Re: Jesse
[2021] FedCFamC1F 42
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Jesse [2021] FedCFamC1F 42
File number(s): By court order file number is suppressed Judgment of: CLEARY J Date of judgment: 9 September 2021 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Where the child has been diagnosed with Gender Dysphoria – Where the mother supports the child receiving Stage 1 and Stage 2 treatment for Gender Dysphoria – Where the respondent father does not consent to the treatment – Where the respondent father failed to participate in proceedings – Where a declaration is made that the child is Gillick competent – Where sole parental responsibility is allocated to the mother Where mother can consent to Stage 1 and Stage 2 treatment for Gender Dysphoria without consent by the father – Order made suppressing the identities of the parties and the publication of any information that would identify them Legislation: Family Law Act 1975 (Cth) Cases cited: Re: Kelvin [2017] FamCAFC 258 Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 3 September 2021 Legal Representation: By court order the names of legal practitioners are suppressed ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The child Jesse born 2006 (“the child”) be declared Gillick competent to consent to Stage 1 puberty blocking hormone treatment for the condition Gender Dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders [DSM-5].
2.The mother is allocated parental responsibility, to the exclusion of the father, for making decisions about major long term issues in relation to the child specifically, but not only, with respect to providing any necessary parental consent for:
(i)Stage One puberty blocking hormone treatment on and from the date to be determined by the treating medical practitioners of the child;
(ii)Stage Two treatment administration of cross-sex hormones when the child is aged between 16 and 18 years, such treatment to be provided on and from a date determined by the medical practitioners of the child and in such manner and with such frequency as determined by the treating medical practitioners of the child.
3.That the mother be at liberty to provide a copy of the un-anonymised orders and un-anonymised reasons for judgment to all persons involved in the child’s treatment.
4.The name of the child, his family members and their occupations, his medical practitioners, his school, the court’s file number, the State or Territory of Australia in which these proceedings were initiated, the name of any lawyers in these proceedings and any other fact or matter that may identify the child shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyer’s names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, it being noted that each party shall be provided with copies of orders and any reasons for judgment with relevant details including the file number and lawyers’ names.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jesse has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
CLEARY J
INTRODUCTION
This is an application by the mother for both parenting orders and orders pursuant to section 67ZC of the Family Law Act 1975 (Cth) (“the Act”).
The applicant is the mother of the subject child now known as, Jesse. Jesse was born a girl and was formally known as Cathy. Jesse at date of hearing was almost 15 years of age. He was present at court events.
The respondent to the application is the father of Jesse. The respondent lives in New Zealand.
The mother lived in New Zealand until 2017 when she moved with Jesse to live in Australia.
THE APPLICATION
The Initiating Application was filed on 28 July 2021 and subsequently amended.
The documents relied on are:
(a)Amended Initiating Application of the mother filed 2/08/2021;
(b)Notice of Child Abuse filed 28/07/2021;
(c)Affidavit of the mother filed 28/07/2021;
(d)Affidavit of Dr B, child and adolescent psychiatrist, filed 28/07/2021;
(e)Affidavit of Ms C, psychologist, filed 28/07/2021.
The Secretary of Family and Community Services was served with the application of the mother and all other documents relied on. There is evidence before the Court[1] that on 10 August 2021 the Secretary of Department of Communities and Justice advised that the Secretary did not intend to intervene in the proceedings.
[1] Exhibit 4.
On 4 August 2021, the father was served at his home in New Zealand with the application of the mother.[2] The father has not filed any Response to the application.
[2] Exhibit 1.
The application was listed urgently before me on 12 August 2021. There was no appearance by or on behalf of the father. The matter was stood over to 3 September 2021 to enable the father to consider participating, whether or not he filed a Response.
At 8.37 am Eastern Standard Time on the morning of the hearing, a Microsoft Teams meeting invitation previously sent to both parties was declined by the father.
