Re: Darcey
[2015] FamCA 409
•2 June 2015
FAMILY COURT OF AUSTRALIA
| RE: DARCEY | [2015] FamCA 409 |
| FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicant is the parent of a child with Gender Dysphoria – Where the applicant seeks a declaration that the child is competent to authorise his own treatment for Stage 2 administration of oestrogen therapy – Where the child is 16 years of age – Where the child was born male and has been identifying as female for some time including at school – Where the child’s parents separated shortly after the child’s birth and the mother and child have had no contact with the father for some time – Where appropriate to proceed on an undefended basis – Consideration of whether the child is Gillick competent – Where the Independent Children’s Lawyer and the child’s treating doctors support the application – Declaration made as to the child’s Gillick competence to Stage 2 oestrogen treatment. FAMILY LAW – CHILDREN – CHANGE OF NAME – Where the applicant seeks an order to change the registered name of the child – Where the child has been informally known by that name at school – Order made permitting the change of the child’s name. |
| Family Law Act 1975 (Cth) ss 65D, 68B |
| Flanagan & Handcock [2000] FamCA 150 |
| APPLICANT: | The Mother |
| RESPONDENT: | The Father |
| INDEPENDENT CHILDREN’S LAWYER |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 2 June 2015 |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 1 June 2015 |
REPRESENTATION
By Court Order the names of counsel and solicitors have been suppressed
Orders
That the Court declares that the child Darcey born on … 1999 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.
That the full name of the child Darcey, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any expert witness, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child Darcey shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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 the applicant mother 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.
The Mother … be authorised to apply to the Registrar of Births, Deaths and Marriages … that the child registered as … born … 1999 be now registered as Darcey …
Pursuant to the relevant State Act, the Registrar register the child’s name in the form specified in Order 5 herein.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages ...
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Darcey 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 the File Number is suppressed
| The Mother |
Applicant
And
| The Father |
Respondent
REASONS FOR JUDGMENT
The applicant is the mother of the child Darcey born in 1999.
The other party to these proceedings was the relevant Government agency. On the day of hearing the agency sought and was granted leave to be removed as a party.
The child’s father is not a party to these proceedings as his circumstances are not known and he has had no communication with the mother or the child since 2013 and very little contact with the mother and child since separation in 1999.
In all circumstances it is appropriate especially in the context of this application as set out below that the matter proceed on an undefended basis in the absence of the father.
The mother in her application filed on 13 April 2015 seeks orders in relation to the child that in summary relevantly are as follows:
a)A declaration that the child is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5;
b)That the Court approve the child’s proposed change of name to Darcey …;
c)That there be a non-publication order in relation to all aspects of these proceedings and that only an anonymised reasons for judgment and orders shall be released by the Court to non-parties without further contrary order of a judge; and
d)That no person be permitted to search the Court file in this matter without first obtaining the leave of a judge.
Discussion
As said by Rees J in Re: Leo [2015] FamCA 50:
The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re: Jamie (2013) FLC 93-547 (“Re: Jamie”) by the Chief Justice and Finn and Strickland JJ. In separate judgments their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention the issue for the Court is to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112 (“Gillick competent”). Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent then the authority of the Court is not required to authorise the treatment.
(and see Re: Colin (Gender Dysphoria) [2014] FamCA 449)
In Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547, the Full Court was dealing with both Stage 1 and Stage 2 treatment. At paragraph 140 of her Honour’s judgment, the Chief Justice said:
I summarise the decision that I have reached in relation to these matters:
a. Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.
b. If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.
c. In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.
d. If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.
e. The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.
f. If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.
Finn J said at paragraph 188:
If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.
Strickland J said at paragraphs 195-196:
195. In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.
196. Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.
In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, it was said by Lord Scarman at 88-90:
In the light of the foregoing 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. Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent’s consent.
The issue therefore in relation to Darcey is whether or not he is Gillick competent to consent to both oestrogen therapy and the proposed surgical procedure.
The mother relied upon her affidavit filed on 15 April 2015, the affidavit of Dr A, a paediatric endocrinologist, and an affidavit by Dr K, consultant psychiatrist with sub-specialist qualifications in child and adolescent psychiatry and a subspecialty interest in gender dysphoria.
Background
The child Darcey was born in 1999. The child was the sixth child of the relationship between the mother and the father.
The mother and father were married in 1983 and in 1999 the father moved out of the family home permanently. The parties were divorced in 2000. There are no parenting orders in relation to the child.
The mother subsequently remarried but that marriage ended in divorce in 2003. There is one child of the mother’s second marriage born in 2002.
Subsequent to the divorce of the mother and the father, the father has had extremely limited contact with the six children of that marriage. The mother’s last contact with the father was in 2013 and she has had no contact with him since.
The mother is unaware as to the father’s circumstances although believes that he may still be living in this city.
An older child of the parties, born in 1986, experienced a gender dysphoria and transitioned from male to female in 2013.
Darcey resides with the mother, two older siblings aged 18 and 20 and the younger half-brother now aged 12. The child attends a public high school that is in close proximity to the family home.
The child has to the mother expressed a wish to get sex reassignment surgery (vaginoplasty) once older. Initially the child will commence oestrogen therapy.
The child expresses the wish for a change of name and indeed is known as Darcey at school and in everyday life. The child has been wearing girls’ clothes to school every day and the school is supportive of the child.
The child commenced to see Professor A, a paediatric endocrinologist, in late 2013 and in early 2014 commenced taking puberty suppressing medication. Darcey receives the medication every ten weeks. Prior to commencing this medication Darcey had suffered depression and missed a significant period of schooling. The child’s general health circumstances have improved significantly since the commencement of the medication.
