FAMILY COURT OF AUSTRALIA
| RE JODIE | [2013] FamCA 62 |
| FAMILY LAW – CHILDREN – special medical procedures – gender identity disorder – jurisdiction – interim orders. Family Law Act 1975 (Cth) ss 4, 31, 33, 60B, 60CA, 60CB, 60CC, 61B, 61D, 61DA, 64B, 65D, 67ZC, 69A, 69H, 67ZC, 69ZE, 69ZH Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 518 (“Marion’s Case”) |
| APPLICANT: | The Mother |
| RESPONDENT: | The Father |
| INDEPENDENT CHILDREN’S LAWYER |
| BY COURT ORDER THE FILE NUMBER IS SUPPRESSED |
| DATE DELIVERED: | 14 February 2013 |
| JUDGMENT OF: | Justice Dawe |
| HEARING DATE: | 31 January 2013 |
REPRESENTATION
| BY COURT ORDER THE NAMES OF COUNSEL AND SOLICITORS HAVE BEEN SUPPRESSED |
Orders
The MOTHER (the “mother”) is authorised to consent to treatment on behalf of the child JODIE (the “child”) born … 2000 under the guidance of the child’s treating medical practitioners including but not limited to her Endocrinologist, Professor X and her Psychiatrist Associate Professor Z for the administration of Lucrin in such dose, in such manner and with such frequency as determined in consultation with her treating medical practitioners to achieve suppression of Gonadotrophins and Testosterone to pre-pubertal levels (“Stage 1 Treatment”).
That the full name of the child, the child’s family members and their occupations, the Hospital, the Independent Children’s Lawyer, the child’s Medical Practitioners, the child’s school, the name of the mother’s lawyers, and any other fact or matter that may identify the child may not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the Registry, File Number and Lawyer’s names and details, as well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 and that each party shall be handed one full copy of the Orders with the relevant details included, for provision to the treating Medical Practitioners.
No person save and except the parties to the proceedings shall be permitted to search the Court File in this matter without first obtaining the leave of a Judge.
The final application is adjourned to Friday 1 November 2013 at 9.15 am before the Honourable Justice Dawe for mention only.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Jodie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
BY COURT ORDER THE FILE NUMBER IS SUPPRESSED
| The Mother |
Applicant
And
| The Father |
Respondent
REASONS FOR JUDGMENT
Introduction
By proceedings commenced on 11 January 2013 the Mother sought final and interim orders relating to the proposed medical treatment of her child Jodie who was born in 2000.
The orders sought that the mother be authorised to consent to certain treatment under the guidance of medical practitioners and specialists, as a result of the diagnosis that the child had Gender Identity Dysphoria. Other related orders were also sought providing for the suppression of the information identifying the persons involved in the proceedings and treatment.
Procedural Background
The Initiating Application was filed on 11 January 2013 and listed for mention before me on 23 January 2013. Subsequently the mother has filed an amended Initiating Application on 29 January 2013, adding to the final orders sought the following:
1.A Declaration that the child’s treatment for Gender Identity Disorder (including but not limited to all hormone and other treatment known as “Stage 1 Treatment” and/or “Stage 2 Treatment”) is not a “special medical procedure”.
Amongst the final and interim orders originally sought was the following:
2.That the mother … (the “mother”) shall be authorised to consent to treatment on behalf of the child [Jodie] (the “child”) born … 2000 under the guidance of the child’s treating medical practitioners, including but not limited to her Endocrinologist, Professor [X] and her Psychiatrist Associate Professor [Z] for the administration of Lucrin in such dose, in such manner and with such frequency as determined in consultation with her treating practitioners to achieve suppression of Gonadotrophins and Testosterone to pre-pubertal levels (“Stage 1 Treatment”).
Both the final orders and interim orders sought included orders which prevented the publication of any fact or matter that might identify the child save and except for the relevant details being provided to the treating medical practitioners.
On 11 January 2013 affidavits were filed on behalf of the mother. These affidavits included an affidavit of the mother sworn on 10 January 2013 setting out the background information and in particular dealing with the child’s social and educational history, the child’s development and the child’s views. Annexed to the mother’s affidavit are the correspondence between the mother and her current husband with the education authorities, together with correspondence from various specialists who have been treating the child, in particular Associate Professor Z, Psychologist, Dr R and Professor W.
On 11 January 2013 the mother’s solicitors also filed on her behalf, affidavits from Professor X sworn on 21 December 2012 to which is annexed Professor X’s letter of 19 December 2012 answering specific questions directed to the child’s diagnosis and proposed treatment. On that date the mother’s solicitors also filed the affidavit of Associate Professor Z, to which is annexed correspondence, including the detailed mental health report concerning the child dated 3 January 2013.
On 22 January 2013 the Court received the affidavit of Ms F, the solicitor for the mother to which was annexed the correspondence sent to The Minister, Families SA, dated 16 January 2013 informing The Minister of the proceedings and enclosing by way of service copies of the documents relied upon by the mother. Counsel for the mother informed the Court on 31 January 2013 that The Minister’s office had acknowledged receipt of the documents, but had provided no other response to the proceedings. No one on behalf of The Minister or the Crown appeared at either of the interim hearings before the Court.
On 4 February 2013 the solicitor for the mother filed an affidavit to which is annexed correspondence including a letter from Families SA indicating that “Families SA do not intend to object and/or appear in the Family Court in relation to this matter”.
Following upon directions made by the Registrar in Chambers, the Independent Children’s Lawyer was appointed on 16 January 2013.
Due to the urgency of the matter, the first directions hearing was listed before me on 23 January 2013 by way of video-link. On that occasion Ms K appeared as counsel for the mother and Mr T appeared as the Independent Children’s Lawyer.
There was no appearance for the father. The father had been joined as a respondent to the original Initiating Application.
On 23 January 2013 I raised with counsel for the mother and Independent Children’s Lawyer the concerns about jurisdiction. For further consideration of the question of jurisdiction and the interim orders the matter was adjourned to 31 January 2013.
On 31 January 2013 the mother was again represented by Ms K of counsel, with Mr T as the Independent Children’s Lawyer also present.
