Re: John
[2021] FedCFamC1F 169
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: John [2021] FedCFamC1F 169
File number(s): By Court Order the file number is suppressed. Judgment of: ALDRIDGE J Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Gender dysphoria – Where the applicant seeks an order that the child is competent to consent to Stage 2 treatment for gender dysphoria – Where the respondent does not consent to the treatment – Where the child wishes to undergo the treatment – Where medical experts are of the view that the child is Gillick competent and support the treatment – The child is found to be Gillick competent – In the best interests of the child to undergo Stage 2 treatment – Where orders relating to confidentiality are made. Legislation: Family Law Act 1975 (Cth) s 67C Cases cited: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Kelvin (2017) FLC 93-809; [2017] FamCAFC 258
Re: Elliott [2017] FamCA 1008
Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (1992) 175 CLR 218 (“Marion’s case”)
Division: Division 1 First Instance Number of paragraphs: 37 Date of last submissions: 7 October 2021 Date of hearing: Heard by way of written submissions Place: In Chambers Representation: By Court order the names of the legal representatives have been suppressed. ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE FATHER
Applicant
AND: THE MOTHER
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The proposed administration of testosterone as Stage 2 treatment for gender dysphoria under s 67ZC of the Family Law Act 1975 (Cth) on and from a date to be determined by the treating medical team of John (born Sarah…) is authorised by the Court.
2.For the purposes of s 28(3) of the Births Deaths and Marriages Registration Act 1995 (NSW), a change of name for the child from ‘Sarah…’ to ‘John…’ is approved by the Court.
3.The Registrar of Births, Deaths and Marriages is to register this change of name for the purposes of s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW).
4.The applicant mother to do all things and sign all documents necessary to give effect to Orders 2 and 3 above.
5.The full name of the child John (born Sarah…), his family members, his hospital, the Independent Children’s Lawyer, his medical practitioners, his school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of John’s parents’ lawyers, and any other fact or matter that may identify John, shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number, and lawyers’ 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 handed one full copy of these orders with the relevant details included, to enable their execution, and one cover sheet of the reasons for judgment that includes the file numbers and lawyers’ names.
6.No person shall be permitted to search the court file in this matter without first obtaining the leave of a judge.
7.All existing applications in this file shall be dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: John has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application pursuant to s 67ZC of the Family Law Act 1975 (Cth) that the Court authorise the administration of testosterone, known as “Stage 2” of the management of John’s gender dysphoria. It has been brought by John’s mother because the father, who has equal shared parental responsibility for him pursuant to orders made on 16 May 2019, declines to consent to that course despite an earlier consent to the administration of puberty blockers, known as “Stage 1” treatment.
John was born genetically as a female on 30 August 2004. Since about December 2017, John has openly identified as male, changing his name to that effect and dressing as a male.
John now wishes to take the next step in his gender dysphoria management, which is to commence testosterone hormone treatment. This treatment, unlike Stage 1, has irreversible elements. John is supported in this desire by the advice of his medical practitioners and by his mother.
It is not necessary for an application to be made to the Court where no controversy arises as to the competence of the child to consent to proposed therapeutic medical treatment by those with parental responsibility and those doctors and institutions providing the treatment agree with the course of treatment (Re Kelvin (2017) FLC 93-809). Where, however, a controversy arises, either as to competence or consent, the court must for itself determine whether or not it is in the best interests of John to authorise the treatment. It is recognised that the treatment for gender dysphoria is therapeutic medical treatment.
The mother filed an Initiating Application seeking the requisite orders on 11 August 2021. The application came before me on 2 September 2021. The Department of Communities and Justice had been notified of the proceedings, but indicated that it did not intend to take part. John’s father appeared for himself and expressed some reservations as to whether the commencement of hormone treatment at this stage was justified and he was concerned as to the physical and psychological risks that commencement of Stage 2 treatment at this time might pose to John.
At my request, the father prepared a letter outlining his concerns in some detail, which was then provided to John’s endocrinologist and psychiatrist. Each of those specialists produced a detailed response to the father’s queries.
The father was however, not satisfied by the responses and has continued to decline to authorise the treatment. However, the father made it clear that he did not wish to adduce any evidence in the proceedings or to cross-examine any witnesses including the doctors who have provided reports to the Court.
The matter then proceeded by way of written submissions and in his submissions the father set out his concerns for the commencement of treatment at this stage. As will be seen, I have taken those into account.
Dr B is a child, adolescent and adult psychiatrist with extensive experience in the area of gender dysphoria. In his report he sets out an extensive history given to him by John which largely accords with the affidavit filed by the mother on 30 August 2021.
