Respondent

And

The Father

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application under s 67ZC of the Family Law Act 1975 (Cth).

2. The applicants are the Minister for the relevant Government Department

   
   

   (“the Minister”) and the relevant Government Department (“the Department”). 

3. The first and second respondents are the biological parents of the subject child. 

4. The subject child prefers to be known as “Chloe”. 

The Applications

1. The application is in the alternative - for a declaration either that:

   a)The Minister, being a person with parental responsibility for the child, is not required to seek the Court’s authority for the administration of Phase 1 treatment for the condition of Childhood Gender Dysphoria; or

   b)The Minister may authorise administration of Phase 1 treatment for the said condition.

2. There are also orders sought for:

   a)Suppression of identifying details;

   b)Change of the details of the child’s birth certificate; and

   c)Restriction on access to the file. 

3. An oral application is made today for the appointment of an Independent Children’s Lawyer and that order, in the circumstances, will be made. 

4. Phase 1 treatment would be the administration of puberty suppressing medication for the suspension of pubertal development. 

Evidence

1. The documents relied on in respect of the application were as follows: 

   (a)Initiating Application filed 15/12/2015;

   (b)Affidavit of Mr S (manager of case work with responsibility for the case work management for the child) filed 15/12/2015;

   (c)Affidavit of Dr K (a child and adolescent psychiatrist) filed 15/12/2015;

   (d)Affidavit of Ms C (a Clinical Psychologist) filed 15/12/2015;

   (e)Affidavit of Dr R (a Gender Counsellor) filed 15/12/2015; and

   (f)Affidavit of Professor G filed 15/12/2015.

Short History of Relevant Events

1. The child has lived in care in the community since approximately April 2010, so from the age of almost eight years. She has been in her current placement since 22 April 2010. The child’s foster carers are supportive of her proceeding with a gender transition, which has been underway for some time. 

2. The biological mother of the child is supportive of the treatment. There is presently not a good working relationship between the child and the mother.  The child has asked for visits to cease. 

3. In respect of the father, there has been no contact between the child and the father since she was about 12 months old.  In the affidavit of the case worker, there is a conversation set out in a file note where the father was advised at that time, in April 2010, that the child had recently been removed and was in Departmental care.[1] 

   [1] Affidavit of Mr S filed 15/12/2015, par 218

4. The father is quoted as follows:

   [The father] adamantly declared that ‘I don’t want nothing to do with it’ and that he hasn’t seen [the child] since he was 12 months old.  The father went on to say that he had recently been released from prison and that that had been for sexual harassment, as described by the father, of a family member of the child, and that he now ‘doesn’t want anything to do with women or children’. The father went on to say he didn’t want to hear about anything that was happening. 

5. There has been no contact since, and the Department is presently continuing to search for the father to explore his views and to see if he has any relevant information to give. To date, they have been unable to do so. 

6. For that reason, the Minister is taking the conservative course appropriately, in my view, of seeking a declaration from the Court that the Minister is authorised to administer the treatment. 

The Issues

1. I take into account the following matters in considering the best interests of the child.

The child’s views

1. On 15 December 2014 Chloe confided that she wanted to be a girl.  By mid-2015 she was reported to be a much happier and more confident person as a girl. 

2. She was exposed as an infant to neglect and abuse.  She was what could only be described as “belted” as a young child. There was often insufficient food, and she was harshly punished. She has suffered from anxiety-induced incontinence for many years. Since she began her life as a girl, that condition has begun to improve. 

3. The need for the treatment to commence was such that, on the advice of Professor G, it commenced on 17 September 2015, with the first injection being on 23 September 2015. 

4. The child has been attending school as a girl, and the vast majority of children at the school have been supportive, although there have been some difficulties with one child. 

5. Chloe was diagnosed on 13 November 2014 with moderate intellectual disability, functioning at an extremely low range academically.[2]  This, too, has begun to improve as she settles and learns more easily, consistent with the time she has spent as a girl. 

   [2] Affidavit of Mr S filed 15/12/2015, par 185

Conclusion

1. There seems to be every reason for the child to have her strongly-felt wish for this treatment to go ahead, and that has commenced. Her foster parents viewed a program on the ABC about children making the transition from one gender to another, and this was apparently an illuminating moment for the child and her hopes and spirits began to rise accordingly.

2. I consider that there is ample evidence for the need for the treatment and that the Minister should be authorised. 

3. I make orders accordingly.

I certify that the preceding twenty four (24) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 17 December 2015.

Associate: 

Date:  15 April 2016