After hearing submission from counsel as to the service of the documents upon the father in an overseas country by email and hearing submissions as to the limited involvement the father had in the life of the child, I ordered that the mother was to file and serve an affidavit setting out full particulars of the service and response of the father, noting that upon consideration of that material I propose to make an order in Chambers which would provide for such service to be deemed to be sufficient service upon the father. The order was later made in Chambers on 5 February 2013.
After hearing submissions of Ms K and Mr T, I reserved judgment in relation to the interim orders sought.
Relevant Background
The child’s biological father … was born in 1975 and is therefore aged 38.
The mother … was born in 1978 and is therefore aged 34.
The father lives in an overseas country. … The mother and father met whilst the father was holidaying in Australia “in or about 1999”. After a brief relationship Jodie was born. Before Jodie was born the father left, returning after Jodie’s birth. The mother and father lived together for six months, after which time the mother and father separated in or about January 2001 when the father returned overseas. There has been no physical contact between the father and the child since then.
According to the mother there has been limited communication between the child and the father since that time.
The mother married her current husband in February 2004. The mother has three children, Jodie and two children H and N who are the biological children of her current husband.
In previous proceedings concerning the child Jodie, the mother obtained final orders. On 12 April 2002, the order of the Family Court of Australia provided that the child reside with the mother and “the mother be responsible for the said child’s long term and day to day care welfare and development”.
Subsequently the Magistrates Court made an order that Jodie’s surname be changed to the mother’s current surname.
In her first affidavit the mother refers to Jodie being diagnosed in 2008 by Associate Professor Z, the Consultant Infant Child Psychiatrist from the C Hospital and later Professor M from A University as experiencing Gender Identity Disorder (GID) of childhood and adolescence, transsexual type, male to female.
Since about July 2007 the immediate extended family, friends, educators and professionals have referred to Jodie only using female pronouns.
The mother’s affidavit sets out the educational history of the child and her childhood behaviour. Following upon various consultations and observations of Jodie’s ongoing behaviour, the mother was referred to Dr R, Psychologist from a Counselling Service. The family’s general practitioner later referred Jodie to Professor W, Paediatric Endocrinologist and Associate Professor Z, Consultant Infant Child Psychiatrist from the C Hospital.
From the commencement of school in 2009, Jodie returned to D School and has since then been recognised, acknowledged and treated as female (see paragraph 117 of the mother’s affidavit filed 11 January 2013). Since that time the mother has continued to consult the experts concerning the child’s treatment.
In 2010 the family moved. Shortly thereafter Jodie also changed schools to the nearby local school where he is known exclusively as a girl.
In her affidavit the mother refers to the child progressing well at school until suffering anxiety and depression in relation to body changes. Since the end of term 3 in 2012 the child has not attended school and has been home schooled under the guidance of the Department of Education and Childhood Development.
The mother sets out in her affidavit the significant views of Jodie concerning her desire to be considered a female, anxiety about her puberty developments and her attitude towards the proposed medication and treatment.
The mother’s views and her reports of the child’s views are strongly supported by the experts.
The report of Dr X is dated 19 December 2012. Dr X is a Paediatric Endocrinologist who has “…followed [Jodie’s] growth and development over the last two years…”. It is expected that she will continue to be the treating Endocrinologist who will prescribe the medication for the child. The report confirms the diagnosis of Gender Identity Disorder, confirms the support for the child psychiatry assessment and supports the prescription of medication “to prevent the progression of puberty” until the child is older and can make decisions about any treatment that is not reversible. The report confirms that the medication can be stopped at any time. If stopped the long term effects would be completely reversible.
The report also contains the following:
If the procedure is not carried out: puberty will progress at a normal pace and [Jodie] will develop the signs of normal male puberty. They are growth of the genitals and testes, increased erections, ejaculation of sperm, increased body hair including pubic hair, underarm hair and facial hair, increased muscle development and deepening of the voice. These changes are not reversible. In relation to the emotional effects of these changes, please refer to the assessment made by A/Prof [Z].
The report also sets out the risks of the medication which is described as minimal. In relation to other aspects the report refers to the assessment of Associate Professor Z. In relation to the timing of the steps in paragraph L the expert refers to the commencement as being of some urgency, “ie within the next three months to begin the Lucrin treatment”.
Under the heading “Any other matters that you would consider relevant we would plan” the following is contained:
Provided [Jodie] and her parents wished for this, to continue the Lucrin treatment until [Jodie] is 16 years of age when she can then make decisions about more definitive treatment if she wishes for this.
The detailed report of Associate Professor Z MBBS, FRANZCP, Cert Child Adol Psych, Consultant Child and Adolescent Psychiatrist … is annexed to Associate Professor Z’s affidavit . The report is dated 3 January 2013. The report sets out the extensive experience and qualifications of the specialist in the area of childhood gender identity.
The detailed report sets out the background history and confirms the diagnosis of “gender identity disorder of childhood and adolescence, transsexual type, male to female”. The report also refers to the second opinions of Professor M and Dr R, which are attached to his report.
There is also significant reference to the consultation with the Hospital Clinical Ethics Group at the C Hospital.
The report refers to the opinion that Jodie’s current emotional health is at significant risk:
[Jodie’s] current emotional health is at significant risk should she continue to develop rapid masculinisation of her body.
(See page 4 of Associate Professor Z’s report).
The report goes into some detail about the diagnosis and the likely effects if the procedure is carried out and the procedure is not carried out. At the top of page 8 the report states:
I believe she will suffer significant depression and likely to feel despairing and hopeless. … I believe increasing physical masculinisation will put her at significant risk for depression and self-harm. It is also likely to undermine her personal dreams and ambitions, adding to a sense of hoplessness.
The report further discusses the alternatives and concludes under the heading “That the procedure is necessary for the welfare of the child” that:
It is my belief that it is very much in [Jodie’s] best interest to commence Phase 1 treatment with the suppression of pubertal hormones as soon as is medically indicated (that has. [Jodie’s] body moves into Tanner stage II puberty). I believe that [Jodie’s] welfare will be compromised should she have to proceed with the further masculinisation of her body. [Jodie] would become at major risk of developing distress, depression and self-loathing should she have to experience a body becoming more masculine. …
The report then refers to further consideration being given to further treatment when Jodie is at around the age of 16 years.
The report also refers to Jodie having:
…demonstrated capacity to seriously think about issues such as the possibility of adopting or fostering children of her own. [Jodie] definitely agrees to the procedure, and feels desperate that she wants to commence suppression of the further development of male puberty.
