Re: Jason

[2016] FamCA 772

FAMILY COURT OF AUSTRALIA

RE: JASON [2016] FamCA 772

FAMILY LAW – CHILDREN – Where the parents sought a declaration that the child was competent to consent to phase 2 treatment for Gender Dysphoria – Where the court is satisfied the child is sufficiently competent to understand the nature of and express a decision about his receipt of phase 2 treatment –Discussion of the form the orders should take – Consideration of s 67ZC of the Family Law Act 1975 (Cth) – Where it is appropriate to make a declaratory order – Declared that the child is competent 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 67ZC, 94(1), 121(9)

Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
Hay v Hay (1998) FLC 92-819
Re: Jacinta [2015] FamCA 1196
Re: Jamie (2013) FLC 93-547
Re: Logan [2016] FamCA 87
Re: Mackenzie [2016] FamCA 610
Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218
Yule v Junek (1978) 139 CLR 1

1st APPLICANT: The Father

2nd APPLICANT: The Mother

RESPONDENT: Relevant Government Department

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 9 September 2016

JUDGMENT OF: Justice Austin

HEARING DATE: 9 September 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. The Court declares that Jason (formerly known by female name X) born on … 2000 (“the child”), is competent to consent to the administration to him 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 his family members and his 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the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.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.

3. 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 Applicants 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: Jason 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

The Father and the Mother

Applicants

And

The Relevant Government Department

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern a child, now 16 years of age, who has been diagnosed with Gender Dysphoria. He was born genetically female, but identifies as male.

2. The applicants, who are the child’s parents, jointly seek a declaration that the child is competent to give informed consent to the next stage of his treatment for the condition.

3. The relevant Department was joined to the proceedings as respondent, but informed the Court by letter it did not wish to be heard against the application. The Department’s representative, who appeared this morning, sought and was granted leave to withdraw.

4. Consequently, the issue for determination is whether the child is competent to give informed consent to his medical treatment, as the parties contend. If not, the ancillary question is whether he should receive the treatment anyway because his best interests would be thereby served.

Proposal and evidence

1. The applicants prosecuted the Application they filed on 22 July 2016. It should be noted they were offered, but rejected, an expedited hearing on either 10 or 11 August 2016. Instead, their application was heard on 9 September 2016.

2. The applicants sought alternate relief. Preferentially, they sought a declaration that the child is competent to consent to his own medical treatment, but alternatively, they sought a declaration authorising them to give consent on the child’s behalf to his administration with medical treatment.

3. The alternate relief they sought was inapposite. The nature of the treatment comprising Stage 2 treatment for Gender Dysphoria is such that the decision about its authorisation is regarded as one which falls beyond the limit of parental responsibility for a child and the law does not permit the Court to enlarge parents’ powers of parental responsibility beyond its ordinary limits (see Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 at 257, 263 (Marion’s Case)). The administration of Stage 2 treatment to a child suffering from the condition of Gender Dysphoria is a matter for the Court to decide if the child lacks competence to decide for him or herself (see Re: Jamie (2013) FLC 93-547 at [5], [140], [188], [192], [195]).

4. In support of their application the applicants relied upon:

   (a)The affidavit of the child’s mother filed on 22 July 2016;

   (b)The affidavit of the child’s father filed on 22 July 2016;

   (c)The affidavit of the child’s endocrinologist, Associate Professor H, filed on 22 July 2016; and

   (d)The affidavit of the child’s psychiatrist, Dr K, filed on 2 August 2016.

The child’s competence

1. The question of the child’s competence is determined by application of the evidence to the legal principles enunciated in Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112, which were confirmed by the High Court in Marion’s Case. 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 treatment is proposed (Marion’s Case at 237-238).

2. The evidence adduced by the applicants addressed the child’s intelligence, comprehension and caution.

3. The mother deposed that the child has a “high capacity” to make decisions and was “not swayed by any sort of peer pressure”. She considered the child was “not prone to impulse reactions and risky behaviour” and had demonstrated “great clarity” in decisions he made about aspects of his school education.

4. Similarly, the father deposed the child “makes decisions in a considered way”. He did not consider the child to be “rash or quick to act”.

5. Dr K described the child as “academically gifted”.

6. During 2015, the child decided he would identify as a male and his school was requested to amend its records to reflect that choice. His name and gender were changed on the school records and he began wearing the male school uniform and playing sport with males.