The family lived in Town C until John was four years old. In due course, John then attended a single sex school for girls. It is not in issue that John has required learning support since kindergarten and was always inattentive, distractible, restless and fidgety at school. John informed Dr B that he had experienced auditory and visual hallucinations since he was nine years old, which was the year that led to the separation of his parents. John’s hallucinations continued, which led to him being assessed by a child and youth mental health service in September and December 2017, following an acute hallucinatory experience which was witnessed by a clinical psychologist who was treating him at the time.
Dr B concluded that the nature of John’s hallucinations “may well be dissociative (stress/ trauma induced) but given their chronicity and level of organisation it is not possible to exclude a progression to an ultimate diagnosis of paranoid schizophrenia” (Dr B’s report dated 5 July 2021, paragraph 7.2).
John’s difficulties at school increased and he started to avoid attending school from Term 3 in 2017. He became depressed in mood and was deliberately self-harming. In December of that year, John disclosed to his psychologist that he was a boy and wished to be called “John”. Shortly after this, John informed his mother to the same effect and thereafter presented as a male.
At the beginning of the following year, John commenced year eight at a co-educational high school, which while it was accepting and supportive of his male identity, the difficulties at school remained. John came under the care of the Gender Clinic at G Hospital in early 2018.
Dr B first saw John in December 2018 and in February 2019 affirmed a diagnosis of attention deficit hyperactivity disorder. On 10 April 2019, Dr B found that John also met the DSM-5 diagnostic criteria for autism spectrum disorder (level 1).
In August 2018, John was referred to an endocrinologist for the purpose of undertaking Stage 1 treatment, which is a program of oestrogen blockers to prevent the onset of puberty. The treatment commenced shortly afterwards.
In December 2020, John enrolled at a different high school as a male with the consent of his father. According to Dr B, at this high school, John continues his education with full attendance so far this year and has been discharged from the care of the child and youth mental health service in April 2021.
Dr B describes John’s mental health as follows:
7.8 [John] has a complex general mental health history, with diagnoses and problems including:
Separation anxiety disorder
Generalised anxiety disorder
Major depressive disorder (in remission)
Deliberate self-harm (in remission)
Attention deficit hyperactivity disorder
Learning disorder
Autism Spectrum Disorder (Level 1)
Auditory and visual hallucinations
(Dr B’s report dated 5 July 2021, paragraph 7.8)
Dr B describes John as being overweight, but, otherwise physically healthy. John has recently lost 6 kilograms with the assistance of his endocrinologist.
There is no need for me to dwell on the diagnosis of gender dysphoria as it is not in dispute. It is sufficient to record the following from Dr B:
8.6 Since early 2018 (by history) and since my first contact with [John] in December of that year, [John] has experienced a male gender identity which has also been expressed in his clothing, hairstyle, preferred name and pronouns. His male gender identity has been consistent, persistent and insistent. [John] has described feeling very frustrated that he has not been able to enter a male puberty as there is an ever-widening gap between his physical presentation and that of his male age peers, as well as dealing with his own loathing of his body.
(Dr B’s report dated 5 July 2021, paragraph 8.6)
As I understand the father’s submissions, he did not challenge any of those findings, but considered that the earlier history recorded by Dr B and confirmed by the mother was a “work of fiction” and that John had a mix of friends throughout his childhood, “but mostly girls in both pre-school and junior school” (Father’s written submissions in response dated 7 October 2021). The father says that it was only in January 2018 when John was isolated with his mother that he discovered gender dysphoria.
To the extent there is a dispute, it is not one that cannot easily be resolved by me on this application. The father gave no evidence and nor has there been testing of any evidence by cross-examination or by the tender of documents obtained on subpoena. I do not say this critically and the father, most respectfully of John’s position, did not wish such a trial to take place.
However, I suspect that there is not in fact a great deal of difference between what actually occurred and what the father recalls, but rather people are viewing the same facts through a different lens. More importantly, as the above quoted paragraphs make clear, there is no dispute as to any of the facts since January 2018 which is now nearly four years ago. John’s behaviour and attitude has been most constant throughout that time.
John’s views are very important in this matter. Indeed, in other circumstances, his views would be decisive because when a child “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” the child can consent to medical treatment themselves (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (1992) 175 CLR 218 (“Marion’s Case”)).
A very helpful checklist for the issues that inform such competence were set out by Tree J in Re: Elliott [2017] FamCA 1008 at [22]. Those factors were addressed in some detail by Dr B in his report and it is plain from the matters discussed there that John meets each of the matters mentioned in that checklist. I am satisfied that he knows and understands what is involved with his gender dysphoria, the proposed treatment and the risks that are involved in both undertaking and not undertaking the treatment.
Dr B said:
18.16.1 [John] nodded his head vigorously when asked if, after considering all the things that we had discussed about the treatment, both positive and negative, he still wanted to go ahead with testosterone therapy.
18.16.2 Regarding when he might commence it, [John] said, “I would like to start relatively soon – in a couple of months. It would be very difficult (if I had to wait until I turn 18), being left behind while everyone else is getting facial hair, pimples and deep voices”.