(Page 10 of report).
Under the heading “Any other matters that you consider relevant” on page 11 the report continues:
I would emphasise that it is a serious matter to cease pubertal development in a healthy young person, and such treatment should not be undertaken without for consideration of the risks and benefits. I have no doubt however that it will be in [Jodie’s] best interests to suspend further development of male pubertal changes in her body. I believe that [Jodie’s] parents and [Jodie] have each given serious consideration to the decision to seek hormonal suppression of puberty. I also believe that [Jodie’s] parents would be very supportive of [Jodie] should she wish to cease suppression of puberty or cross sex hormone treatment, should she have commence treatment.
Under the heading of “Conclusion and Recommendation” the report concludes by “respectfully” submitting that the mother should be given permission to authorise that the child be allowed to commence Stage 1 hormone treatment as recommended by the Consultant Endocrinologist and similarly, that the mother:
in close consultation with [Jodie’s] treating medical and mental health clinicians, be authorised to allow for [Jodie] to commence Stage 2 hormone treatment for Gender Identity Disorder, Transexual Type, namely to commence female cross-gender hormone treatment (oestrogen) at around the age of 16 years in order to allow for further development female bodily development, should she still experience her gender identity as female.
Professor M’s letter to Associate Professor Z dated 12 December 2012, is annexed to Associate Professor Z’s affidavit. Part of that report includes reference to the child being “…articulate and intelligent with an acute awareness of the dilemma s/he experiences as a lack of congruence between her sense of self and body”. It also refers to the child having a good understanding of the nature of the proposed treatment. The report concludes “[Jodie] is likely to experience increasing distress with puberty and should be considered for the use of puberty blocking hormones”.
The report of Dr R, dated 4 January 2013 is also annexed to the affidavit. The psychotherapist has worked with the child since October 2008. He describes the child as presenting as an “engaging, intelligent, respectful and self-aware young girl”. It confirms the diagnosis of Gender Identity Disorder in children.
The Law
The Family Law Act 1975 (Cth) (“the Act”) in its present form contains numerous sections in Part VII which is headed “Children”. (Last count approximately 230 sections between s 60A to s 69ZX).
For reasons which are discussed later the most significant and relevant sections in Part VII for these proceedings are as follows:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note:The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
60CBProceedings to which Subdivision applies
(1)This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.
Note:Division 10 also allows a court to make an order for a child’s interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.
(2)This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.
60CCHow a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
61BMeaning of parental responsibility
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
61DParenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
64BMeaning of parenting order and related terms
(1)A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
(2)A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.(My emphasis)
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note:Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
(3)Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child. (My emphasis)
…
65DCourt’s power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.
…
67ZCOrders relating to welfare of children
(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.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(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.
Note:Sections 60CB to 60CG deal with how a court determines a child’s best interests.
69AWhat this Division does
This Division deals with:
(a)the institution of proceedings and procedure (Subdivision B); and
(b)jurisdiction of courts (Subdivision C); and
(c)presumptions of parentage (Subdivision D); and
(d)parentage evidence (Subdivision E); and
(e)the places and people to which this Part extends and applies (Subdivision F).
69HJurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Magistrates Court
(1)Jurisdiction is conferred on the Family Court in relation to matters arising under this Part.
69ZEExtension of Part to the States
(1)Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.
(2)Subject to this section and section 69ZF, this Part extends to Western Australia if:
(a)the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:
(i)the maintenance of children and the payment of expenses in relation to children or child bearing;
(ii)parental responsibility for children; or
(b)Western Australia adopts this Part.
(3)This Part extends to a State under subsection (1) or (2) only for so long as there is in force:
(a)an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:
(i)the matters referred to in subparagraphs (2)(a)(i) and (ii); or
(ii)matters that include, or are included in, those matters; or
(b)a law of the State adopting this Part.
(4)This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:
(a)the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or
(b)matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters.
(My emphasis)
69ZHAdditional application of Part
(1)Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2)By virtue of this subsection, Subdivisions BA and BB of Division 1, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a)each reference to a child were, by express provision, confined to a child of a marriage; and
(b)each reference to the parents of the child were, by express provision, confined to the parties to the marriage.
(3)The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):
(a)the duties, powers, responsibilities and authority of those parties in relation to:
(i) the maintenance of the child and the payment of expenses in relation to the child; or
(ii) whom the child lives with, whom the child spends time with and other aspects of the care, welfare and development of the child; and
(b)other aspects of duties, powers, responsibilities and authority in relation to the child:
(i) arising out of the marital relationship; or
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, an annulment of that marriage or a legal separation of the parties to that marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.
(4)By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor.
Section 4 contains the interpretation of various expressions used in the Act. Those that are most relevant to these proceedings are as follows:
Major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. (My emphasis).
There is no definition of “guardianship” in the Act.
Sections 31 of the Act is headed “Original Jurisdiction of Family Court”
31 Original jurisdiction of Family Court
(1)Jurisdiction is conferred on the Family Court with respect to:
…
(d)matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.
33 Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.
It is significant that the provisions in relation to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (which received Royal Assent on 22 May 2006) inserted the definition of “major long term issues”. That amendment also inserted fresh sections 64B ss (2) to (4) which refer to the matters with which a parenting order may deal, including “(2)(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child” and new section ss (3) “Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child”.
It was also this amending Act in 2006 which inserted the definition “Order under this Act affecting children” and the definition of parental responsibility being “parental responsibility in Part VII has the meaning given by section 61B”.
The powers of the Commonwealth to pass legislation in relation to children who are not children of a marriage relies upon the reference of powers from the States. In South Australia the Commonwealth Powers (Family Law) Act 1986 Section 3 provides:
3—Reference of certain matters relating to children
(1)The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 4, as the day on which the reference under this Act shall terminate, but no longer, namely:
(a)the maintenance of children and the payment of expenses in relation to children or child bearing;
(b)the custody and guardianship of, and access to, children.
