Re: Daniel null
[2017] FamCA 155
•17 March 2017
FAMILY COURT OF AUSTRALIA
| RE: DANIEL | [2017] FamCA 155 |
| FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicant is the mother of a child diagnosed with Gender Dysphoria – where the mother seeks a declaration that the child is Gillick competent – where the court authorises the child to make his own decision in relation to stage two hormonal treatment – where the application for a declaration of Gillick competency is dismissed with a right of reinstatement upon the decision of the Full Court in Re Kelvin [2017] FamCA 78. |
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rr 1.12 and 4.10
| Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re Jacinta [2015] FamCA 1196 |
Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369
Re Kelvin [2017] FamCA 78
| Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218 |
| APPLICANT: | The Mother |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 17 March 2017 |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 10 March 2017 |
REPRESENTATION
By Court Order the names of Counsel and Solicitor have been suppressed
Orders
That pursuant to Rule 1.12 of the Family Law Rules 2004 (“the Rules”) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 27 February 2017 be served on the prescribed child welfare authority be dispensed with.
That the name of the child, Daniel born … 2000, Daniel’s family members and their occupations, the hospital, Daniel’s medical practitioners, Daniel’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the applicant’s lawyer and any other fact or matter that may identify Daniel shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets excluding the registry, file number and lawyers names and details as well as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 coversheet of Reasons for Judgment that includes the file number and the lawyers’ names.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.
That the applicant be at liberty to provide a copy of the un-anonymised orders and the un-anonymised Reasons for Judgment to all persons involved with Daniel’s treatment.
That upon the Court being satisfied that the child Daniel born … 2000 is competent to consent to the medical treatment described in the Initiating Application filed 27 February 2017 the applicant’s Initiating Application filed 27 February 2017 be otherwise dismissed with a right of reinstatement upon the determination by the Full Court of the Case Stated in Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require determination by a judge.
AND THE COURT NOTES
That the treatment described in the applicant’s Initiating Application filed 27 February 2017 is the following treatment for gender dysphoria:-
Stage two hormonal treatment with testosterone to masculinise his body.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Daniel 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 Mother |
Applicant
REASONS FOR JUDGMENT
INTRODUCTION
Daniel is aged almost 17 years. Although biologically female, since 2014 Daniel has lived as a male in all aspects of his life. That year, Daniel was referred to the gender dysphoria service at the X Hospital. He has been attending that clinic since June 2015 and has been diagnosed with gender dysphoria in adolescents and adults in accordance with the criteria in DSM-V.
Daniel now wishes to commence stage two treatment for gender dysphoria which involves him being treated with testosterone to masculinise his body. In order to commence such treatment, Daniel’s mother has filed an Application seeking a declaration that Daniel is Gillick competent to consent to that treatment. An order is also sought that the mother be permitted to change Daniel’s name.
These are my Reasons for Judgment with respect to that Application.
Material relied upon
The applicant relies upon the following material:
·Initiating Application filed 27 February 2017;
·Affidavit of the mother filed 27 February 2017;
·Affidavit of Dr P filed 27 February 2017;
·Affidavit of Dr K filed 27 February 2017;
·Affidavit of Dr F filed 27 February 2017.
BACKGROUND
Daniel was born in 2000. He has an older sister and a younger brother. Daniel’s parents were married in Europe in 1990 and relocated to Australia in 1998. They were divorced in 2008.
Daniel’s father continues to reside in an interstate capital city.
In 2011 Daniel relocated to this State with his mother and siblings.
In her Affidavit filed 27 February 2017, Daniel’s mother deposes that from Daniel’s early childhood years he was observed to be a child who enjoyed wearing clothing and playing with toys typically associated with boys. It was his preference in those early years to play with boys.
In 2013, when Daniel was in Year 8 he began to self-harm. As a result he attended upon a school counsellor to assist him with anxiety and depression related to his gender identity issues.
From the commencement of Year 9 in 2014, Daniel commenced wearing exclusively male clothing to school and at home. Daniel informed his mother at that time that he was transgender. The mother deposes that it was clear to her from that conversation that Daniel had already undertaken significant research into his transition as he demonstrated substantial knowledge about treatments available to him.
As a consequence of those discussions Daniel’s mother sought a referral to the gender dysphoria service at the X Hospital. Daniel’s first appointment at that service was in June 2015 and he now attends that clinic every four to six weeks.
Currently Daniel takes medication to stop his menstrual cycle. However, Daniel is concerned by the feminisation of his body and wears a binder to cover his breasts. The mother deposes that Daniel is extremely self-conscious of his feminine physical traits.
