Re: Imogen (No. 2)

[2020] FamCA 394

FAMILY COURT OF AUSTRALIA

RE: IMOGEN (NO. 2) [2020] FamCA 394

FAMILY LAW – CHILDREN – Medical Procedures – Where the mother opposes the continuation of the child’s treatment for Gender Dysphoria – Where the mother seeks permission to rely upon expert evidence as to whether the child has Gender Dysphoria or any other mental health condition; opinion regarding the child’s current diagnosis and treatment; opinion as to whether or not the child is Gillick competent and opinion more widely as to whether or not the medical profession is operating on an “informed consent model of care in gender dysphoria” and opinions about alternate treatments for Gender Dysphoria in young people – Leave is granted for the mother to obtain and adduce a report from the expert that she proposes – Where an order is made that the mother and father attend interviews with that expert.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: The mother

RESPONDENT: The father

INTERVENOR: Australian Human Rights Commission

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 15 May 2020

JUDGMENT OF: Watts J

HEARING DATE: 14 May 2020

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

Orders

(Orders 5 and 6 made 14.5.20)

1. Leave granted to the wife on or before 11 June 2020 to file and serve evidence from Dr B expressing opinions on those matters set out in Dr B’s affidavit of 9 April 2020. Reasons are reserved for granting this leave.

2. Both the mother and father are to attend any interview or interviews with Dr B at any reasonable time as arranged by him. It is noted that interviews will take place via video link in light of the current COVID-19 restrictions.

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: Imogen (No. 2) 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 mother

Applicant

And

The father

Respondent

REASONS FOR JUDGMENT

1. On 14 May 2020 I made the following orders:

   5. Leave granted to the wife on or before 11 June 2020 to file and serve evidence from Dr B expressing opinions on those matters set out in Dr B’s affidavit of 9 April 2020. Reasons are reserved for granting this leave.

   6.Both the mother and father are to attend any interview or interviews with Dr B at any reasonable time as arranged by him. It is noted that interviews will take place via video link in light of the current COVID-19 restrictions.

2. I now provide my reasons for granting leave to the mother to rely on evidence from Dr B.

3. By way of interim orders sought in the mother’s Response to Final Orders filed 24 March 2020, she sought that Dr B be appointed as a single expert in this case to provide an opinion in relation to matters set out in her Response.

4. As discussed with the lawyer for the mother, if evidence was to be given by Dr B, it would not be evidence by him as a single expert but rather on the basis that the mother make an oral application that she be granted leave to adduce evidence from Dr B. The mother has made such an application.

5. In support of that application she has filed an affidavit from Dr B on 9 April 2020.

6. The father opposes leave being granted to the mother to rely upon evidence from Dr B and if such an order was made, the father opposes Imogen attending interviews with Dr B.

7. The Independent Children’s Lawyer (“ICL”) did not oppose the order being made granting leave for the mother to adduce evidence from Dr B but opposed any order requiring Imogen to be interviewed by Dr B.

8. The Australian Human Rights Commission did not wish to express any view on the application.

9. Dr B is a psychiatrist who has had clinical experience for over 20 years. He has treated approximately 25 patients with gender dysphoria and has run support groups for people who are de-transitioning. He provides therapy which is long term and aims to help people understand the reasons for their gender distress to assist them to make what he refers to as informed decisions before transitioning.

10. Dr B has written about his opinion of the aetiology of gender dysphoria involving multiple intersecting factors which seems to be different from the opinions of those treating Imogen.

11. Dr B indicates he will provide a report in relation to:

    ·Whether Imogen has gender dysphoria as defined in the DSM-5;

    ·Whether Imogen has any other mental health condition;

    ·His opinion regarding treatment of any condition Imogen has;

    ·Whether Imogen is Gillick competent;

    ·His opinion regarding Dr C and Dr J’s diagnosis and treatment;

    ·His opinion regarding Dr C’s opinion as set out in Dr C’s report that the medical profession is operating on an “informed consent model of care in gender dysphoria” and doctors are proceeding with gender affirming hormone therapy in persons over the age of 16 who express a desire to do so and who are assessed by that medial practitioner as being able to give informed consent to the treatment.

12. In response to order 4 of orders made 27 March 2020, Dr B opines that based on his experience, he says that there is a substantial body of opinion contrary to the opinions given by Dr C concerning the treatment of gender dysphoria in young people and that he can provide the court with evidence based upon his knowledge and expertise regarding:

    a)The issues surrounding the diagnosis of young people with gender dysphoria when there are other complex mental health issues; and

    b)Alternate treatments for gender dysphoria in young people

13. The lawyer for the father argued that the matter was time critical and the prospects of delaying the case for a further month would be detrimental to the child. However in that context it should be noted that Dr C’s original report was prepared at the end of 2019 but not filed until the middle of February 2020. Further, by the consent of all parties, including the father, this matter had been adjourned from 27 March until 14 May 2020. The preparation of Dr B’s report is going to take four weeks and that will not significantly delay the hearing of the case.

14. Dr B has had no previous connection with Imogen and the father but some limited contact with the mother as detailed in his affidavit.

15. The mother is prepared to pay for the costs of Dr B’s report.

16. It is part of the mother’s case that Imogen presents with a number of other mental health issues that have not been properly diagnosed or treated and that Dr C has not explored other mental health issues and their impact upon the current diagnosis.

17. Accordingly having regard to the matters set out in rule 15.52(3) of the Family Law Rules (which include a consideration of those matters set out in rule 15.42), I am satisfied that it is appropriate to grant leave to Dr B to prepare a report and give evidence in this case and I will make an order granting leave.

18. I have reserved as a separate issue the question of whether or not an order is made for Imogen to attend interviews with Dr B for the purposes of the preparation of his report.

19. Both the mother and father are to attend any interview or interviews with Dr B at any reasonable time as arranged by him.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 May 2020.

Associate: 

Date:  15 May 2020