(2)The matters referred by subsection (1) do not include the matter of the adoption of children or the matter of the taking, or the making of provision for or in relation to authorising the taking, of action that would prevent or interfere with—
(a)a Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a law of the State, or any other person, having or acquiring the custody, guardianship, care or control of children under a provision of an Act specified in the Schedule; or
(b)the maintenance of, or the payment of expenses in relation to, children who are in such custody, guardianship, care or control; or
(c)the jurisdiction of a court of the State, under a provision of an Act specified in the Schedule, to make orders, or take any other action, in respect of—
(i)the adoption of children; or
(ii)the custody, guardianship, care or control of children; or
(iii)access to children or the supervision of children.
(3) In the preceding provisions of this section—
(a)the references to children shall be read as references to persons under the age of 18 years; and
(b)the references to the maintenance of, and the payment of expenses in relation to, children shall be read as including references to the maintenance of, and the payment of expenses in relation to, persons who have attained that age and have special needs in respect of maintenance or expenses by reason of being engaged in a course of education or training or by reason of a physical or mental handicap; and
(c)the references to an Act specified in the Schedule shall be read as references to that Act as amended and in force from time to time, and as including a reference to any Act or Acts replacing that Act and as amended and in force from time to time.
Family Law Rules
The current provisions provide specific direction for applications for medical procedures. Rule 4.08 to 4.12 set out those provisions. The dictionary which forms part of the rules defines a medical procedure application as:
medical procedure application means the Initiating Application (Family Law) seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.
It then provides as an example:
An example of a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease is a procedure for sterilising or removing the child's reproductive organs.
Significant cases
When Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s Case”) was decided in the High Court of Australia in May 1992, reference was made to the provisions of the Act which then applied including the provisions of sections 63(E)(1) and (2) of the Act as it then was:
(1)A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than:
(a)the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child.
(2)A person who has or is granted custody of a child under this Act has:
(a)the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child. (Paragraph 15).
The joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Marion’s Case (supra) states at paragraph 53:
For the above reasons, which look to the risks involved in the decision, particularly in relation to the threshold question of competence and in relation to the consequences of a wrong assessment, our conclusion is that the decision to sterilise a minor in circumstances such as the present falls outside the ordinary scope of parental powers and therefore outside the scope of the powers, rights and duties of a guardian under s.63E(1) of the Family Law Act. This is not a case where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction. Court authorisation in the present case is required. Where profound permanent incapacity is indisputable, where all psychological and social implications have in fact been canvassed by a variety of care-givers and where the child's guardians are, in fact, only considering the interests of the child or where their own interests do not conflict with those of the child, court authorisation will ordinarily reproduce the wishes of the guardian. But it is not possible to formulate a rule which distinguishes these cases. Given the widely varying circumstances, it is impossible to apply a single rule to determine what are, in the respondents' words, the "clear cases".
The joint judgment in Marion’s Case (supra) goes on to state at paragraph 81:
It is clear enough that a question of sterilisation of a child of a marriage arises out of the marriage relationship and that the sterilisation of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorise a sterilisation is within the reach of power of the Commonwealth … (My emphasis)
Since Marion’s Case there have been cases reported of decisions by Judges at first instance (to a lesser extent the Full Court) in which the jurisdiction of the Court has been found to exist pursuant to s 67ZC of the Act which was an amendment made after Marion’s Case.
Many of those cases related to decisions being made concerning a child who was a child of the marriage or a child of a marriage which had been dissolved. There are only a limited number of cases reported which clearly relate to children who are not children of a marriage. In one case a decision by Justice Carter (Re Brodie (Special Medical Procedure: Jurisdiction [2007] FamCA 776) discusses the jurisdiction issues relating to the child who was a child of parents who lived in different States.
The decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365 refers to the provisions of s 67ZC. In particular, the joint judgment of Gummow, Hayne and Heydon JJ deals with the jurisdictional issues facing the court at paragraph 98:
98. It is convenient to begin with subdiv C (ss 69G-69N). Jurisdiction is conferred by s 69H(1) on the Family Court "in relation to matters arising under [Pt VII]". That expression includes proceedings under the injunction provisions of Div 9, including s 68B (s 69G). However, looking outside subdiv C, par (d) of s 31(1) states that jurisdiction is conferred with respect to "matters ... with respect to which proceedings may be instituted in the Family Court under this Act". Further, s 33 confers jurisdiction in respect of matters which are "associated" with those in which the jurisdiction of the Family Court is invoked or with those arising in proceedings before it. These "associated matters" are limited to categories of "matter" of federal jurisdiction listed in ss 75 and 76 of the Constitution[99]. These provisions are to be read together with s 69H. This follows from s 69M. That states:
The jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division.
Significantly in the decision of MIMIA v B (supra) the High Court discuss the arguments put to them based upon Marion’s Case and the implications of s 67ZC. The application of s 67ZC is limited by the fact that s 67ZC welfare provisions only apply in South Australia to children of a marriage. The child in this case is not a child of a marriage.
However, the discussion in the High Court’s decision in MIMIA v B (supra) was focussed upon the jurisdiction of the Court to make orders which were binding upon a third party (in that case the Minister). Specifically Gleeson CJ and McHugh J at paragraph 53 state:
The orders sought in the present case are not concerned with the relationship between the parents of the children. They do not seek to enforce duties or obligations owed by the parents to the children. They are not analogous to the orders sought in Marion's Case, which did not impose any duty or liability on a third party.
A thorough, useful discussion of the law in relation to medical procedures and jurisdiction is the decision of Justice Young in Re Baby D (No 2) (2011) 45 Fam LR 313. In that judgment his Honour refers to the decision of his Honour Justice Murphy in Re Sean and Russell (Special Medical Procedures) (2010) 44 Fam LR 210. Specifically in paragraph 196 of Re Baby D (No 2) (supra) his Honour Justice Young says as follows:
196.I respectfully agree with the reasoning and comments of Murphy J. Importantly his Honour noted that even if court authorisation is not required, the Court has the jurisdiction and power to make orders in relation to “any other aspect of parental responsibility”. Parental responsibility comprises “all duties powers and responsibilities and authority, which, by law… parents have in relation to… children” including orders which “seek to define or clarify the limits of parental responsibility”. Murphy J noted that the applications in the matter of Re: Sean and Russell had not be brought in avoidance of parental responsibility, or for an ulterior motive, and that as the jurisdiction of the Court had been properly invoked and the orders and declarations sought were within power, the determination of an issue relating to the limits of parental responsibility could be said to be in the best interests of the child.