Daniel has self-harmed on several occasions including cutting his wrists.
Daniel has had little contact with his father who resides interstate. Nonetheless, his father has executed the consent form required by the hospital to enable commencement of treatment with testosterone.
At the time this Application was originally listed before me on 1 March 2017, the father had not been served with the Application. The matter was adjourned to enable service to be effected. On 6 March 2017 an Affidavit of Service of Mr T was filed. That Affidavit confirms that the father was served with the material relied upon by the mother (referred to above). It also states that at the time of service the father confirmed that he was the respondent named in the application and that he was prepared to accept the documents. At the time of service the father signed an Acknowledgement of Service confirming that he was served with the documents on 2 March 2017.
During the course of the hearing before me, the mother gave evidence confirming that she had had conversations by telephone with the father after he had been served with the documents. She confirmed that the father acknowledged to her that he had received the Initiating Application and supporting documents. Further, the mother confirmed in her evidence that she recognised the signature on the Acknowledgement of Service as that of the father. I accept that evidence.
Having regard to the evidence of Mr T and the mother, I am satisfied that the father has been given notice of the applications before the Court.
On 6 March 2017 the mother’s lawyers forwarded an email to the father confirming that the matter was listed for hearing before me on 10 March 2017 (Exhibit A-1). Having regard to that document, I am satisfied that the father has had notice of the hearing.
The father has filed no material in the proceedings. At the commencement of the hearing at 10.00am the father was called. He did not respond to that call. Accordingly, the hearing proceeded in the father’s absence.
LEGAL PRINCIPLES
In the decision of Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369 (“Re Jamie”) the Full Court considered what is known as stage two treatment of gender dysphoria. The Full Court there considered whether the stage two treatment is a medical procedure for which consent lies outside the bounds of parental responsibility, therefore requiring the imprimatur of the Court. In determining that issue the Full Court considered the question of the child’s capacity to consent to stage two treatment; that is the question of whether a Gillick competent child could consent to the procedure.
The term “Gillick competence” comes from the decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”), where it was said by Lord Scarman at pages 188 to 189:-
…I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.
The High Court confirmed in the decision of Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218 (“Marion’s case”) that the view of the House of Lords in Gillick represents the common law in Australia.
The Full Court in Re Jamie determined that a Gillick competent child could consent to stage two treatment. In considering that question, Bryant CJ stated:-
134. In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does. The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that 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 is proposed”.
135. I see no basis for reading this down because the treatment is for childhood gender identity disorder. Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.
(Original emphasis).
It was held by the Full Court that the question of Gillick competence is a matter for the Court to determine. That this is so is for two reasons:-
·first, due to the risk of making the wrong decision as to the child’s capacity to give consent; and
·second, because the consequences of a wrong decision are particularly grave.
The Full Court held that once the question of Gillick competence is established, the Court would have no further role with respect to determination as to stage two treatment.
Rule 4.10 of the Family Law Rules (Cth) 2004 (“the Rules”) provides that applications for medical procedures in relation to a child must be served on the prescribed child welfare authority. The prescribed child welfare authority in this instance is the relevant Department.
In circumstances where the father has elected not to participate in the proceedings, I am satisfied that there is no genuine controversy in the matter. The mother is supportive of Daniel’s desire to commence stage two treatment and the assessment of Daniel’s treating medical practitioners, to which I will refer in more detail later in this judgment, is that he is Gillick competent. In those circumstances, I am satisfied that it is appropriate pursuant to r 1.12 of the Rules to dispense with compliance with r 4.10. There can be no benefit to Daniel or his mother in delaying the finalisation of the Application by requiring service of the application on the Department. Similarly, I am satisfied that the appointment of an Independent Children's Lawyer in the matter is unnecessary. All of the evidence before me indicates that Daniel’s interests are well represented by his mother.
The hearing was conducted on the papers. None of the witnesses were required for cross-examination.
The applicable standard of proof is the balance or probabilities in accordance with s 140 of the Evidence Act 1995 (Cth).
Proposed treatment and effects
The proposed stage two treatment for Daniel is testosterone to masculinise his body. Dr F is a paediatrician at the X Hospital and has been treating Daniel for gender dysphoria since 2015. The evidence of Dr F is that there are a number of different formulations of that treatment and the exact form of treatment to be used and method of administration will be individualised for Daniel.
