Re: Jaden

[2017] FamCA 269

FAMILY COURT OF AUSTRALIA

RE: JADEN [2017] FamCA 269

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Gender Dysphoria – Where the applicants seek a finding that the child is Gillick competent to consent to Stage 2 treatment for Gender Dysphoria – Where the child’s treating doctors opine that the child is not Gillick competent to fully understand the proposed health risks – Where the Court is of the view that the child is Gillick competent and can consent to the proposed treatment – Where the Court is otherwise satisfied that Stage 2 treatment is in the child’s best interests. 

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175
Re Alex (2009) 42 Fam LR 645
Cousins & Harper and Ors [2007] 38 Fam LR 461
Re Darryl [2016] FamCA 720
Director-General, Department of Community Services Re Thomas [2009] NSWSC 217
DJL v Central Authority (2000) 201 CLR 226
Duroux v Martin (1993) FLC 92-432
G v H (1994) FLC 92-504
Gillick v West Norfold and Wisbech A.H.A. [1986] AC 112
Re Harley [2016] FamCA 334
Re Jacinta [2015] FamCA 1196
Re Jamie (2013) FLC 93-547
Re Kaitlin [2017] FamCA 83

Re Kelvin [2017] FamCA 78

Re Lucy (Gender Dysphoria) [2013] FamCA 518
Re: Lucas [2016] FamCA 1129
Re: Mackenzie [2016] FamCA 610
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218
In the marriage of Smith (1979) FLC 90-642

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

APPLICANT: The Director General, The Department

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 2 May 2017

JUDGMENT OF: Carew J

HEARING DATE: 12 April 2017

REPRESENTATION

By Court Order the solicitors’ names have been suppressed

upon the court finding:

That the child Jaden (formerly … or ...) born … 2000 is Gillick competent to make the decision to proceed with stage two treatment.

Order

1. The name of the child Jaden (formerly … or …) born … 2000 and details of his foster parents, his hospital, his medical practitioners, his school, this Court’s file number, the State of Australia in which proceedings were initiated, and any other fact, matter or detail which may identify Jaden shall not be published in any way save as permitted by this order or further order of the Court.

2. Only anonymised reasons for judgment and orders (with cover sheets excluding the registry file number and lawyer names and details as well as the parties’ and witnesses’ real names) shall be released by the Court to non-parties without further contrary order of a judge.

3. That Jaden be at liberty to identify himself as the subject of this application and as the child the subject of this decision if he so chooses.

4. 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, or such other person as may be nominated by the Chief Executive in writing, Jaden’s foster parents and Jaden have leave to publish to Jaden’s treating health practitioners a copy of this order which is not anonymised.

5. Further to paragraphs (3) and (4) above, the applicant and Jaden shall be at liberty to collect by hand a full copy of the order and reasons for judgment published hereunder with all of the identifying details.

6. No person is permitted to search the Court file in this matter without first obtaining the leave of a judge.

7. The application is otherwise dismissed.

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 Jaden 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

FILE NUMBER: By Court Order File Number is suppressed

Director General, The Department

Applicant

In the matter of Jaden

REASONS FOR JUDGMENT

1. This case concerns the child Jaden, born in who presents with female to male Gender Dysphoria.

2. On 12 April 2017 I indicated that I intended making a finding that Jaden was Gillick competent to consent to proposed medical treatment and a consequential order protecting the identity of Jaden. I reserved my reasons and the right to make any other consequential order upon review of the matter.  I now provide my reasons and the only additional order I propose to make is to otherwise dismiss the Application.  

3. Jaden commenced stage one (reversible) hormone treatment IM Depot Lucrin 22.5mg (pubertal suppression) on 15 August 2013 and now wishes to commence stage two (cross hormone, irreversible) treatment (“the treatment”), which will have the effect of inducing male puberty.