197.Section 69H of the Act provides that the Court is vested with jurisdiction in relation to matters arising under Part VII. This includes the power to make parenting orders pursuant to s 65C and in accordance with s 64B. Section 64B(2)(i) provides that an order may deal with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”, including “major long-term issues” relating to the child’s health. The jurisdiction conferred by s 67ZC states that it is provided “in addition to the jurisdiction that a court has” under Part VII.
198.The applicant parents have, pursuant to the request of the Clinical Ethics Committee of the hospital, made an application to this Court seeking orders either for Court authorisation of the proposed procedure(s) or for declarations that the authorisation of the proposed procedure(s) are properly within the ambit of parental responsibility. Those orders relate to the determination of an issue relating to the limits of parental responsibility. Further, the determination of those issues in all of the circumstances can be said to be in the best interests of the child, Baby D. It follows that as the applications have been made properly, not in avoidance of parental responsibility or for an ulterior or improper purpose, and as the jurisdiction of the Court has been properly invoked, the Court has a duty to exercise its jurisdiction and hear and determine this matter.
Jurisdiction
The introduction of s 67ZC followed upon the decision of Marion’s Case and has from time to time been used to imply that the “parens patriae jurisdiction” has been granted to the Court. In relation to children who are not children of the marriage, that jurisdiction conferred by s 67ZC must be considered in light of the matters which have been referred to the Parliament of the Commonwealth by the State. In South Australia the reference has been limited to the custody and guardianship of, and access to, children. The decision of the High Court in MIMIA v B (supra) clearly limits the power of the Commonwealth Parliament to make laws in relation to children who are not children of the marriage to those criteria specified namely, custody and guardianship of, and access to, children.
I accept the argument however that s 67ZC is not the only basis upon which this Court has been given jurisdiction to consider the matters before the Court concerning the child Jodie. The referral of the power to make laws relating to guardianship permits the application of the specific portions of the Act which deal with parental responsibility to all children (whether of a marriage or not).
The mother has the benefit of an order which she obtained from the Family Court of Australia in 2002 which provides for her to have the long term and day to day responsibility for the child’s care, welfare and development. The provisions of s 64B(2)(i) specifically indicate that a parenting order is one which deals with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.
Section 64B(3) refers to a parenting order dealing with “the allocation of responsibility for making decisions about major long term issues in relation to the child”.
Section 4(1) of the Act clearly defines a major long term issue to include decisions in relation to the child’s health.
A parenting order may deal with issues concerning the development and health of the child and in particular the responsibility for making decisions about major long term issues.
One of the specific decisions which the Court is being asked to make is the decision in relation to the ambit or range of that parental responsibility. The Court is asked to determine whether to authorise the mother (who has guardianship of the child) to make the decision, or whether she has the right, without the Court’s authority, to make the decision.
The South Australian Government referred to the Parliament of the Commonwealth the power to make laws in relation to guardianship of children who were not children of a marriage. The Act has since replaced words relating to “guardianship” with other words which are within the ambit of the concept of parental guardianship namely, the parental responsibility for major long term issues.
The Court has jurisdiction (s 69H) in relation to matters under Part VII. This includes the power to make parenting orders which pursuant to s 64B(2)(i) may deal with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. (My emphasis).
Counsel for the mother also relied upon submissions in relation to accrued jurisdiction in s 33 of the Act and the decision of Warby and Warby (2001) 28 Fam LR 443 where the Full Court referred to the ability of the Family Court of Australia to exercise accrued jurisdiction to determine “non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part”.
It was submitted that the single justiciable controversy in the present case was the medical treatment for the child. However this does not readily fit the description of a “justiciable controversy” which falls within the Act’s provisions. Having decided that I have jurisdiction it is not necessary for me to determine the argument in relation to accrued jurisdiction, but I express doubt as to whether there is any other controversy to which the parens patriae aspect could accrue.
Discussion of Orders Sought
By way of an interim order the mother seeks a direction from the Court:
That the mother forthwith be authorised to consent to the treatment on behalf of the child for the administration of “Stage 1 Treatment”.
By way of final order the mother seeks:
A declaration that the Gender Identity Disorder treatment for the child limited to all hormone and other treatment known as “Stage 1 Treatment” and/or “Stage 2 Treatment” is not a special medical procedure.
The submissions on behalf of the mother are that the Stage 1 treatment is not the type of treatment which would fall outside the ordinary parental responsibility of a parent who has an order of the Court granting her sole parental responsibility, thus authorising her to make major long term decisions concerning the child’s health and development.
The thorough detailed expert reports provided to this Court indicate that the Stage 1 treatment proposed is fully reversible medical treatment.
The annexures to the experts’ reports provided to the Court indicate that the experts, some of whom are resident interstate, are likely to be relying upon decisions which relate to the law as it applies in that State.
The experts assisting the child and the mother have requested that the mother obtain authority from the Court to commence the treatment for the child.
The detailed discussion of the identification of a special medical procedure in the decision of his Honour Justice Young in Re Baby D (No 2) (supra) is of assistance.
In paragraph 225, his Honour refers to the earlier judgments of Murphy J in Re Sean and Russell (Special Medical Procedure) (2010) 44 Fam LR210 and Cronin J in Re Inaya (Special Medical Procedure) [2007] 38 Fam LR 546 and concludes:
… even if Court authorisation was not required, the Court had jurisdiction to make orders as long as the orders were in the best interests of the child.
In Re Brodie (Special Medical Procedure) [2008] FamCA 334 Justice Carter determined that the proposed treatment was not treatment for “bodily malfunction or disease” and that it required authorisation of the Court. In that matter the Stage 1 treatment was considered as a component of the entire treatment plan.
Re Jamie (Special Medical Procedures) [2011] FamCA 248 related to the treatment proposed for a child aged 10 nearly 11 who had been diagnosed with Gender Identity Disorder. The application before the Court related to the administration of puberty suppressing hormones and additional treatment of oestrogen as considered appropriate by the child’s treating endocrinologist in consultation with the treating psychiatrist.
In the conclusion of Justice Dessau’s judgment the discussion of the combination of the two stages of treatment is helpful. Her decision also refers to Re Brodie (supra) and the earlier decision of the former Chief Justice Nicholson in Re Alex: Hormonal Treatment for Gender Identity Disorder [2004] FamCA297. The orders in Re Jamie (supra) provided for Jamie to receive the first stage of puberty suppression medication. This appeared to classify the treatment at the first stage as a special medical procedure which required the Court to exercise its jurisdiction being an authorisation outside the normal authority of the parents.