Professor A reports:
At the initial consultation, [Darcey] indicated a very strong desire and need to live as a female and to have suppression of her male puberty hormones. Further, she indicated that she would like to commence female hormone treatment as soon as possible and also that she had plans for feminizing surgery as an adult.
[Darcey] had an independent assessment by a psychiatrist (Dr [Z]) and psychologist (Dr [C]) from X Hospital who are both agreed that she met the DSM-V the criteria for the diagnosis of gender dysphoria. I was satisfied at the time that [Darcey] had a very good understanding of all of the issues and had no doubts about her desired course of action to commence phase 1 therapy (pubertal suppression). Accordingly she commenced this in February 2014…
In regular meetings I have had with the [Darcey] and her mother, she has consistently and firmly expressed the view that she wishes to continue living in a female role and pursue phase 2 therapy with oestrogen therapy. I am of the opinion that the gender dysphoria remains firmly entrenched and that [Darcey] has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. She understands that some aspects of oestrogen therapy could be irreversible or only partially reversible… She also understands that she could stop pubertal suppression at any time and not proceed with oestrogen therapy and return to a male gender role. She has strongly indicated that she does not wish to do that…
… from an endocrinology perspective I feel that [Darcey] is sufficiently informed and capable of making this decision and I see no reason for phase 2 therapy not to proceed. Given all of the above information, I believe that proceeding with phase 2 therapy is in [Darcey’s] best interests.
In October 2013 the child commenced seeing a consultant psychiatrist Dr K. The child conferred regularly with Dr K, with the most recent consultation being on 11 March 2015.
Dr K reports:
[Darcey’s] history and clinical presentation, along with the corroborative history provided by [Darcey’s] mother, fulfils the DSM-5 criteria for Gender Dysphoria in Adolescents and Adults…
Dr K provides a detailed supporting analysis of the relevant criteria as they apply to Darcey.
Dr K then reports:
[Darcey] was able to comprehend and retain both existing and new information regarding the proposed treatment. He was clearly able to integrate a great deal of knowledge about the treatment, modified his existing knowledge when new information was presented for his consideration, and incorporated both existing and new information in a rational discussion concerning the proposed treatment.
[Darcey] demonstrated that he was able to provide a full explanation, in terms appropriate to his level of maturity and education, of the nature of Phase 2 treatment. [Darcey] understood that he would be taking oral medication in the form of female sex hormones (primarily or exclusively oestrogen) for many years and possibly for the rest of his life. He will be taking an anti-androgen medication while his body has the capacity to produce its own testosterone in physiologically significant amounts. He understood that this treatment needs to be accompanied by regular medical monitoring, supervision and occasional blood tests to check the hormonal levels.
[Darcey] demonstrated that he is able to describe the advantages of Phase 2 treatment. He told me that the oestrogen will cause body fat redistribution to promote development of a female body shape, an unpredictable amount of breast development, change in hair texture and quantity and perhaps some change in skeletal development such as pelvic shape although this may not occur due to his existing level of skeletal maturation. [Darcey] recounted the advantages of anti-androgen treatment as being the prevention of facial hair growth, inhibition of muscle development and reduction of sweating. [Darcey] saw the major advantage of the above physical changes as enabling a greater degree of psychological comfort as his body comes into line with his sense of being female in gender, and a consequent reduction in gender dysphoria. [Darcey] anticipates that this will significantly enhance his personal happiness, enable a greater enjoyment of life and an increased capacity for social relationships.
[Darcey] was able to describe the disadvantages of Phase 2 treatment, including the inconvenience of taking medication on a daily basis (which he perceives as very minor), the possibility of inducing mood swings, an increased likelihood of blood clots and an increased risk of certain cancers. [Darcey] told me that he had considered the eventuality of future infertility and has at this point decided against sperm storage.
[Darcey] was able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when he should proceed with Phase 2 treatment. He expressed a clear desire to commence this treatment as soon as possible.
[Darcey] openly acknowledged and was able to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that he had before the commencement of treatment, and that further support and treatment in these regards may be of benefit to him.
It is my opinion that, past anxiety and depressive conditions and the father’s lack of involvement notwithstanding, [Darcey] is currently free from temporary factors that could impair his judgement in providing consent to the procedure.
The Court is satisfied on the basis of the evidence referred to in these reasons for judgment that the child Darcey is competent to consent to the treatment that is proposed.
Change of name
The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan & Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a section 68B injunction or a section 65D parenting order, either directly or indirectly the paramountcy principle of the child’s best interests is applicable.
There are numerous decisions that pre-date the 1995 Family Law Act 1975 amendments relating to a child's surname.
In Foocks v McCarthy [1993] FamCA 117; (1994) FLC 92-450 Warnick J held:
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
The factors frequently considered in determining whether there should be any change to a child's name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d)The effect of frequent or random changes of name;
e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
f)The degree of identification that the child or children have with their non-custodial parent; and
g)The degree of identification which the child or children have with the parent with whom they live.
The child Darcey has no relationship with his father. The father has been absent from the child’s life mostly since separation that occurred at about the time of the child’s birth in 1999. There has been no communication or contact with the father now for two years. Apart from the belief that the father is somewhere in this city, his circumstances are not known.
The child has expressed a wish for a change of name as referred to above and that change of name is supported by the Independent Children’s Lawyer.
The child is now 16 years of age and in less than two years will be able to procure a change of name as an adult at the age of 18.
In the context of the factual matrix set out above the Court is satisfied that in all of the circumstances, it is appropriate and in the best interests of the child that orders be made facilitating a change of names as sought.
Otherwise it is appropriate that orders be made for the anonymisation of these proceedings in the best interest of the child.
Orders will be made accordingly.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 June 2015.
Associate:
Date: 2 June 2015
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