Re: Corey

[2017] FamCA 595

FAMILY COURT OF AUSTRALIA

RE: COREY [2017] FamCA 595

FAMILY LAW – CHILDREN – Where the parents sought a declaration that their child is competent to consent to the administration of Phase 2 treatment for Gender Dysphoria – Where a child psychiatrist explained the risks, effects and side effect of treatment which the child understands and still wishes to proceed – Concluded the child is sufficiently competent to understand the nature of and express a decision about the receipt of Phase 2 treatment – Declared that the child is competent to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them

Family Law Act 1975 (Cth) ss 4, 61B, 61C

Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218

APPLICANT: The Father

APPLICANT: The Mother

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 21 July 2017

JUDGMENT OF: Austin J

HEARING DATE: 21 July 2017

REPRESENTATION

By Court Order the names of Solicitors have been suppressed

Orders

1.Declaration that Corey (formerly known as …), born … 2000, (‘the child’) is competent to consent to the administration to him of Phase 2 treatment for the condition known as ‘Gender Dysphoria’.

2.So as to protect the child:

a.The child’s full name, the names of his family members and his medical practitioners, this Court’s file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way;

b.Only anonymised Reasons for Judgment and Orders shall be released by the Court to non-parties without contrary order of a Judge; and

c.No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

3.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 applicants and the child have leave to publish a copy of these Orders and a copy of the Reasons for such Orders, which are not anonymised pursuant to Order 2 hereof, to:

a.The child’s treating medical practitioners; and

b.The State Registrar of Births, Deaths and Marriages.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Corey 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 suppressed

The Father

Applicant

And

The Mother

Applicant

EX TEMPORE

REASONS FOR JUDGMENT

1.On 11 July 2017, the applicant parents filed an Initiating Application seeking declarations in respect of their 17 year old child, who was born female but identifies as male. The child was diagnosed with “Gender Dysphoria”, as defined in DSM-V, in September 2015 and has been receiving Phase 1 treatment for the condition since March 2016.

2.The applicants now seek declarations that: 

(a)the child is competent to consent to his administration with Phase 2 treatment;  and

(b)the child should be known by the new male name he has adopted and has been using for some time.

3.In support of the Application, the applicants rely upon: 

(a)the affidavit of the applicant mother, filed on 11 July 2017; 

(b)the affidavit of the child’s psychiatrist, Dr B, filed on 11 July 2017;  and

(c)the affidavit of the child’s endocrinologist, Dr F, filed on 11 July 2017. 

4.The Application was not the subject of any opposition, but the grant of the first declaration sought by the applicants is still dependent upon proper proof of the child’s competence. Although there was no contradictor to the Application, it was served upon the State Department and a representative of the Department corresponded with the Court in July 2017 acknowledging service of the Application and the supporting material, indicating no intention to intervene in the proceedings (see Exhibit A).

Treatment

5.Phase 2 treatment for Gender Dysphoria is irreversible, and so decisions about a child’s administration with such treatment must be made on sound evidence.  The decision about its authorisation is regarded as one which falls beyond the limit of parental responsibility for a child and the law does not permit the Court to enlarge parents’ powers of parental responsibility beyond its ordinary limits (see Secretary Department of Health and Community Services & JWB & SMB (Marion’s Case) (1992) 175 CLR 218).

6.The administration of Phase 2 treatment to a child suffering from the condition of Gender Dysphoria is a matter for the Court to decide if the child lacks competence to decide for him or herself (see Re Jamie (2013) FLC 93-547).

7.The question of the child’s competence is determined by application of the evidence to the legal principles enunciated in Gillick & West Norfolk and Wisbech Area Health Authority (1986) AC 112, which were confirmed by the High Court in Marion’s Case. A child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed (Marion’s Case at 237-238). Relevantly then, is the child competent to give his doctors informed consent to his administration with Phase 2 treatment?

8.Dr B has consulted with the child and his mother on more than 20 occasions between September 2015 (when the child was first diagnosed) and June 2017.

9.Following the child’s diagnosis in September 2015, he was referred to Dr F, whom he first consulted in March 2016. Dr F has been overseeing the administration of Phase 1 treatment to the child and she last met with him in February 2017, at which time he was anxious to start Phase 2 treatment. Dr F made clear to the child and his parents that Phase 2 treatment is not reversible. Dr B has also explained the risks, effects and side effects of the treatment to the child and she believes the child understands the risks and effects, but still wishes to proceed with the treatment.  Dr B does not believe the child’s decision is uninformed or erroneous.

10.Dr B deposed:

I feel that [the child] is capable of making an informed decision about the treatment of testosterone. He understands what he is asking for, what the effects and risks are. The child has also apparently indicated to both of his parents that he wishes to move on to Phase 2 treatment as quickly as possible and that he understands that such treatment is irreversible once it is embarked upon.

11.Dr B also deposed:

[The child’s] health and emotional wellbeing is almost certain to deteriorate without testosterone. His mental and physical health is dependent on his perception of himself as male … This treatment will be beneficial for his long-term mental health.

12.Dr B’s ultimate opinion was that it was “essential” for the child’s “mental health” that he be permitted by the Court to proceed with Phase 2 treatment as a matter of urgency. Of course, Dr B’s belief about the child’s derivation of benefit from the treatment does not go to the issue of the child’s underlying competence to make his own decision about it, but it is still comforting to know the child’s treating psychiatrist considers, not only is he competent to decide, but that the treatment is in his best interests.

13.I accept the evidence of Dr B that the child is competent to make and express his own decision about the receipt of Phase 2 treatment. Dr B specialises in child and adolescent psychiatry and has had the chance to evaluate the child’s maturity and competence over more than 20 consultations spanning nearly two years. I am satisfied the first declaration sought by the applicants should be granted.

Name Change

14.Unlike decisions about some forms of profound medical treatment for children, which fall outside the scope of parental responsibility held by a child’s parents or other carers, decisions about the name by which a child is known is quintessentially a decision for the adults in whom parental responsibility for the child is vested. 

15.The child’s parents live in an intact marriage. They each have parental responsibility for the child (s 61C of the Family Law Act 1975 (Cth)), which is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

16.Any issue about the child’s name is defined in the Act to be a “major long-term issue” in relation to the child (s 4) and so, absent contrary court order, decisions about a child’s name fall to be decided by the child’s parents. 

17.Pursuant to the provisions of the State Act, the child’s birth was registered in his former female name.  This Court has no power under the State Act to declare, contrary to that registration, the child should now instead be known by his adopted male name. The applicants’ application for a declaration to that effect must be dismissed. 

18.The child’s name can be changed, but that must be as a consequence of the parents’ exercise of their parental responsibility for the child to invoke the provisions of Part 5 of the State Act. The change can be made administratively.

Privacy

19.Attendant procedural orders will be made to ensure the privacy of the child and his family.  

20.For those reasons, I make the following orders.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 July 2017.

Associate: 

Date:  2 August 2017