The decision of her Honour Justice Dessau on 6 April 2011 is the subject of an appeal to the Full Court of the Family Court of Australia. The appeal was brought by the parents of Jamie. The Amended Notice of Appeal filed in June 2011 relied upon grounds which included a ground that the treatment of the condition “childhood gender identity disorder” was not a special medical procedure which displaces the parental responsibility of the parents to decide upon appropriate treatment for the child. Ground 3 also included the following:
Further and in the alternative to Ground 1, once the diagnosis of childhood gender identity disorder was established and accepted and the treatment approved, the learned trial judge erred in law and the exercise of discretion in concluding that the treatment for the disorder should be the subject of a further application to the Court when the ‘Stage 2’ is about to commence.
The Full Court delivered reasons on 2 February 2012 granting “a public authority” leave to intervene in the appeal. In that decision reference was made to the fact that “even if the issue had not been agitated at trial, if the Judge at first instance “erred in law” then the jurisdiction of the appellate Court to correct that error can be invoked”. (See (2012) 46 Fam LR 439, [14]).
In paragraph 23 reference was made to the submission to the Full Court that:
The characterisation of that disorder and its treatment as a special medical procedure is fundamental as it distinguishes those cases to which parental acquiescence can be given without necessary court intervention, from those where the Court’s involvement needs to be orchestrated by a relevant party.
In paragraphs 44 and 45 of that judgment the Full Court said:
44. However the issue now agitated in Ground 1 of the appeal raises the possibility of a significant change in the law as it now stands, and the overturning of many cases which have found treatment for childhood gender identity disorder to be a special medical procedure which displaces the parental responsibility of the parents to decide upon the appropriate treatment for their children: Re Bernadette (Special Medical Procedure) (2010) 43 Fam LR 467; Re Alex (2009) 42 Fam LR 645; Re Brodie (Special Medical Procedure) [2008] FamCA 334; Re Alex: Hormonal Treatment for gender identity dysphoria (supra).
45. In this context it is, in our view, not inconsistent for the First Intervener to now wish to intervene in the appeal as a significantly different and potentially far reaching issue arises that was not agitated at trial.
The judgment concluded by allowing the First Intervener to intervene in the case provided that it was limited to written and oral submissions on the first ground of the Amended Notice of Appeal and that the First Intervener was not permitted to call any evidence in the proceedings.
The judgment on the appeal in that matter (Re Jamie (supra)) has not yet been delivered.
In this matter the application for final orders seeks either that there be a declaration that the mother has sufficient authority to authorise the treatment or that the Court authorise the treatment. By way of interim orders the Court is asked to permit Stage 1 as an interim order because Stage 1 is not the type of treatment which requires the Court to exercise the special jurisdiction.
Because Stage 1 (seen without the proposed Stage 2) could be seen as outside the type of treatment which would require the special medical procedures approval by this Court, an interim order may be made simply confirming that the mother, having sole parental responsibility of the child, is authorised to make that decision. The alternative is that the Court finds that it is a special medical procedure which requires the Court to give approval to the mother having such authority.
In this matter the Court is asked to adjourn consideration of the final orders sought until after the Full Court delivers its decision in Re Jamie (supra). This decision, when delivered, will provide assistance to the parties and the Court about the law relating to this type of treatment.
Jurisdiction exists to make the interim order, whether it is considered to be an order which confirms that the mother has such parental responsibility, or whether it is an order which falls within the special medical procedure requirements and thus specifically authorises the mother to consent to the procedure.
In either case the best interests of the child are the paramount consideration.
The provisions of s 61DA impose a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection (4) provides that:
the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this matter the evidence before the Court, particularly the evidence concerning the previous Court Orders granting the mother sole parental responsibility and the history of limited involvement which the father has had in the care, upbringing and welfare of the child, clearly rebuts any presumption that the Court should consider the mother and father having equal shared parental responsibility when making an order which relates to the exercise of parental responsibility for the child or making an order relating to the ambit of the parental responsibility for the child.
The Court is required to consider the matters set out in ss (2) and (3) of s 60CC when determining what is in the best interests of the child.
The Family Law Rules, in particular r 4.09 refer to the evidence which “must be given to satisfy the Court that the proposed medical procedure is in the best interests of the child”. Subrule (2) sets out detailed factors to be considered.
As set out earlier in this judgment, the Court has received significant affidavit material in relation to the background of the child from the mother and detailed expert evidence from those concerned with the medical, psychological and psychiatric condition and treatment of the child.
Some of the factors set out in r 4.09, such as whether the child agrees to the procedure, would also relate to the matters to be considered under s 60CC. Notwithstanding that interaction I propose to deal with r 4.09 matters and thereafter (at the risk of being repetitive) deal with s 60CC factors.
(a) The exact nature and purpose of the proposed medical procedure
The report of Professor X, MBChB MD, FRACP of 19 December 2012 refers to the proposed medical procedure of Lucrin injections every three months “to prevent [Jodie’s] puberty progressing”. The report refers to the diagnosis disorder and says:
The progression of puberty (normal male puberty) is considered to cause her unacceptable anxiety and anguish, having been reared as a girl since early in life. As the endocrinologist, I support the child psychiatry assessment over the last 10 years and therefore support prescribing Lucrin to prevent the progression of puberty until [Jodie] is older and can make decisions about any treatment that is not reversible.
Similarly, in the Mental Health Report of 3 January 2013, provided by Associate Professor X, MBBS, FRANZCP, Cert Child Adol Psych, Consultant Child and Adolescent Psychiatrist, it states on page 5:
(A)The exact nature and purpose of the proposed medical procedure:
Stage one of treatment: it is my recommendation that [Jodie] should commence puberty suppressing treatment with a GnRH analogue, in accordance with the recommendation of her responsible paediatric endocrinologist, to suppress the further development of distressing secondary sexual characteristics such as enlarged penile and testicular development, male facial and body hair distribution, increased height and masculine build which I believe would be severely detrimental to her emotional development.