Further, Dr F states that the likely long-term physical, social and psychological effects of the proposed testosterone treatment on Daniel include:-
·Development of hair in the pubic area, armpits and on the beard area of the face;
·Changes in facial shape and appearance;
·Irreversible changing of the voice, due to the growth of the larynx (Adam’s apple) and lengthening of the vocal chords;
·Muscle development;
·Increased oil production by the skin which may result in acne;
·Growth of the clitoris and increased number of erections;
·Stopping the development of ova (eggs) in the ovaries, with loss of fertility;
·Stimulation of bone mineral density;
·Behavioural change as testosterone stimulates more assertiveness (sometimes aggression) and sexual desire.
Dr F identified the following risks with respect to the proposed treatment:-
·Acne;
·Mood swings;
·Heart disease;
·Polycythaemia (increased red blood cells);
·Liver problems and rarely, malignant liver tumours;
·Thinning of the skin in the genital area (longer term).
In addition to the above effects, Dr F states that the effects of testosterone on the ovaries and other female organs over time is not well understood and the danger of inducing abnormalities such as ovarian cancer has not been extensively studied.
Further, Dr F observed that in the event that Daniel chooses to cease testosterone treatment in future, some of the effects of that treatment will not be reversible and that there is a risk of regret.
Is Daniel Gillick Competent?
The issue before the Court is the question of whether Daniel is capable of making his own decision in respect of the proposed stage two treatment. The determination of that issue will depend upon Daniel having sufficient understanding and intelligence to enable him to understand fully the proposed treatment.
Daniel’s mother observes that Daniel has undertaken an “extraordinary amount of research” on gender dysphoria and the proposed treatment. In addition, she deposes that Daniel has participated in fertility counselling in September 2016 in order to discuss his fertility options. Further, she deposes that Daniel is fully aware that the stage two treatment is a life-long treatment that will bring about some irreversible changes to his body. At paragraph 29 of her Affidavit she deposes as follows:-
From my discussions with [Daniel] and what he has said to me, I am confident that he understands the effects of stage two treatment are irreversible in nature. He has told me that he understands that when he is administered testosterone the following changes will occur:
(a)Deepening and changing of the voice;
(b)Growth of Adam’s apple;
(c)Body hair growth;
(d)Stopping the development of ova;
(e)Muscle development; and
(f)Possible bone growth.
Daniel’s mother is firmly of the view that Daniel is Gillick competent. At paragraph 37 of her Affidavit she confirms her support for the proposed stage two treatment, stating:-
As a parent I want to provide [Daniel] with the best opportunities for health and happiness. At the forefront of [Daniel’s] current experiences is his distress and anxiety in relation to his rapidly developing female body. I believe that this distress poses a genuine risk to his mental health, his engagement with the school and community and his capacity to imagine a positive future for himself.
Daniel has attended upon Dr P, consultant psychiatrist since 2015. In his report dated 20 October 2016 (annexure CP-03 to his Affidavit filed 27 February 2017) Dr P assesses Daniel’s capacity to provide an informed decision about the stage two treatment in the following terms at page 9:-
[Daniel] certainly agrees to undertake treatment testosterone. He has been seeking treatment since late2015. He has been consistent in his request to receive testosterone treatment.
I have spoken with [Daniel] on several occasions about his understanding of the consequences of testosterone treatment, and I believe he has a comprehensive understanding of the impact of testosterone upon his body. He has had access to the [X Hospital] information sheet regarding hormone treatment and we were able to go through the contents of this in detail together. He has also spoken at length with Dr [F] and Dr [E], consultant gynaecologist.
[Daniel] has a mature and thoughtful understanding of the impact of hormone treatments. I believe he has a good understanding, having spoken with clinicians at the [gender clinic] and researched himself the web and other resources. [Daniel] does not feel he needs to have a baby from his own body, he feels he would not be able to do that and is aware of alternative ways that he may establish his own family such as adoption or surrogacy should he wish at a later stage. He said he would not go off testosterone in order to have eggs harvested or later to have the eggs implanted as he would become too distressed with a return towards female body after masculinisation. He has also discussed this matter with his mother.
The observations of Dr P are echoed by Dr K, consultant psychiatrist at the X Hospital who provided a second psychiatric opinion with respect to Daniel’s diagnosis with gender dysphoria (annexure PK-03 to her Affidavit filed 27 February 2017). Dr K assessed Daniel on 29 April 2016. She confirmed the diagnosis of gender dysphoria, Daniel meeting the DSM-V criteria for diagnosis in adolescents and adults. As to the question of Daniel’s capacity to make an informed decision regarding the proposed treatment, Dr K assessed him as follows:-
[Daniel] is a bright young man who is able to demonstrate full understanding of the nature of the treatment, including side effects and limitations and is actively requesting the treatment. In my opinion [Daniel] is Gillick competent and is capable of making an informed decision about the treatment. He understands that some aspects of testosterone treatment are irreversible and that treatment will not have an effect on his breast size or some other physical characteristics.