4. As the law currently stands, unless Jaden is assessed to be Gillick competent to consent to the treatment himself,[1] the treatment is a medical procedure requiring authorisation from the Court.[2] This is so because the treatment is not proposed in order to ‘therapeutically’ treat a psychiatric condition[3] or to “cure a disease or correct some malfunction” and because of “firstly, the significant risk of making a wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave”.[4] 

   [1] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218, Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175; Re Alex [2009] (2009) 42 Fam LR 645; Re Jamie[2013] FamCAFC 110; (2013) FLC 93-547

   [2] Re Jamie ibid cf Re Kelvin [2017] FamCA 78 where Watts J has stated a case to the Full Court asking inter alia whether the Full Court confirms its decision in Re Jamie

   [3]Marion’s case ibid per Brennan J and Re Jamie ibid per Bryant CJ

   [4] Marion’s case ibid

5. The applicant applies for a declaration that Jaden is Gillick competent to consent to the administration of stage two treatment for the condition known as Gender Dysphoria. In the alternative, an order is sought that the treatment is of a type for which authorisation by this Court is required and that Mr S as the delegate of the Chief Executive of the Department, the legal statutory guardian of Jayden, or such other person as may be nominated by the Chief Executive in writing, is authorised to consent to the administration of the treatment on behalf of Jaden, under the guidance of Jaden’s treating medical practitioners. In addition an order is sought to protect the identity of Jaden.

6. Jaden arranged his own legal representation and counsel appeared as amicus curiae. Jaden urges this Court to find that he is Gillick competent to consent to the treatment or in the alternative authorise the treatment. 

ISSUES

1. The issues identified for determination are twofold:

   a)Is Jaden Gillick competent to make his own decision about whether or not to undergo the treatment; and

   b)If he is not, should the proposed treatment be authorised by the Court.

background

1. Jaden has been in foster care since 2004 and the Chief Executive of the Department has guardianship of Jaden pursuant to an order made on 23 February 2006.

2. This application is brought by Mr S as delegate of the Chief Executive of the Department and has the relevant consent of a child safety officer as required by s 69ZK of the Family Law Act 1975 (Cth) (“the Act”).

3. Ms O and Mr H have been Jaden’s foster parents since he was four years old and they support the application.

4. Since at least age four Jaden has eschewed any female stereotypical identity and has lived life as male since he was eight years old. He is now completing his last year of high school and his current school cohort is unaware he is transgendered. He is anxious about his peers becoming aware and considers this more likely to occur now that his peers have entered puberty. 

5. Jaden has been diagnosed with Gender Dysphoria by child psychiatrist, Dr T. Dr T is a consultant psychiatrist at the Z Hospital and has held that position (including at the former R Hospital) since 2002. He is also the Medical Director for a State children’s health facility. He has seen a number of children present with gender diverse interests and behaviours, some of whom meet the Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition) (“DSM-5”) criteria for a diagnosis of Gender Dysphoria. The diagnostic criteria for Gender Dysphoria is explained by Dr T as follows:

   15. …

   A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by at least two of the following:

   1.A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or, in young adolescents, the anticipated secondary sex characteristics);

   2.A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or, in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics);

   3.A strong desire for the primary and/or secondary sex characteristics of the other gender;

   4.A strong desire to be of the other gender (or some alternative gender difference from one’s assigned gender);

   5.A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender);

   6.A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender);

   B.The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

6. Dr T also states:

   17.[Jaden] now reports strong and persistent cross-gender identification.  He continues to strongly, clearly and consistently identify as a male.

   18.I have found no evidence of any cultural or personal advantage for this cross-gender identification.

   19.[Jaden] has repeatedly reported a strong drive to be male.  He now exclusively wears male clothing, binds his breasts, lives as a male, and has a desire to be treated as a male.  [Jaden] struggles with a persistent discomfort with his female birth gender, and has a deep felt sense of the inappropriateness of living as a female.  He has a preoccupation with getting rid of female secondary sex characteristics.

   20.[Jaden] is pleased to have commenced Lucrin in November 2013, and has remained compliant on treatment for almost three years.

7. Dr J, paediatric endocrinologist, has ruled out any endocrine or genetic abnormality causing Jaden’s gender dysphoria.

8. Both Dr T and Dr J support the application before the Court although each of them have opined that in their view Jaden is not Gillick competent because he does not have the capacity to fully understand the proposed lifelong irreversible and considerable long term health risks associated with cross gender treatment with testosterone. Despite this, both doctors consider the treatment to be in Jaden’s best interests.