Stage two of treatment: I believe it will be appropriate for [Jodie] at around the age of 16 years to commence female sex hormones, oestrogen, as recommended by a consultant endocrinologist. This would allow for the gradual development of breasts and other female secondary sexual characteristics such as feminisation of skin and body fat deposits. This would involve taking regular oral doses of an oestrogen tablet.
[Jodie] should have the opportunity to continue with regular psychological counselling and support.
(b) The particular condition of the child for which the procedure is required
Professor X’s report refers to “Gender Identity Disorder”. Associate Professor Z says at page 5:
I believe that [Jodie] meets criteria for a diagnosis of Gender Identity Disorder of Childhood (F64.2 WHO, International Classification of Diseases).
He then sets out in specific detail the symptoms which meet the criteria. Further he states on page 6:
I believe [Jodie] also meets criteria for the diagnosis of Gender Identity Disorder in Adolescents, according to the Diagnostic and Statistical Manual of Mental Disorders of the APA (DSM IV TR).
(c) The likely long-term physical, social and psychological effects on the child –
if the procedure is carried out and
if it is not carried out”.
The detailed information provided by both Professor X and Associate Professor Z emphasise the benefit to the child of the commencement of treatment and the significant disadvantage and risk to the child if the treatment is not carried out.
In particular, Professor X relies upon the opinion of Associate Professor Z, who states:
[Jodie] is already distressed by penile erections, and I believe [Jodie] will find these experiences very distressing as they are not consistent with the view of herself as a female.
The comments on this topic also include:
…without puberty suppression treatment she will look more and more masculine and this will increase the sense of feeling different, isolated and disconnected from her peers. I believe she will suffer significant depression and likely to feel despairing and hopeless. …
The opinion concludes:
I believe increasing physical masculinisation will put her at significant risk for depression and self-harm. It is also likely to undermine her personal dreams and ambitions, adding to a sense of hopelessness.
(d) The nature and degree of any risk to the child from the procedure
Professor X sets out the particulars which form the basis of her conclusion that there is minimal risk from intramuscular injection. Associate Professor Z also sets out in particular detail in his report the possible side-effects and risks to be incurred consequent upon puberty suppression treatment.
(e)If any alternative and less invasive treatments are available for the condition and, if any such alternative treatments exist, the reason the procedure is recommended instead of the alternative treatments
Professor X states, “No this is the only effective treatment available”.
Associate Professor Z refers to three alternative possibilities:
(1)“No treatment”. He does not consider this an appropriate course of action because of the significant distress it is likely to cause to the child;
(2)“Other drug treatments”. He considers these not to be appropriate because of the “significant side-effects such as weight gain and suppression of the adrenal glands”;
(3)“Psychotherapy”. Associate Professor Z considers that the child should continue with psychiatric treatment of a supportive nature, but states “there is little evidence that for children who have a profound gender identity disorder and have been living in the role of the affirmed gender for a significant period of time, that psychotherapy itself produces a change in this inner sense of gender identity”.
(f) That the procedure is necessary for the welfare of the child
Professor X refers to the assessment of Associate Professor Z. His report provides clear, direct answer to this question beginning with:
It is my belief that it is very much in [Jodie’s] best interest to commence Phase 1 treatment with the suppression of pubertal hormones as soon as is medically indicated … I believe that [Jodie’s] welfare will be compromised should she have to proceed with the further masculinisation of her body.
He then refers to the risk of “distress, depression and self-loathing” if the treatment is not commenced. Under this topic it is concluded by Associate Professor Z:
It is highly likely that it will be imperative for [Jodie’s] optimal emotional and social development in later adolescence that her body become more in line with her deeply-held perception of her own female gender.
As previously indicated annexed to Associate Professor Z’s affidavit is a report he received from Professor M, MBBS, PhD, FRANZCP … The letter is dated 12 December 2012 and concludes:
[Jodie] is likely to experience increasing distress with puberty and should be considered for the use of puberty blocking hormones.
Also annexed to Associate Professor Z’s affidavit, is the letter from Dr R, PhD, Psychology, … The letter is dated 4 January 2013. He has worked with the family since 2008. His report supports the diagnosis of Gender Identity Disorder in Children and Gender Disorder in Adolescence and Adults. The report sets out support for the treatment.
Similarly, the letter from Associate Professor L on behalf of the Clinical Ethics Group, C Hospital, dated 4 January 2013 to Dr Z, states:
1.It is ethically appropriate to commence hormone treatment to suppress puberty in this child with diagnosed Gender Identity Disorder, in accordance with the informed choice of the parents.
2.It is ethically appropriate to begin the process of seeking court approval now, before puberty has commenced, on the basis that puberty suppression treatment would be (sic) begin when there were medical indications that puberty had begun, and that cross sex hormones would begin when the young person, parents and treating team agree that the time is right (envisaged to be around the age of 16).
3.[Jodie’s] biological father needs to be informed of what is proposed, his views sought, and his legal status in relation to decision-making clarified.
(g) If the child is capable of making an informed decision about the procedure – whether the child agrees to the procedure”.
The evidence from the mother and the reports of the experts consulted provide strong evidence that the child “demonstrates an understanding of the broad nature of the treatment proposed” (page 10 of Associate Professor Z’s report). In Associate Professor Z’s report it is stated:
… Although it is difficult for a child of this age to completely understand the implications for her life as a young adult, [Jodie] has demonstrated capacity to seriously think about issue such as the possibility of adopting or fostering children of her own. [Jodie] definitely agrees to the procedure, and feels desperate that she wants to commence suppression of the further development of male puberty.
(h) is not applicable.
Whether the child’s parents or carer agree to the procedure
Both the mother and the child’s stepfather strongly support the treatment commencing. The limited information which is available from the biological father is hearsay. The evidence from the mother indicates that he has participated only to a very limited extent in the life and upbringing of the child. Taking into account the lack of interaction between the biological father and the child, the absence of any direct evidence of his attitude is not significant.
Section 60CC
Whether the Court is exercising the jurisdiction of the Court pursuant to a welfare power or in relation to the jurisdiction to make a parenting order which relates to an aspect of the care, welfare or development of the child or any other aspect of parental responsibility of the child (s 64B(2)(i)) the Court is required to regard the best interests of the child as the paramount consideration. The provisions of s 60CC therefore apply.
