Re Jacinta

[2015] FamCA 1196

FAMILY COURT OF AUSTRALIA

RE: JACINTA [2015] FamCA 1196

FAMILY LAW – CHILDREN – Where a child’s mother sought a declaration that the child was competent to consent to Phase 2 treatment for Gender Dysphoria – Where the child’s father failed to engage with the proceedings – Where the Court is satisfied the child is sufficiently competent to understand the nature and express a decision about the receipt of Phase 2 treatment – Where the child’s best interests would be advanced by her receipt of Phase 2 treatment – Discussion of the form the orders should take – Where it is appropriate to make a declaratory order – Declared the child is able to consent to Phase 2 treatment – Order made suppressing the identities of the parties and the publication of any information that would identify them.

Family Law Act 1975 (Cth), ss 64B, 67ZC, 121

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary Department of Health and Community Services v JWB (1992) 175 CLR 218

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 22 December 2015

JUDGMENT OF: Austin J

HEARING DATE: 22 December 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

1. The Court declares that Jacinta (formerly known as …) born on … 1999 (“the child”), is competent to consent to the administration to her of Phase 2 treatment for the condition known as “Gender Dysphoria”.

2. So as to protect the child:

a.The child’s full name, the names of her family members and her medical practitioners, this Court’s file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

b.Only anonymized Reasons for Judgment and Orders shall be released by the Court to non-parties without contrary order of a Judge.

c.No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

1. 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 Applicant Mother and the child have leave to publish to the child’s treating practitioners a copy of these Orders and a copy of the Reasons for such Orders, which are not anonymized pursuant to Order 2 hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Jacinta 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

And

The Father

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The child who is the subject of these proceedings was born in 1999 and is now nearly 17 years of age. 

2. On 13 November 2015, the child’s mother commenced these proceedings, seeking declaratory relief in the following terms:

   The Court declares that [the child] is competent to consent to the administration to her of Phase 2 treatment for the condition known as “Gender Dysphoria”.

3. The child and the mother have been estranged from the child’s father for some years, but the father was named as the respondent to these proceedings.  Despite his service with the mother’s process (Exhibit A), he elected not to participate in the proceedings.  From the tenor of his correspondence with the mother over the issue (Exhibit C), it may be presumed he opposed, or at least did not consent to, the relief sought.

4. Out of abundant caution that the administration of Phase 2 treatment for Gender Dysphoria might fall within the definition of “medical procedure” for the purposes of Division 4.2.3 of the Family Law Rules, the mother served her process on the relevant Government Department (“the Department”) (Exhibit B), but by a letter dated 17 December 2015 (Exhibit D) the Secretary of the Department notified of his intention not to intervene in the proceedings.

5. There is no doubt the child has been competently diagnosed with Gender Dysphoria and the window of opportunity for medical intervention to correct the disorder is closing.

Legal Context

1. In Re: Jamie (2013) FLC 93-547, the Full Court examined the limits of parental responsibility as it pertains to the grant of consent for the performance of invasive and irreversible medical procedures on children and the extent to which children have capacity to dictate the treatment they receive. In respect of treatment for the disorder of Gender Dysphoria, the Full Court drew a clear distinction between the nature of Phase 1 and Phase 2 treatment. In this case, the child has already received Phase 1 treatment and so the application relates only to the prospective administration of Phase 2 treatment.

2. The Full Court held that the threshold question for the administration of Phase 2 treatment is whether the child has the competence to authorise such treatment on his or her own behalf (at [140(c)], [140(d)], [188], [195], [196]), and further, the question of the child’s competence is a question for the Court to decide (at [137], [138], [140(e)], [188], [196]).

3. The question of a child’s competence is determined by application of the available evidence to the legal principles established by Gillick v West Norfolk &Wisbech Area Health Authority [1986] AC 112, as endorsed by the High Court of Australia in Secretary Department of Health and Community Services v JWB (1992) 175 CLR 218, more commonly known as Marion’s Case.