9. Dr T opines that young people with Gender Dysphoria suffer from high rates of mental health problems and while such problems may commence for Jaden after he commences stage two treatment he is of the view that if Jaden does not undergo treatment he is likely to experience increased anxiety and emotional distress and risk developing mental health problems such as low mood, social isolation, and possibly even suicidal or self-harming behaviours. He also notes a hypothetical risk that Jaden could obtain his own source of suboptimal hormone treatment which would pose a danger to his health.

10. Dr J notes that the treatment will bring on male puberty and male characteristics which will be irreversible. In her opinion there is also a high long-term risk of serious adverse outcomes including breast or uterine cancer or erythrocytosis (elevated red blood cell count) with a haematocrit greater that 50 per cent with increased stroke and myocardial infarction risk. There is also a moderate to high risk of severe liver dysfunction and temporary or permanent infertility.

legal issues

1. This application raises a number of legal issues which I identify as follows:

   a)Does the Court have jurisdiction to make the order sought by the applicant;

   b)If the Court has jurisdiction what power exists to make a declaration;

   c)How is Gillick competency determined; and

   d)What principles apply to determine whether the treatment should be authorised by the Court.

Jurisdiction

1. Murphy J considered the issue of jurisdiction in a case involving Jaden in 2013[5] when it was still thought necessary for the Court’s authorisation to be provided for stage one treatment. The decision pre-dated the Full Court determination on that issue in Re Jamie[6] (although Murphy J found that authorisation for stage one treatment was not necessary). I respectfully agree with and adopt his Honour’s reasoning in coming to the conclusion that although Jaden is an ex nuptial child and is under the care of a person pursuant to a State child welfare law this Court has jurisdiction to deal with the application.[7] I also respectfully agree that the applicant has standing to bring the application as a ‘person’ concerned with the ‘care welfare and development’ of the child.[8]

   [5] Reported in anonymised form as Re Lucy (Gender Dysphoria) [2013] FamCA 518

   [6] ibid

   [7] See also Re Alex ibid

   [8]Re Lucy ibid and s 65C of the Act and Rule 4.08 of the Family Law Rules 2004

2. The power relied upon to authorise a medical procedure[9] is found in s 67ZC[10] of the Act which provides as follows:

   (1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

[9] As that term is discussed by the High Court in Marion’s case ibid

[10]Marion’s case ibid and Re Jamie ibid

1. Section 67ZC has also been relied upon in numerous cases[11] to make a declaration or a finding that a child is Gillick competent.

   [11]Eg. Re Jacinta [2015] FamCA 1196; Re Harley [2016] FamCA 334; Re Lucas [2016] FamCA 1129; Re Kaitlin [2017] FamCA 83; Re Kelvin [2017] FamCA 78

Power to grant declaratory relief

1. I respectfully disagree with the suggestions that whether or not the Court has power to make a declaration is a “sterile argument”[12] and that it would be “absurd” to make no order at all other than to dismiss an application for authorisation to undertake medical treatment if a finding of Gillick competency is made.[13] I respectfully agree with the observations made by Watts J in Re Kelvin[14] and note that his Honour has stated a case to the Full Court in relation to various questions relevant to applications with which this matter is concerned.

   [12] Per Tree J in Re Mackenzie [2016] FamCA 610 at [6]

   [13] Per Austin J in Re Jacinta [2015] FamCA 1196 at [25], [26]

   [14] Op cit

2. The Federal Court of Australia, a creature of statute like the Family Court of Australia, has a specific provision granting to it the power to grant general declaratory relief. Section 21 of the Federal Court of Australia Act 1976 (Cth) provides:

   (1)The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

   (2)A suit is not open to objection on the ground that a declaratory order only is sought.

3. No such provision is found in the Family Law Act1975 (Cth) although there is provision for the Court to make declarations in relation to:

   a)Validity of a marriage, divorce or annulment of marriage (s 4);

   b)Satisfaction of special circumstances where divorce application filed within two years of marriage (s 44(1C));

   c)Whether a child is or has entered into a de facto relationship (ss 65H and 66V);

   d)An order or injunction that is inconsistent with a family violence order (s 68Q);

   e)Parentage (s 69VA);

   f)Existing property rights (ss 78 and 90SL);

   g)Existence of a de facto relationship (s 90RD);

   h)Eligible agreed matters (s 90UE);

   i)Financial agreements where there is an enforcement application (ss 90G and 90UJ).