The father has not taken the opportunity to express his views or bring forward any relevant evidence, personal or professional. The orders sought are as set out in the application of the mother.
JESSE
Jesse has been diagnosed with Gender Dysphoria and wishes to undergo puberty blocking hormone treatment, Stage 1 treatment, immediately.
There are three stages of intervention/treatment: Stage 1 is the administration of puberty blockers; Stage 2 is the administration of cross-sex hormones which can only be prescribed from around the age of 16; and Stage 3 is gender reassignment surgery which is only available to young people 18 years and over.
The mother supports Jesse receiving Stage 1, and, in due course, Stage 2 treatment. The father has not consented to the treatment[3] and is not willing to consent.
[3] Affidavit of the mother filed 28/07/2021, par 3.
The approval of this Court is not required for therapeutic treatment, even where the condition or proposed medical intervention is very serious.
In Re: Kelvin [2017] FamCAFC 258, a decision of the Full Court of the Family Court of Australia, is authority for this proposition:
Where Stage 2 treatment of a child for Gender Dysphoria is proposed and the child consents to the treatment, the treating medical practitioners agree that the child is Gillick competent to give that consent, and the parents of the child do not object to the treatment it is not mandatory to apply to the Family Court to determine whether the child is Gillick competent.
In this case the child is Gillick competent. The mother does not object to the treatment. The father does not consent to it, but has chosen not to participate in the proceedings.
SHORT HISTORY
The child was born in D Town in New Zealand. Accordingly, the change of name proposed will need to be effected with the registrar or Births, Deaths and Marriages in New Zealand. A standalone order has been made for that application to be made.
The relationship between the parties has been limited. They began living together in April 2005. They separated soon after the mother learned in early 2006 that she was pregnant with Jesse. There followed limited communication between the parties. The father saw the child on the day he was born for about 10 minutes. 18 months passed. Thereafter, there was some time and communication sporadically.
When Jesse was pre-school age the father commenced proceedings in the Family Court in New Zealand.
On 6 August 2009 parenting orders were made in New Zealand. The mother was unable to locate and produce a copy of those orders. This Court requested a copy of all relevant parenting orders be obtained from the Court in New Zealand.
In March 2014 the mother moved with Jesse to Australia. The mother did not tell the father of her intention to move or seek his consent to take Jesse with her. The father learned of the move two months later when the mother told him. The mother agreed to pay for Jesse to visit his father in New Zealand during school holidays. There were regular visits for about three years.
The father did not come to Australia to visit. The last visit was in September 2017 just before Jesse turned 11 years. Jesse felt scared for reasons not fully disclosed to his mother during that visit.
From November 2017 until March 2021 there was no communication between the father and Jesse.
By date of hearing orders from New Zealand had not become available. There is evidence before the Court that in response to the request by the applicant, the relevant file had been requested from archives in New Zealand. Due to a COVID health restriction and level 4 lockdown, the file had not been received by the D Town registry.
The mother had herself found subsequent orders dated 11 November 2010 which were stated to vary orders made on 6 August 2009. The Court accepted that the orders produced were sufficient evidence of parenting orders in New Zealand. Those orders were not subsequently registered in Australia.
THE PATH TO DIAGNOSIS
The mother informs the Court that at the end of 2018 when Jesse was in his last year of primary school, he began to dress differently. He began wearing baggy clothes and asked to have his hair cut short.
In 2019 when he started high school his mood fluctuated. By mid-year he was consulting a psychologist and has continued to do so. His current psychologist, Ms C, has provided a report for the Court. Her report indicates that Jesse was, “struggling with anxiety and depressive symptomology with a history of trauma and difficult relationship with his father”.[4]
[4] Affidavit of Ms C filed 28/07/2021, page 4, par 3.
Jesse reported gender identity issues. He often wanted to discuss his plans for transitioning to a male. His distress was:
Observed to increase when describing recent interactions with his father, which saw the possibility of transition to male being blocked.[5]
[5] Affidavit of Ms C filed 28/07/2021. Page 5, par 4.
