Re: Hudson

[2017] FamCA 938

FAMILY COURT OF AUSTRALIA

RE: HUDSON [2017] FamCA 938

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a 16 year old child who was born as a natal female and identifies as a male – Where the child is not Gillick competent – Where the parents seek a Court order authorising them to consent to the child undergoing the second phase of hormonal treatment – Where the second phase of the treatment carries significant risks and has irreversible effects – Where the parents and medical experts agree that it is in the best interests of the child to undergo the second phase of treatment – Application granted.

Family Law Act 1975 (Cth)

Gillick v West Norfolk A.H.A [1986] A.C. 112
Re: Jamie (2013) FLC 93-547

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT: The Mother

SECOND APPLICANT: The Father

FILE NUMBER:

By Court Order File Number is supressed

DATE DELIVERED: 14 November 2017

JUDGMENT OF: Forrest J

HEARING DATE: 14 November 2017

REPRESENTATION

By Court Order the names of Solicitors are supressed

Orders

IT IS ORDERED

1. That the Court be closed today for the hearing and determination of these proceedings.

2. That pursuant to s 100B of the Family Law Act 1975 leave is granted for the child, Hudson to swear an affidavit in these proceedings.

3. That pursuant to s 100B(2) of the Family Law Act 1975 leave is granted for the child, Hudson to be present in Courtroom as the application made by his parents is heard and determined.

4. That leave is granted to the applicants to file and read an affidavit of Hudson sworn 14 November 2017.

IT IS FURTHER ORDERED

1. That the Father or the Mother shall be authorised to consent to treatment on behalf of their child, Hudson under the guidance of Hudson’s treating medical practitioner(s), for the administration of testosterone in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.

2. That the full name of Hudson, his family members, his hospital, his treating medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Hudson’s mother and father and brother, any other fact or matter which may identify Hudson shall not be published in any way save as permitted by this order or further order of this Court.

3. That 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 realised by the Court to non-parties without further contrary order of a judge.

4. That Hudson be at liberty to identify himself as the subject of this application and as the child the subject of this decision, if he may choose.

5. That 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 mother and father and Hudson have leave to publish to Hudson’s treating health practitioners (including by inserting a copy of the Orders on Hudson’s medical record) a copy of these Orders which are not anonymised.

6. That each of the parties to these proceedings and Hudson shall be at liberty to obtain a full copy of the Orders and any reasons for judgment published with all of the identifying details.

7. 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: Hudson 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

The Father

First Applicant

And

The Mother

Second Applicant

REASONS FOR JUDGMENT

1. Hudson was born in 2001 and is now 16 years of age.  He identifies as a young man, although born a natal female.  Hudson’s parents jointly make application to this Court pursuant to the Court’s welfare jurisdiction for Orders authorising them to consent to Hudson’s hormonal treatment in such dose, in such manner and with such frequency as determined in consultation with Hudson’s treating medical practitioners so as to induce male puberty so that Hudson can continue to develop into adult manhood in the way that he aspires to. 

2. The application is supported by affidavit evidence from each of Hudson’s parents, affidavit evidence from medical experts, such as Professor M, Hudson’s treating paediatric endocrinologist, Dr T, Hudson’s treating child and adolescent psychiatrist, and Dr F, a paediatric psychiatrist, who has also assessed and diagnosed Hudson with Gender Dysphoria.  

Some Relevant Background

1. Hudson’s parents were married in 1998 and he has an older brother I understand, whose name is D, aged 18.

2. Hudson was given the name “B” at birth by his parents. His parents say that Hudson seemed to be a typical girl growing up, but began to experience anxiety and depression when puberty started, when he was about 11 or 12. His parents then sought professional assistance for him from a mental health care provider named Headspace.

3. From December 2014, Hudson developed a range of eating disordered behaviours, included vomiting and binging, restricting his food intake, occasionally purging and increasing his exercise. He also reported to Dr F some cognitive distortions in relation to his body image and weight.

4. Hudson reported to Dr F that he first read about gender dysphoria in April 2015.  It became clear to him that he had been experiencing similar feelings to people with gender dysphoria. He recalled writing in his journal in April 2015, the words ‘I wish I was a boy.’  

5. From April to October 2015, Hudson experienced increasing gender dysphoria, though did not disclose this to his parents. He ‘came out’ as bisexual to his parents, although in retrospect puts this down to confusion about gender identity and sexuality. He continued to experience low mood, mood swings, and he also engaged in deliberate self-harming behaviours.

6. Hudson’s interest in wearing male clothes in public increased, and he developed an interest in transgender internet sites. He spoke to his friends about his emerging male gender identity.