4. The power of this Court to grant declaratory relief was considered by Coleman J in Cousins & Harper and Ors[15] where his Honour observed:

   22. Historically courts exercising equitable jurisdiction declined to entertain applications seeking “mere declaratory judgments” (Guaranty Trust Co of New York v Hannay & Co (1915) 2 KB 536). Only by statute in 1880 did the Supreme Court of New South Wales acquire the power to grant “a merely declaratory decree” in the exercise of its equitable jurisdiction.

   23. Notwithstanding that statutory provision, and the subsequent Equity Act1901, the Supreme Court placed a restrictive interpretation on those enabling provisions, consistently ruling that the Court was without power to make a declaration in circumstances where no consequential relief was sought or could be granted (see J C Williamson Ltd v Durno Ltd(1915) 15 SR (NSW) 442).

   24. The Equity Court’s persistence in limiting its powers to make declaratory orders or decrees continued after the passing of the Administration of Justice Act1924 which reiterated (section 18) that no suit was open to objection on the ground “that a merely declaratory order is sought thereby”. The Court was provided by statute with the power to make “binding declarations of right whether any consequential relief is or could be claimed or not”.

   25. As decisions such as Tooth & Co Ltd v Coombes(1925) 42 WN (NSW) 93 confirm, the Court’s resistance to granting “merely declaratory” decrees continued. In David Jones Ltd v Leventhal[1927] HCA 53; (1927) 40 CLR 357, the High Court adopted a similarly restrictive view of the power to grant merely declaratory decrees, the consequence of which in that case, involving a dispute between the landlord and a tenant as to the obligation to pay certain taxes, was to leave the parties to either resolve their differences by negotiation or, in order to attract the jurisdiction of a Court to resolve their dispute, await one party or the other committing a breach of contract resulting in a damages action in the course of determining which of the legal rights and obligations of the parties under the lease would be declared. In Langman v Handover[1929] HCA 42; (1929) 43 CLR 334 the High Court adopted a similarly constrained view of the power to grant merely  declaratory relief.

   26. In 1965 the Equity Act was amended to confer a declaratory jurisdiction on the Supreme Court of New South Wales. Notwithstanding the undoubted ability to exercise the power, Equity Courts could be regarded as having been cautious about exercising that power (see Smart v Allen(1970) 91 WN (NSW) 241; Salmar Holdings Pty Ltd v Hornsby Shire Council (1970) 91 WN (NSW) 234).

   27. Decisions of the High Court in the 1970’s (Forster v Jododex Australia Pty Ltd[1972] HCA 61; (1972) 127 CLR 421 and Commonwealth v Sterling Nicholas Duty Free Pty Ltd[1972] HCA 19; (1972) 126 CLR 297) made clear that the amendments to the Equity Act had the effect suggested by their terms. The issue was finally laid to rest in New South Wales by s 75 of the Supreme Court Act 1970 which provided that “no proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential ruling is or could be claimed or not”.

   28. The history of declaratory relief is instructive for present purposes. It is significant that, notwithstanding apparently clear statutory provisions enabling Equity Courts to do so, for 90 years after the first of such statutory provisions was enacted in New South Wales, and until the provisions of the Supreme Court Act of 1970 put the matter beyond doubt, courts exercising equitable jurisdiction resisted granting merely declaratory relief.

   29. It is significant for present purposes that the power to order parentage testing in order that the Court may make declarations about parentage of children is expressly reserved for proceedings constituting a matrimonial cause within s 4 of the Act in which such parentage is an issue. It can thus be suggested with some confidence that the legislative intention evidenced by s 69W of the Act is that the power to order parentage testing and hence make declarations of paternity in reliance upon such testing is intended to be exercised only in the course of proceedings under the Act in which paternity is, or becomes, an issue. There is thus a consistency between the provisions of s 69W, and the history of the exercise of powers to grant purely declaratory relief.