In Dr F’s report dated 6 September 2016 (annexure DF-03 of her Affidavit filed 27 February 2017) her response to the question as to whether Daniel is capable of making an informed decision about stage two treatment was as follows:-
I believe that [Daniel] is Gillick competent to make decisions regarding commencement of stage two (testosterone) treatment. [Daniel] wishes to commence stage two treatment as soon as possible.
[Daniel] has attended seven medical consultations with me since June 2015. He presents as a mature young person, who is able to understand the treatment and the risks and benefits that are known. This includes the risk of regret and potential impact on fertility. [Daniel] has been the driving force behind the request for treatment for gender dysphoria, and advised me at our first meeting that he would like to start testosterone. I wrote in my clinic letter dated 17 July 2015:
[Daniel] states that he feels ‘more male’, rather than ‘trans’, and that he would like to take testosterone. He ‘came out’ as male in Term 4 last year first telling his school well-being coordinator, and then later disclosing this to his mother.
As to Daniel’s understanding of the consequences of the proposed stage two treatment, Dr F reports as follows:-
[Daniel] has had formal cognitive assessment in 2016, which shows an uneven cognitive profile. This shows he has relative strengths in processing speed and perceptual reasoning, but some difficulties with verbal comprehension. This corresponds with his report of some learning difficulties at school, as well as my observations of his communication style during clinic visits. We have therefore had many discussions over multiple visits in relation to stage two treatment, and [Daniel] has demonstrated good understanding of the nature of the treatment and asked relevant questions.
We have discussed fertility on multiple occasions. I believe that [Daniel] is aware of his possible options and the effect of testosterone on longterm fertility. [Daniel] attended an appointment on 17 August 2016 with consultant gynaecologist Dr [M] for fertility counselling.
Having regard to the evidence of Daniel’s mother and his treating medical practitioners, I am satisfied that Daniel has the necessary intelligence and understanding to enable him to give consent to the proposed stage two treatment. I am satisfied on the balance of probabilities that Daniel is competent to fully understand the nature and consequences of the proposed treatment and to make his own decisions in relation to that treatment.
The mother seeks that the Court make a declaration that Daniel is Gillick competent. As to whether the Court has power to make such declaration is a matter of debate; differing views as to the approach to be taken by the Court have been expressed in a number of reported decisions, most recently by Watts J in Re Kelvin [2017] FamCA 78 and there is pending a Case Stated to the Full Court with respect to this issue.
Although other judges of this Court have made declarations as sought by the applicant in this matter, (for example, Austin J in Re Jacinta [2015] FamCA 1196) I respectfully agree with the views expressed by Watts J in Re Kelvin that the appropriate course once a finding of Gillick competence is made is to dismiss the application. I agree with the following observations of his Honour at paragraph 16 in Re Kelvin where he states:-
…if a court makes a finding and as a result of that finding then by order dismisses the application, the court has made a decree against which an appeal lies. I also acknowledge the Full Court in Re Jamie has not been explicitly clear as to whether, once a finding of Gillick competence has been made, the court should then make an order or declaration pursuant to that finding. Bryant CJ at [139] seems to suggest that once the question of Gillick competence has been established, the court has no further role to play. Finn J at [188] explicitly says that once the court is completely satisfied of the child’s capacity to consent to the treatment, it would be unnecessary for the court to have to authorise the treatment. Strickland J at [192] generally accepts these outcomes and reasons. Although I accept minds may differ, as I read what the Full Court has written in Re Jamie, once the court has made a finding of Gillick competence, the court should make no other decree other than one which dismisses the application.
Accordingly, having found that Daniel is Gillick competent to consent to the stage two treatment, I will dismiss the application. However, in circumstances where the question of the Court’s power to make a declaration as sought by the mother is to be considered by the Full Court, I will grant the mother the right to seek a reinstatement of her application should she wish to press that issue upon the determination of the case stated by the Full Court.
Further, given the sensitive and personal nature of the issues raised in the application I am satisfied that it is appropriate to make orders for confidentiality as sought by the applicant.
The mother also sought orders with respect to the change of Daniel’s name. However, that matter was not pressed at the hearing before me. Accordingly, I will dismiss that part of the application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 March 2017
Associate:
Date: 17 March 2017