The Evidence

1. To prosecute her Application filed on 13 November 2015, the mother relied upon:

   (a)Her affidavit filed on 13 November 2015, which annexed the medical reports of two psychiatrists who have consulted with the child; and

   (b)The affidavit of Associate Professor C, the paediatric endocrinologist treating the child.

2. The child is genetically male but wishes to identify as female.  Her frustration at adherence to societal norms for infant and adolescent males has caused her sufferance of depression and suicidal ideation.

3. The child was referred by her general practitioner to Dr L, a child psychiatrist. In February 2014, Dr L reported back to the general practitioner in the following terms:

   [The child] has a limited understanding and superficial awareness of what hormonal treatment is available for the treatment of Gender Dysphoria.  Once she turns 16, [the child] may be able to consent without informing her father but will need a review by myself prior to commencing cross sex hormones.

4. That was nearly two years ago, when the child was barely 15 years of age.

5. In January 2015, the child was referred to Associate Professor C by Dr L. Associate Professor C was satisfied with the child’s diagnosis with “gender identity dysphoria” by both Dr L and another psychologist.  Associate Professor C reports that the child is now at the stage where a decision is required about the commencement of her Phase 2 treatment for Gender Dysphoria.

6. Since Dr L closed his practice, the child’s psychiatric care was passed to Dr K, another consultant psychiatrist who has additional qualifications in child and adolescent psychiatry and a sub-specialty interest in gender dysphoria.  Dr K met with the child in April 2015 and June 2015, on the latter occasion for the express purpose of determining the child’s “Gillick competence”. 

7. Dr K confirmed the child’s diagnosis with gender dysphoria and also diagnosed the child to be suffering from major depressive disorder, though that condition is presently in remission. At least by implication, the child’s depressive condition is the resultant effect of her as yet unresolved gender dysphoria, but her depression does not cloud her judgment about the further treatment she requires for the gender dysphoria.

8. With regard to the child’s competence, Dr K reported:

   5.1 [The child] demonstrated a capacity to comprehend and retain both existing and new information regarding the proposed treatment.  He was able to integrate 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.

   5.2 [The child] was able to provide a full explanation, in terms appropriate to his level of maturity and education, of the nature of Phase 2 treatment.  [The child] 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 knows that he will also be taking an anti-androgen agent while his body retains the capacity to produce its own testosterone in physiologically significant amounts.  He understood that his treatment needs to be accompanied by regular medical monitoring and supervision, including occasion blood tests to check the hormone levels.  He understood that the changes would be gradual and cumulative over months to years.

   …

   5.6 [The child] 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 being more prone to depression and anxiety, infertility, weight gain an increased likelihood of blood clots and perhaps an increased risk of certain cancers.

   5.7 ... He expressed a clear decision to commence this treatment as soon as possible.

   …

   5.9 It is my opinion that [the child] is free, to the greatest extent possible from temporary factors that could impair his judgment in providing consent to the procedure.

9. I am satisfied on the available evidence that the child is:

   (a)Sufficiently competent to understand the nature of the Phase 2 treatment, including its invasive and irreversible nature;

   (b)Sufficiently competent to make her own decision about her receipt of Phase 2 treatment; and

   (c)Able to clearly express her decision to the mother and her treating specialists.

Form of Orders

1. In Re: Jamie, the Full Court unequivocally said that once a child was determined by the Court to be “Gillick competent”, the Court has no further role to play – at least in the absence of any controversy over the child’s future treatment as between the child, those persons holding parental responsibility for the child, and the child’s treating medical practitioners (at [129], [139], [140(d)], [188], [196]).

2. Some controversy in this case may be imputed from the father’s correspondence to the mother and his failure to engage in the proceedings and offer his support for the relief sought.  However, there is unanimity between the child, the mother, and the child’s treating medical practitioners.  If the father cannot muster the enthusiasm to engage with the proceedings and plainly articulate both his opposition to the child’s receipt of Phase 2 treatment and the reasons for his opposition, little weight should repose in his imputed opposition.  For all the other interested parties may know, the father might have changed his mind since he wrote to the mother expressing his “misgivings” about the treatment. At the very least, his correspondence evinced his vacillation between consent to, and refusal of, permission for the child’s proposed Phase 2 treatment.