   [15][2007] FamCA 1135; 38 Fam LR 461

1. In 1992 the High Court in Ainsworth v Criminal Justice Commission[16] accepted that superior courts have inherent power to grant declaratory relief.

   [16][1992] HCA 10 at [38]; (1992) 175 CLR 564

2. Although s 21 of the Act states that the Family Court is a superior court of record, the High Court held in DJL v Central Authority:[17]

   The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction". The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.

   [footnotes omitted]

   [17]DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; (2000) FLC 93-015 at [25]

3. In In the marriage of Smith,[18] Lindenmayer J observed:

   Finally, it occurs to me that there is another and fundamental reason why this court cannot grant the present application even if it is strictly within the court’s jurisdiction. That is because the only relief sought is a declaration or declarations and the court, in my opinion, has no power to grant such relief . The court is the creature of the Act and it therefore has only such powers as are expressly granted to it by the Act or as may fairly be regarded as being necessarily incidental to the exercise of those powers.

   [18] (1979) FLC 90-642 at 78,363: see also Duroux v Martin(1993) FLC 92-432 at 80,406 and on appeal to the High Court reported as G v H (1994) FLC 92-504 at 81,248 and Re Jamie ibid per Finn J

4. It seems to me that as this Court’s powers are limited by statute and s 67ZC is a power limited to the making of ‘orders’ it does not provide a source of power to grant declaratory relief.

5. However, it might be argued that in the general exercise of the welfare power as provided by s 67ZC and where an order is made dismissing an application for authorisation of medical treatment because a child is found to be Gillick competent, a declaration to that effect is necessarily incidental to the exercise of the welfare power. 

6. In my view a better argument is that a ‘finding’ as opposed to a declaration as to Gillick competency is necessarily incidental to the exercise of the welfare power which is being exercised when dismissing an application for authorisation. This is the argument upon which I rely for making the finding of Gillick competency.

7. A further question would arise as to what power or jurisdiction the Court would have if the only relief sought is a finding that a child is Gillick competent. It might be that such an application may be better made to a State Supreme Court which has a wide parens partriae jurisdiction and the power to grant general declaratory relief.  

8. It is perhaps a matter worthy of legislative amendment by the inclusion in the Family Law Act of a specific power to grant general declaratory relief as provided in the Federal Court of Australia Act 1976 (Cth). In any event these are matters which may be considered in the case stated to the Full Court by Watts J.

Gillick competency

1. By virtue of legislation in all States and Territories in Australia, the age of majority is eighteen. As Jaden is not yet eighteen he is a minor and requires his guardian to consent to medical treatment unless he is assessed to be able to provide that consent himself or unless the medical treatment is of a type that requires authorisation by a court.

2. The reference to Gillick is a reference to a House of Lords decision of Gillick v West Norfold and Wisbech A.H.A.[19] where Lord Scarman articulated the views of the court as follows:

   Parental rights... do not wholly disappear until the age of majority.... But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law... is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.

   [19] [1986] AC 112

3. The High Court of Australia in Marion’s case[20] adopted the Gillick reasoning and test of competency:

   A minor is, according to this principle, 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”.

   [footnote omitted]

   [20] ibid

4. The Full Court in Re Jamie held that the determination of whether a child is Gillick competent is a question of fact for the Court. [21]

   [21] ibid at [137] per Bryant CJ and [186] per Finn J and [196] per Strickland J

5. Jaden provided a written statement which I received into evidence. Jaden provides a poignant account of his life to date and his realisation from age four that he was male although born with female genitalia. He has done all he can to live life as male from age four. Life has become more difficult for Jaden since he experienced some breast development at age thirteen because the stage one treatment was delayed. Jaden has undertaken stage one treatment for three years despite the regular injections causing pain for some days after each treatment. He binds his breasts every day and even while at home wears the binding. He has attended upon numerous specialist medical practitioners over the years and has undertaken his own research about the short and long term irreversible consequences of the treatment and the high risks of adverse health conditions. I place significant weight on Jaden’s evidence.  