(Dr B’s report dated 5 July 2021, paragraphs 18.16.1–18.16.2)
John’s transition to testosterone therapy is supported by Dr B.
As can be seen from the earlier reasons, some of John’s psychological issues are currently in remission. The father was concerned that the commencement of testosterone treatment would act as a trigger to revive those conditions. Dr B did not accept this saying:
[The father] grammatically muddles [John’s] current mental state with his past mental state when he writes, “[John] already has self-harm, depression and anxiety issues although these are described as in remission”. My guess is that [the father] is indicating that [John] is still actively and significantly mentally ill, despite expert opinion to the contrary. It is not disputed that [John] has a vulnerability to depression, self-harm and anxiety as evidenced by his mental health history. This does not mean that the conditions are still somehow active and awaiting some hormonal trigger (like testosterone) which will precipitate exacerbation.
(Dr B’s letter dated 13 September 2021, p.2)
It cannot be ignored that, although there are risks involved in proceeding with the treatment, including regret at possibly having made the wrong decision in the future, there are also risks involved in not undertaking the treatment at this stage. In response to the father’s query, Dr B summarised the position as follows:
[John] feels increasingly dysphoric and self-conscious as he presents as a male to his age peers but has not yet entered a male puberty. [John], who as his father notes suffers from clinical anxiety, dreads his transgender status being revealed amongst his new peer group without his consent and control. Such a situation is often highly traumatising and is to be avoided as much as possible
Throughout his document, [the father] is exclusively focussed on the risks (be they common, uncommon, extremely unlikely or unfounded) posed by the testosterone treatment. In clinical practice, it is necessary to balance these risks, to the extent that they are likely and to the extent that they are known, against the very likely risks of non-treatment or delayed treatment. It is my opinion that [John’s] ongoing mental health, behaviour, social adjustment, participation in education and general well-being are placed at much higher risk by further delay of testosterone treatment than from commencing testosterone therapy administered through current best practice medical and mental health monitoring, support and, where indicated, treatment adjustment as indicated by [John’s] response.
(Dr B’s letter dated 13 September 2021, p.4 –5)
He identified the risk associated with not proceeding to Stage 2 as follows:
14.2.4 In terms of mental health risk, it is highly likely that [John] would experience stress-induced relapses of severe psychiatric illness and even to suicide attempts. This would be extremely disruptive to his psychosocial development, undo much of the progress that has been made to date and cause further trauma.
(Dr B’s report dated 5 July 2021, paragraph 14.2.4)
Thus, there is a real risk to John’s wellbeing if this treatment does not commence.
John’s transition to Stage 2 treatment is supported by his endocrinologist, Dr F. Dr F records that the Stage 1 pubertal blockage has positively improved John’s mental, psychological and social well-being. Prior to the social transition, he was coping poorly, including school refusal, deterioration of mental health, previous self-harm and experiencing visual and auditory hallucinations (Dr F’s letter dated 15 September 2021, p.1). As noted earlier, since attending school as a male, John’s attendance record has been impeccable.
The father raised concerns over the medical effect of testosterone. Dr F’s opinion is that:
…[T]estosterone therapy is generally safe, comparable with its conventional use for testosterone replacement therapy in men with pathological hypogonadism. There would be long-term changes in cardiometabolic profile including an alternation in lipids, blood pressure, weight and serum glucose. Hence, the need for ongoing monitoring of these effects to address any specific medical issues if they develop.
(Dr F’s letter dated 15 September 2021, p.2)
As has been stated, John has some issues with weight, but is committed to dealing with this and has recently lost 6 kilograms. Dr F accepts that John has some insulin resistance due to his obesity, which will require ongoing monitoring, but the expectation is that that resistance will improve with weight reduction. In those circumstances, I am not satisfied that there is any advantage to John in waiting for him to undergo six months of training to improve his physical health before commencing the therapy.
As to the benefits of the therapy, Dr F said:
The provision of Stage 2 testosterone therapy in an individual with established gender incongruence is clinically indicated to improve physical, psychological and social well being. The risk of withholding therapy is likely to impose more significant harm than the potential risk of the therapy itself.
(Dr F’s letter dated 15 September 2021, p.3)
I am satisfied therefore that it is in the best interests of John that he commence testosterone therapy as Stage 2 treatment of gender dysphoria, as and when his doctors consider it appropriate and that an order should be made authorising that treatment.
In those circumstances, it is also in John’s best interests for his name to be formally changed and for the Registrar of Births, Deaths and Marriages to register this change accordingly.
For obvious reasons concerning the privacy of John, orders will be made as sought protecting the identity of John in copies of the reasons for judgment and court records.
I certify that the preceding thirty-seven (37) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 29 October 2021
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