Section 60CC(2) sets out the primary considerations. The decision the Court is being asked to make in this matter does not impact in any significant way upon the benefit to the child of having a meaningful relationship with both of the child’s parents. (Section 60CC(2)(a)).
Similarly, in relation to s 60CC(2)(b) (the need to protect the child from harm from being subjected to or exposed to abuse, neglect or family violence) is not a factor in these proceedings. It is not alleged that the child has been exposed to, or is likely to be, exposed to abuse, neglect or family violence.
The additional considerations include:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
As set out above the Court has strong evidence concerning the child’s views, both from the mother and the experts who have been consulting and providing assistance to the child. Consideration has also been given to the level of understanding and the serious nature of the decision being made. The evidence strongly supports the finding that the child has expressed strong views that she wishes to proceed with treatment as soon as possible.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The evidence indicates that the child has a strong relationship with her mother and stepfather who have been supporting the child, caring for her and assisting her to make arrangements for schooling and medical treatment.
The biological father has a limited relationship with the child.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
It is not disputed that the evidence establishes that the child’s mother has played the major role, with the assistance of her husband, in making decisions about major long term issues concerning the child. It is also clear from the evidence that the biological father has taken only a minor role in decisions, spent limited time with the child and communicates only sporadically.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother and stepfather have undertaken this role with only minimal support from the biological father.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The factors to be considered in this matter do not directly relate to any separation from either of the parents or significant persons. It is however a decision which is likely to have a significant effect on the child’s circumstances, being one which according to the evidence from the mother and experts, is likely to have a significant psychological and emotional effect upon the child. The evidence which is compelling clearly indicates that the child is likely to suffer significant, detrimental, psychological and emotional effects if the treatment is not commenced. The evidence also supports the psychological and emotional benefits to the child of the commencement of the treatment.
Subsection (e) is not relevant.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that the mother and stepfather have exhibited appropriate capacity to provide for the child’s needs, including her emotional and intellectual needs. The biological father has not demonstrated any capacity to provide for the needs of the child, other than occasional limited financial support.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The maturity, sex, lifestyle and background of the child are characteristics which are highly relevant. The evidence provided by the experts and the mother indicate that these factors support the interim order.
Subsections (h), (j), and (k) are not relevant.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
and
(m)any other fact or circumstance that the court thinks is relevant.
The Court is being asked at this stage to make only an interim order in relation to the commencement of the Stage 1 hormonal treatment for the child. In some cases it may well be preferable to consider making only one order which would cover all aspects of future treatment. The Court does not have the benefit of the Full Court’s decision which has been reserved in the matter of Re Jamie (supra). The mother has requested that further consideration of future treatment (Stage 2 treatment) be adjourned to await the decision of the Full Court. The commencement of the first stage of treatment is urgent. The Court considers it is in the best interests of the child to make the interim order and comply with the mother’s request to adjourn the proceedings to await the Full Court judgment. This is supported by the Independent Children’s Lawyer.
Conclusion
As previously discussed the Court has the jurisdiction and power to make the orders sought whether the first stage of treatment is considered to be a special medical procedure or not. The Court has before it compelling evidence which establishes that the psychological and emotional health of the child could be placed at risk if the Stage 1 treatment is not commenced immediately. The evidence strongly supports the conclusion that it is in the best interests of the child that an immediate interim order be made providing for the mother to have authority to authorise the commencement of the Stage 1 treatment. This is necessary to protect the psychological and emotional health of the child.
Because of the nature of the proceedings it is also in the best interests of the child and appropriate for the orders to include orders which suppress the identity of those involved.
For the above reasons therefore I make the orders of the type sought by the mother in paragraphs 3, 4 and 5 of the Amended Initiating Application filed on 29 January 2013.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 February 2013.
Associate:
Date: 14 February 2013
- AGLC
- RE JODIE [2013] FamCA 62
- Case
- [2013] FamCA 62
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether it possessed the jurisdiction to make orders authorising special medical procedures for a child diagnosed with gender identity disorder, and if so, what those orders should entail. This involved considering the scope of the Family Court's powers under the *Family Law Act 1975* (Cth) in relation to children's welfare and medical treatment, particularly in circumstances involving complex and potentially irreversible interventions.
Justice Dawe applied the principles established in *Secretary, Department of Health and Community Services v JWB and SMB* (1992) 175 CLR 518 (commonly known as *Marion's Case*), which affirmed the Family Court's jurisdiction to authorise medical procedures for children that are not in their best interests or are of a serious nature. The court considered the child's diagnosis and the proposed treatment, which involved the administration of Lucrin to suppress pre-pubertal levels of gonadotrophins and testosterone. The court also had regard to previous decisions concerning gender identity disorder and special medical procedures, such as *Re Alex* and *Re Brodie*.
The court made orders authorising the mother to consent to Stage 1 Treatment on behalf of Jodie, under the guidance of her treating medical practitioners, including her endocrinologist and psychiatrist. These orders specified the administration of Lucrin in a dose, manner, and frequency determined by the medical practitioners to achieve the desired suppression of hormone levels. The court also made extensive orders for the anonymisation of the judgment and suppression of identifying details to protect Jodie's privacy, and restricted access to the court file. The final application was adjourned for mention.
Orders
Orders of the court
1.
The MOTHER (the “mother”) is authorised to consent to treatment on behalf of the child JODIE (the “child”) born … 2000 under the guidance of the child’s treating medical practitioners including but not limited to her Endocrinologist, Professor X and her Psychiatrist Associate Professor Z for the administration of Lucrin in such dose, in such manner and with such frequency as determined in consultation with her treating medical practitioners to achieve suppression of Gonadotrophins and Testosterone to pre-pubertal levels (“Stage 1 Treatment”).
2.
That the full name of the child, the child’s family members and their occupations, the Hospital, the Independent Children’s Lawyer, the child’s Medical Practitioners, the child’s school, the name of the mother’s lawyers, and any other fact or matter that may identify the child may 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 and that each party shall be handed one full copy of the Orders with the relevant details included, for provision to the treating Medical Practitioners.
3.
No person save and except the parties to the proceedings shall be permitted to search the Court File in this matter without first obtaining the leave of a Judge.
4.
The final application is adjourned to Friday 1 November 2013 at 9.15 am before the Honourable Justice Dawe for mention only.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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