Re: Dallas

[2016] FamCA 1131

FAMILY COURT OF AUSTRALIA

RE: DALLAS [2016] FamCA 1131

FAMILY LAW – CHILDREN – Gender Dysphoria – Where the parents sought a declaration that the child was competent to consent to phase 2 treatment for Gender Dysphoria – Where the child has not undergone phase 1 treatment for Gender Dysphoria – Where the Secretary of Department gave instructions not to intervene – 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.

Re Jamie (2013) FLC 93-547
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218

APPLICANTS: The Mother and the Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 8 December 2016

EX TEMPORE JUDGMENT OF: Justice Cleary

HEARING DATE: 8 December 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. That the name of the child DALLAS (formerly “A”), born … 2000 (“the child”) and all others involved in this matter not be released.

2. That the child be declared Gillick Competent to consent to ‘Phase 2’ testosterone hormone therapy treatment.

3. That the full name of DALLAS (formerly “A”), his family members, his hospital, his medical practitioners, his school, this Court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, and any other fact or matter that may identify DALLAS shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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.

4. 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: Dallas 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

The Mother and the Father

Applicants

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 2 December 2016 by the Father and the Mother, the parents of a young person, Dallas, born in 2000.

2. Dallas has been diagnosed with Gender Dysphoria.  There is no contradictor to this application.  The Department was served.  Tendered into evidence, was confirmation that the Secretary has given instructions not to intervene in the matter.[1] 

   [1] Exhibit 1

3. The application was listed urgently.

4. The documents relied on are as follows: 

   a)The Initiating Application filed on 2 December 2016;

   b)Affidavit of the Mother filed 2 December 2016;

   c)Affidavit of the Father filed 2 December 2016;

   d)Affidavit of Dr G, child and family psychiatrist, filed 2 December 2016; and

   e)A report of 21 April 2016 by Dr R, counsellor, for which there will be an affidavit in due course.  The report became Exhibit 2. 

5. The relevant orders sought in the application can be summarised as follows: that the child be declared Gillick competent to consent to phase 2 testosterone hormone therapy treatment, or in the alternative seeks that the parents may authorise that treatment.

The Evidence

1. Dallas was born with the physical characteristics of a female.  He has a twin sister and a younger sibling.  Objectively he began identifying with the male gender at about 13 years.  Subjectively he always thought he was a boy. 

2. He is now 16 years and six months old in year 10 at high school.  His self-identity is male.  He has dressed and presented as a boy for two years including at school. 

3. Dallas has not undertaken phase 1 treatment which is reversible.  Phase 1 falls within the ambit of parental responsibility for parents of a child not yet able to make his or her own decisions about treatment. 

4. It is proposed that Dallas urgently undertakes stage 2 treatment which is characterised as a special medical procedure or treatment.  The issue for determination is, does Dallas have the capacity to consent to his own medical treatment? 

5. On the authority of the High Court decision in Marion’s case and the decision of the Full Court of the Family Court in ReJamie (2013) FLC 93-547 this issue requires the Court to determine Gillick competence. 

6. The question being, does Dallas have sufficient understanding of the treatment and procedures proposed to give a consent valid in law?  If the Court so determines that is the end of the matter.  If not then the Court must consider whether to authorise the parents to consent to stage 2 treatment.  In making that assessment the Court must consider the best interests of the child as the paramount consideration.  The most persuasive relevant factor would be the views of the child in accordance with that child’s age and maturity. 

7. In respect to Gillick competence the evidence from Dr G is that both she and Dallas’ general practitioner have explained the risks and side effects of the testosterone treatment, that Dallas has accepted the risks and would like to start the treatment for the benefit.  He has made mention of his voice which in his own opinion “gives him away” as female.

8. Dr G has assessed Dallas as capable of making an informed decision about treatment.  He has seen a specialist counsellor for several sessions, Dr R.

Conclusion

1. Dallas experiences discomfort and distaste about the present state of his body and looks forward to future surgery which will align his physical body with his sense of self. 

2. The evidence strongly supports the fact that he is ready and wishes to proceed with phase 2 treatment. 

3. Dallas also has access to both parents who are fully informed about what phase 2 treatment entails and are very much supportive of him. 

4. I am satisfied that the evidence establishes that Dallas is Gillick competent and can authorise his own treatment. 

5. Orders are made accordingly together with orders supporting privacy around these proceedings. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 8 December 2016.

Associate: 

Date: 20 December 2016