7. The child was referred to a counsellor, whom he saw regularly from about May 2015. The counsellor referred the child to Dr K for psychiatric intervention in August 2015, whom the child has since consulted twice. On the first occasion the child’s diagnosis with Gender Dysphoria was confirmed and on the second occasion, in February 2016, Dr K concluded the child was “Gillick competent” – a reference to the test of competence earlier mentioned.

8. The child was referred to Associate Professor H in November 2015, whom the child has also now seen twice. The child’s Stage 1 treatment, which involved puberty hormone blocking therapy, began in late 2015 and Associate Professor H reported that the child was now “keen to proceed” with Stage 2 treatment under her supervision.

9. The Associate Professor’s discussion with the child about the proposed further treatment and her opinion about the child’s understanding of it is best expressed in her own words:

   [The child] comprehends the proposed treatment…[The child] understands fully and on a level appropriate to maturity and education the nature of phase two treatment, both its benefits and adverse consequences. We have discussed the impacts on fertility and the nature of the effects of testosterone on ovarian function…

   We talked about the potential for adverse mood effects of testosterone and a small increase in cardiovascular risk over the longer term, and polycythaemia with excessive testosterone replacement…[The child] understands that the decision to proceed with phase two treatment may have consequences that cannot be entirely foreseen at the time of the decision and is free to the greatest extent possible from temporary factors such as pressure or pain that could impair his judgment in providing his consent to the procedure.

10. Of course, the Associate Professor is an endocrinologist and her opinion about the child’s comprehension does not carry the same amount of weight as the psychiatrist specifically appointed to offer his opinion on the same issue.

11. Dr K has specialised qualifications in child and adolescent psychiatry and a sub-specialty interest in Gender Dysphoria. He confirmed the child’s sufferance of the disorder in August 2015 and by February 2016 found him “much happier and clearly at ease with his male gender expression”.

12. Specifically in relation to the child’s comprehension of the proposed treatment, Dr K said:

    I determined that [the child] was able to comprehend and retain both existing and new information regarding the proposed treatment insofar as that his discussion with me demonstrated his capacity to understand…

13. Dr K said the child could describe the probable physical changes to his body, which he perceived would be the advantages of Stage 2 treatment. The child was also able to describe the potential disadvantageous physical and emotional changes he might experience from the treatment. The child told Dr K that, in his view, the advantages of treatment “definitely” outweighed the disadvantages. The child’s perception was that the Stage 2 treatment would be “just bringing [him] up to the normal level of being a biological male, which is what I feel I am”.

14. Dr K’s ultimate opinion was:

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

15. I see no reason to doubt the consistent evidence of Dr K, Associate Professor H, and the child’s parents to the effect that he is intellectually rigorous and mature for his age, understands and has considered the pros and cons of Stage 2 treatment, and is competent to make and express his own decision about the receipt of such treatment. Accordingly, it is unnecessary to consider the alternate question about whether, in the absence of such competence, the child should receive the treatment anyhow.

Orders

1. I have previously expressed a view that, following upon findings such as those just reached, the proceedings should be determined by a declaration being made about the child’s competence, in reliance upon s 67ZC of the Act (see Re: Jacinta [2015] FamCA 1196 at [18]-[28]). That view is not shared by all (see Re: Logan [2016] FamCA 87 at [10]-[11]) and others consider the debate to be sterile (see Re: Mackenzie [2016] FamCA 610 at [6]).

2. Nonetheless, in my view, it remains appropriate to make a declaration. When the Court’s jurisdiction is regularly invoked, the curial proceedings before it can only be properly determined by the Court making a decree which either dismisses the pending application or grants relief within the Court’s power. The mere finding that a child is Gillick competent is not a decree and, without more, does not validly conclude the proceedings. That is best exemplified by the fact that an appeal lies only against a decree, since mere findings are only steps in the litigious process and not themselves decisive of rights (see s 94(1) of the Act; Yule v Junek (1978) 139 CLR 1 at 8, 14, 18, 21, 26; Hay v Hay (1998) FLC 92-819 at [22]-[28]).

3. Consequently, the declaration sought by the applicants is granted. Ancillary orders to ensure privacy are also made.

I certify that the preceding twenty six (26) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 9 September 2016.

Associate: 

Date:  13 September 2016