3. In any event, even if the father’s failure to engage in the litigation should be taken to imply his refusal to consent to the child’s receipt of Phase 2 treatment, the decision about whether the child should nonetheless receive the treatment is reserved to the Court.  In making that assessment, the paramount consideration is the child’s best interests and significant weight must be accorded to the views of the child, given her age and maturity (Re: Jamie at [140(f)], [188]). In this case, the contents of the medical reports adduced in evidence prove that the child’s best interests would be advanced by her receipt of Phase 2 treatment.

4. Given the child’s competence to determine for herself whether she receives Phase 2 treatment, the question arises as to the nature of the order the Court should make, if at all.

5. In Re: Jamie, the subject child’s parents, who were the appellants, sought orders in their Amended Notice of Appeal in the nature of declarations to the effect that (at [166]):

   (a)The treatment for Gender Dysphoria is not a special medical procedure which attracts the Family Court’s jurisdiction under s 67ZC of the Family Law Act 1975 (Cth) (“the Act”); and

   (b)They do not require permission from the Court to authorise the treatment they were advised by medical practitioners to administer to the child.

6. Justice Finn (at [190]) said of that proposed declaratory relief:

   In my view, it would not be in accord with the reasons of this court, or indeed within any power contained in the Act, for it to make the declaration sought by the parents in their amended notice of appeal. Nor would the order which they seek in the alternative to the declaration be in accord with the reasons of any member of this court.

7. In my view, that should not be interpreted to mean no declaratory relief of any sort relevantly falls within the power invested in the Court by the Act. Rather, her Honour should be regarded as commenting that the specific declaratory relief sought by the appellants in that case was inappropriate. It should be remembered that the orders of the trial judge that were the subject of appeal to the Full Court in Re: Jamie concerned only stage 1 treatment for Gender Dysphoria, the decisions about which fall within the ordinary exercise of parental responsibility for a child and need no declaratory relief from the Court (Re: Jamie at [107], [108], [140(a)]).

8. Section 67ZC of the Act is one head of power under which disputes of this type are determined if the need arises (Re: Jamie at [140(b)]). Having found a child is “Gillick competent” to consent to Phase 2 treatment for Gender Dysphoria, the terms of s 67ZC of the Act are broad enough to permit the Court to declare that to be so. The alternatives to not granting such declaratory relief are either unpalatable or wrong.

9. It would be absurd for the Court to make no orders at all.  The Full Court reluctantly decided to force parties to petition the Court for decisions relating to Phase 2 treatment because of its importance to the child’s future (at [137], [138]). If, having positively determined the child’s “Gillick competence”, the Court then ended the proceedings without making any orders at all the child would be left to approach his or her doctors without a clear answer.  The doctors would need to rummage through the Court’s reasons (putting to one side the identification problems caused by pseudonyms and anonymisation of the Court’s reasons) to determine whether or not the Court had decided the child did have sufficient competence to instruct them to administer Phase 2 treatment. Doctors will understandably not administer treatment unless informed and valid consent is given to them for such treatment by or on behalf of the patient. Declaratory orders issued by the Court solve that problem.

10. As an alternative to an order under s 67ZC of the Act declaring the child’s competence to consent to his or her own treatment, the Court could conceivably make an order under s 64B of the Act allocating parental responsibility for the Gillick competent child to the child him or herself, enabling the child to make his or her own decisions about the receipt of Phase 2 treatment. However, making a parenting order of that sort would infringe the direction of the Full Court in Re: Jamie about the Court having no role to play once the child is found to be Gillick competent. The Court would then, indeed, be playing a role by making orders meddling in the allocation of parental responsibility for a child. 

11. In my view, it is appropriate in the circumstances of this case to make the declaratory order sought by the mother. For those reasons, I make the following orders.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 December 2015.

Associate: 

Date:  27 January 2016