7. Hudson ‘came out’ as transgender to his parents in October 2015. He told his parents that he felt like he was a boy in a girl’s body. This came as a surprise to his parents, who depose to having no idea at that point that his depression was gender identity related.

8. Hudson’s parents took him to a general practitioner and a referral to the P Clinic was made for Hudson in November 2015. However due to the Clinic’s lengthy delays, Hudson was not able to be seen there until around July 2016.

9. At the end of the 2015 academic year, Hudson found it very difficult to wear the girl’s uniform at his school, which was at that time Suburb J State School. He decided that he wanted to change his name and gender at school. His parents negotiated with the school so that Hudson was allowed to wear the sports uniform for the remainder of the school year.

10. In December 2015, Hudson began wearing breast binders to help him deal with his developing breasts. He has continued to bind his breasts since that time.

11. Hudson changed schools at the commencement of 2016, as he had been accepted into a new school. He enrolled and dressed as a male, and was known as Hudson.

12. Hudson believed that his classmates recognised him as a male, and he denied being bullied there.  However, he only had few friends and developed social anxiety about attending school. Furthermore, he struggled with the science and maths courses at the new school, and in addition it was a three hour return commute from his house to that school.

13. As such, Hudson decided to return to the Suburb J State School in Term 2, 2016. He wore the male uniform, with support from the school. However, Hudson found it somewhat difficult still to readjust back to his old school, particularly as he believed his friends still saw him as female, and referred to him on occasion as “B.”

14. On 20 July 2016, Hudson commenced reversible hormone treatment to block female puberty. This is described as Phase 1 of the treatment of people born as natal females who identify as males. Its effects include the cessation of menstruation.

15. Hudson has reported a consistent male gender identity over the last 12 months. His social anxiety has decreased and he has gained part time employment. Hudson now feels well supported by his school. He lives and is treated as a male.

16. Hudson’s parents both say that they have noticed a clear improvement in Hudson’s mood since the commencement of Stage 1 treatment, and since his social transition.

17. Professor M has determined that there is no endocrine or genetic abnormality which may explain Hudson’s gender dysphoria. Dr F reports finding “no evidence of any cultural or personal advantage for this cross-gender identification.” He reports that Hudson expresses a strong drive to be a male, and has struggled with a persistent discomfort with his birth gender.

18. Hudson has now been receiving pubertal suppression treatment for over a year and, according to Clinical Practice Guidelines put into evidence attached to Professor M’s affidavit, is eligible to commence the next phase of the treatment which is intramuscular injections of testosterone every 2 weeks, increasing in dosage at six monthly intervals over a period of time. Pubertal suppression continues whilst the second phase of the treatment is being administered. The intramuscular injections are a lifelong requirement with this treatment.

19. Significantly, treatment with intramuscular testosterone induces irreversible physical changes. Those include the development of increased muscle mass and a reduction in fat mass, increased facial hair and acne, probable complete cessation of menses, deepening of the voice, temporary or permanent decreased fertility, and enlargement of the clitoris. It can also lead to male pattern baldness.

20. The treatment carries with it increased risk of adverse outcomes such as breast or uterine cancer, elevated red blood cell count, stroke and heart attack. Professor M also says there is a “moderate to high risk of severe liver dysfunction”. She goes on to say that the risks associated with treatment cannot be reduced and very careful monitoring is essential.

21. Dr F also points out that treatment with testosterone is a known cause of mood swings and low mood and increases the risk of agitation and most particularly aggression. However, he says that these risks can be reduced through ongoing psycho-education and psychological support and therapy, which is what Hudson is currently receiving.

22. The doctors say the proposed treatment is recommended because it is the only treatment for natal females who identify as male and want to live as males. Unsurprisingly, the doctors say that any surgical intervention should only be organised with Hudson’s consent, after he turns 18 years of age. However, they report that Hudson strongly wishes to commence the second phase of treatment now and that it would be in Hudson’s best interests to do so.

23. Dr F considers it unlikely that Hudson will desist from his strong identification as a male and his desire to access the treatment. Particularly, the doctor notes the improvement in Hudson’s mental health since he began living and being accepted as a male, and he expresses the view that allowing the treatment now will further reduce the risk of Hudson experiencing future mental health problems such as low mood, anxiety, suicidal ideation and self-harming behaviours and experiencing social isolation that can lead to such mental health problems.  Dr T is also of the opinion that it is highly unlikely that Hudson will change his mind in relation to his expressed gender identity, and that further delay will only lead to increased anxiety and depression.

24. Significantly, Hudson’s treating doctors express the view that if Hudson does not access the treatment regulated through his treating doctors, there is a risk that he could acquire hormone treatment illicitly and self-administer, which would not be regulated  by medical specialists and which would consequently pose a significant danger to his health.