6. Jaden’s treating doctors opine that he is not Gillick competent.

7. Dr T purports to justify that opinion as follows:

   52. … given the irreversible lifelong nature of Phase 2 hormone treatment, and the grave possible medical consequences of long term hormone treatment, some of which may not occur until very late in his life, I am not persuaded that [Jaden] has the capacity to consent to irreversible treatment i.e. he has not achieved an understanding of the long term medical consequences to enable him to understand fully what is proposed. Indeed, given the grave consequences, I remain to be persuaded that the (sic) most minors would be in the position to fully understand the implications of irreversible hormone treatment over their entire lifespan.

   53. I therefore do not believe [Jaden] has achieved sufficient understanding to enable (sic) fully understand what is proposed; I am not persuaded that he is Gillick Competent to commence irreversible hormone therapy.

8. Dr J opines:

   40. I believe [Jaden] has an understanding of the effects of Phase 2 hormone treatment with testosterone.

   41. In my opinion, [Jaden] is of sufficient age and intellect to participate in decision-making and express informed views about his desire for the proposed cross gender treatment.

   42. However, in my opinion, [Jaden] does not have the capacity to fully understand the lifelong irreversible and considerable long term health risks associated with cross gender treatment with testosterone and thus does not have capacity to give consent for this treatment.

   43. I do not believe that [Jaden] has Gillick competency regarding the proposed treatment and I do not believe that he will have such competency while he is a minor.

9. It is noteworthy that neither doctor explains the rationale for their opinion that Jaden does not have the capacity to fully understand. Neither set out any discussion with Jaden about the consequences and risks associated with the treatment and his responses thereto. It is perhaps telling that both doctors reveal a view that suggests that a minor cannot be Gillick competent. In my view that seems to avoid the whole point of the assessment.

10. The applicant is critical of the doctors’ opinions and refers to their unsuccessful attempts to have the doctors address the failure to provide a factual basis to support their opinion or comment upon the earlier opinion of Dr B (see below). The applicant had no input into the preparation of the doctors’ affidavits as they had their own legal representation. 

11. Dr T referred Jaden for a second opinion as to the appropriateness of commencing stage two treatment when it was anticipated that treatment would commence when Jaden turned sixteen. Dr B, psychiatrist, assessed Jaden during a ninety minute interview in October 2015 and refers to information that was available to him from various sources in addition to his personal observations of Jaden. Dr B not only agreed that the treatment should proceed but opined:

    His insight, particularly with regards to his gender issues, is far advanced for his years.

    …

    In terms of capacity it is my opinion that he has the capacity to understand what he is requesting. He is very well informed and has the capacity to understand the benefits and risks associated with long term testosterone therapy.

    …

    From the very beginning it has been [Jaden] who has insisted he is male, and it is [Jaden] who has requested assistance to transition a male puberty, and it is [Jaden] who has all along requested that he be given testosterone.

    It is my clinical opinion that [Jaden] is able to make an informed decision in requesting testosterone therapy. He has been able to explain to me the risks and benefits of the treatment he is requesting. He understands that commencing testosterone will have a permanent effect on his physical development.

12. Dr B opined in 2015 that the treatment “should be initiated as soon as possible and should not be withheld from this young man”. Unfortunately, like the stage one treatment there has been delay, although from the evidence before me it is not entirely clear why that is the case. The application was not filed in this Court until 23 March 2017.

13. Ms A is a child safety officer with the Department who has had case management responsibility for Jaden since 23 May 2012. Ms A is a social worker and has met with and visited Jaden regularly since that time, at least monthly. She is familiar with his history with the Department dating back to 2000. In her opinion Jaden presents as mature for his age and has demonstrated a capacity to think and act independently. She states that she has observed Jaden “use discussion, debate and negotiation to solve problems”. She has had many conversations with Jaden about his being transgender and she observes his consistent and ardent desire to live as and be treated as male. This is supported by the Departmental records and by his foster parents. Ms A has attended a number of the medical appointments with various practitioners with Jaden. She has been present on a number of occasions when the consequences and risks of the treatment have been discussed with Jaden. Given her qualifications and experience and importantly, her involvement with Jaden and his family, I place considerable weight on her opinions about Jaden’s maturity and understanding of the complex issues involved and risks associated with the treatment.