He revealed a positive connection and high level of trust with his mother.
The psychologist expressed her professional opinion that beginning pubertal blockers and changing his name would likely lead to positive outcomes for his mental health and wellbeing. The reverse, if the transition did not begin.
In January 2020, Jesse told his mother, “I am a boy”. He wanted to be called Jesse. He quickly moved to wanting to be accepted as a boy at school and to be known as Jesse. Some bullying of him followed.
Jesse was referred to a mental health service, was prescribed antidepressants and was referred to E Centre (the gender clinic).
In mid-2020 Jesse changed schools and that has been positive for him.
By February 2021 Jesse was having suicidal thoughts. He went to hospital and was admitted to an adolescent mental health unit. In summary, he longs to commence treatment.
Dr B, the child and adolescent psychiatrist who Jesse has consulted, expressed her professional opinion that, “Jesse is capable of making an informed decision about the treatment of puberty blockers”.
The doctor considered that Jesse had a realistic expectation of treatment and is competent to give informed consent, the risks and benefit having been fully explored.[6]
[6] Affidavit of Dr B filed 28/07/2021, page 6.
On 19 March 2021, Jesse showing considerable courage, sent an email to his father.[7]
Hey
It’s been a while but there’s some things I want you to know.
First off, I go by Jesse now. For the past year I have been presenting socially as male and plan to complete my transition over the next few years. This means that I am a boy, people refer to me as him and so far it has been a great relief. As far as the laws go, I can make most of the medical decisions on my own as I am 14 and only need one parent’s permission. I am planning on changing my name legally meaning I will be getting a new birth certificate and as you are on there as my biological father I need your permission to change my name. When the time comes all we will need is a signature or verbal consent for me to legally change my name and begin my process in my transition. If you want to know more, feel free to ask.
Mum is not aware of the fact that I have contacted you and I wish for it to stay as such.
Regards
Jesse
[7] Affidavit of the mother filed 28/07/2021, Annexure A.
On 13 April 2021, Jesse had his first attendance at E Centre after waiting for five months for an appointment. On that occasion the mother and Jesse were informed that Stage 1 treatment could not proceed without both parents’ consent.
The mother provided a telephone number for the father. The father agreed to have a telephone appointment with a medical practitioner, but subsequently cancelled it.
Jesse showed signs of immense distress in the following weeks.
The mother contacted the father on 14 April 2021 and they exchanged emails all day in a considered way. Ultimately, at 6.46 pm New Zealand time the father responded as follows:[8]
Okay. Well, I could never consent to what he is asking. I have to do what I think is best, but I will give up parental rights. What you do after that is up to you two.
[8] Affidavit of the mother filed 28/07/2021, Annexure A – entry of 14 April 2021 at 6.46 pm.
The mother again spoke to the father. He expressed his willingness to sign away his parenting rights if the mother stopped child support.[9]
[9] Affidavit of the mother filed 28/07/2021, Annexure D – eight entries of 18 May 2021.
The Court is satisfied that the evidence supports an allocation of parental responsibility to the mother extending to all the long-term and day to day decision making for Jesse, and, specifically, both Stage 1 and Stage 2 treatment.
The father may be willing for the mother to take on the responsibility for making those decisions. He has not attended Court to express that willingness. The best interests of Jesse are promoted by the mother having that authority exclusively of the father until Jesse turns 18 in 2024.
CONCLUSION
The Court is satisfied by the evidence provided that Jesse is Gillick competent to make the decision to proceed with Stage 1 treatment. In the absence of consent by the father to that treatment and further treatment, the mother now has by these orders sole parental responsibility and can authorise that treatment to the extent that her authorisation is required for Stage 1, and also for Stage 2.
A declaration for Gillick competence for Jesse has been made and an order for the mother to have parental responsibility exclusively.
Orders are made accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 9 September 2021
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