25. Hudson has, I am pleased to note, the complete support of his parents and they are fully aware of the irreversible effects and the adverse risks of the treatment. His parents consider that the associated risks will be far outweighed by the long-term benefits that they believe Hudson will experience by undergoing the proposed treatment. 

Why is this Family in this Court?

1. Well may Hudson and his parents ask, ‘why is this matter in the Family Court?’. Of course, if Hudson was already 18 years of age he could determine what treatment he wanted and he could consent to it himself. If Hudson was “Gillick-competent”, even at the age of 16, he could give informed consent to the proposed medical treatment.

2. The expression “Gillick-competent” is used to describe the status of a child who has reached “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. This expression first emerged and got its name from an English appeal court’s decision in Gillick v West Norfolk A.H.A [1986] AC 112 and became part of the law of Australia when the High Court of this country recognised it as such in Marion’s Case.[1]

   [1]See the High Court’s decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

3. Absent a finding of a child being Gillick-competent, usually parents can provide authorised consent to medical treatment for their child. However, the authorisation of some forms of medical treatment or medical procedures for children has been determined to fall outside the normal bounds of parental decision making responsibility and, thus, require authorisation by this Court exercising its welfare jurisdiction.  The High Court found as such in Marion’s Case.  Hormonal treatment in cross-gender identification cases has been held to be such treatment because of its irreversible effects.  The Full Court of this Court found as such in a case called Re Jamie.[2]  

   [2] (2013) FLC 93-547

4. However, I hasten to note that a Full Bench of the Full Court of this court is currently reserved in another case called Re Kelvin, an appeal which that court heard in Sydney some weeks ago in which the correctness of the Full Court’s previous decision in Re Jamie is under review.  It may be, depending on the decision, that these applications will not have to be made to this court again after that decision is handed down, although I do not wish to pre-empt the decision of the honourable five judges of the court who heard the appeal.

5. The medical experts in this case, particularly Dr T and Dr F, express the opinion that Hudson is not “Gillick-competent”. Their opinions are of the effect that whilst Hudson has a level of understanding about the issues and has his own views about the treatment, they are not respectfully satisfied that he has a full understanding of the long term and potentially life threatening medical implications of irreversible hormone treatment.  Of course, I hasten to add here that these opinions expressed by Dr T and Dr F are not to be taken as a negative reflection on Hudson.  Dr F cites Hudson’s age as the reason particularly for Hudson not being able to fully understand these concepts. Hudson being 16 is still at an age where both body and mind are growing and maturing towards ultimate maturity.

6. As I accept the opinions of the medical experts that Hudson is not “Gillick-competent”, this Court’s Order for Hudson’s parents to be able to authorise the particular proposed treatment is necessary. The Court’s jurisdiction to make such an Order is found in s 67ZC of the Family Law Act and, in deciding whether to make the Order sought, the Court is bound to regard Hudson’s best interests as its paramount consideration.  

My Satisfaction

1. The highly qualified medical experts in this case have each expressed the opinion that the proposed treatment is in Hudson’s best interests.  They say it is because it will have positive consequences for his emotional wellbeing and reduce the risk of him experiencing any more mental health problems. They do not believe that delaying the commencement of treatment until Hudson turns 18 years of age is of any benefit having regard to Hudson’s strong position and the potential negative consequences of any further delay for Hudson. I am quite satisfied that these three doctors are caring, thoughtful, expertly qualified doctors who are working extremely well together and with Hudson and his parents in treating Hudson. That, of course, should continue.

2. Hudson is, thankfully, totally supported by his parents. They, from what I have read, appear to be very sensitive, intelligent, productive people and very caring and loving parents.  They too, are each fully aware of the irreversible effects and adverse risks of the treatment that they seek to be able to have administered to Hudson, but they, as I have said, consider the long-term benefits to Hudson’s emotional well-being to far outweigh the risks, and truly believe the treatment to be in Hudson’s best interests.

3. Finally, Hudson himself, who has come to court today and happily, seemingly, and proudly sits between his two loving parents, has also sworn an affidavit that has been filed and read by his parents in support of their application.   It is clear that this is a loving, strong family unit.  Hudson himself, who is now rapidly approaching adulthood, is strongly committed to the proposed course and wishes to commence it as soon as he can.  I am quite satisfied that Hudson, like every other young person his age, should be given every opportunity possible to achieve his aspirations and I am satisfied that allowing his parents to authorise the proposed treatment, as they seek, is in Hudson’s best interests. That is why I intend to order as I will.

4. I am also satisfied that Hudson’s privacy and the privacy of his family should be respected in this matter and that is why I will also make the Orders that I do in respect of publication in this matter.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 November 2017.

Associate: 

Date:  21 November 2017