14. Jaden consulted with Dr D, a fertility specialist, on 31 May 2015 to discuss and consider freezing his eggs prior to the commencement of the treatment. Jaden made a considered and rational decision not to proceed with that procedure and demonstrated a mature understanding of the consequences of his decision.

15. Ms O has been Jaden’s foster mother since he was four years old. She and her husband, Mr H, have been a constant support and ‘parents’ in all bar a legal sense for most of Jaden’s life. Ms O provides a persuasive account of her observations and experience of Jaden’s commitment to living as a male and the frustrations and challenges Jaden and her family have endured as a result of their not having the legal ability to make decisions for Jaden. It is perhaps curious that a formal adoption process was not undertaken long ago. Jaden has discussed his views and wishes with Ms O and she is firmly of the belief that Jaden is fully aware and accepting of the consequences and risks associated with the treatment and that he “will never change his mind” about wishing to proceed.

16. When assessing whether a child was Gillick competent in Re Darryl,[22] Tree J rejected the notion that the words ‘understand fully’ require a child to have achieved the “maximum understanding which later years may give them when their brain and personality are fully developed”[23] and reiterated what the High Court adopted as the appropriate consideration i.e. “the capacity to make an intelligent choice, involving the ability to consider different options and their consequences”.[24] I respectfully agree.

    [22] [2016] FamCA 720

    [23] Ibid at [14]

    [24] Ibid at [13]

conclusion

1. Jaden recently turned seventeen. He has identified as male since he was four and lived life as a male since age eight. During his primary school years the school community knew of and supported his decision to live as male. When he commenced high school he decided to keep his personal circumstances private but that has become more difficult in recent years because he has not commenced male puberty. He had hoped for stage two treatment to have commenced when he turned sixteen in 2016 but like stage one treatment there have been delays. He just wants to move on with his life and live as he perceives himself to be i.e. male. He has the support of a loving family, his child safety officer, his medical practitioners and the applicant. There is agreement by all that stage two treatment is in his best interests.

2. Having regard to Jaden’s own evidence, the evidence from Dr B, Ms A and Ms O, I am satisfied that Jaden has the capacity to consent to commencing stage two treatment. Jaden has no doubt about his decision to live as a male and is fully aware of the consequences and risks associated with stage two treatment. He is, in my view, more than capable of making a rational and intelligent choice after considering all relevant information. I am satisfied that Jaden has achieved a sufficient understanding and intelligence to enable him to understand fully what is proposed and I accept that he has made an informed decision to proceed with stage two treatment. He is Gillick competent to provide consent.

3. Having made that finding, authorisation for the treatment is not in my view required. Bryant CJ stated in Re Jamie:

   129. The first [question] is whether, if the child is Gillick competent, there remains any role for the court at all. In my view, there does not. …

   …

   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.

4. Bryant CJ’s view is confirmed by the two other members of the Full Court in Re Jamie viz Finn and Strickland JJ.[25]

   [25] See Finn J at [188] and Strickland J at [196]

5. That view is consistent, with respect, to the High Court decision in Marion’s case.

6. It is therefore curious that in setting out her conclusions, Bryant CJ said in Re Jamie:

   140. …

   d) if the child is Gillick competent, the child can consent to the treatment and no court authorisation is required, absent any controversy;

   …

   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.

7. Those statements appear to be inconsistent with the earlier expressed view although it may simply be intended to recognise the power of a court to override a decision made by a Gillick competent child where the treatment proposed is controversial.[26] 

   [26] See for example the discussion in  Director-General, Department of Community Services Re Thomas [2009] NSWSC 217 per Brereton J

8. In the event that my finding as to Gillick competency were found to be incorrect or it is considered necessary to nevertheless make a finding that the treatment is in Jaden’s best interests because of the controversy of opinion about competency between the medical practitioners, I would nevertheless be satisfied that the treatment is in Jaden’s best interests and that the evidence addresses all matters required by Rule 4.09 of the Family Law Rules 2004 (Cth).

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 May 2017.

Associate: 

Date:  2.05.2017