Re: Julian

[2017] FamCA 621

FAMILY COURT OF AUSTRALIA

RE: JULIAN [2017] FamCA 621

FAMILY LAW – CHILDREN – SPECIAL MEDICAL PROCEDURE – Where the applicant is the legal guardian of a child diagnosed with Gender Dysphoria – where the child wants to commence Stage Two treatment for Gender Dysphoria – determination of whether the child is Gillick competent - where the Court is satisfied that the child is Gillick competent to fully understand the nature and consequences of Stage Two treatment

Evidence Act 1995 (Cth)

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

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Alex [2009] FamCA 1292
Re Jamie (2013) FLC 93-547
Re Kelvin [2017] FamCA 78
Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218

APPLICANT: The Legal Guardian

RESPONDENT: The Father

FILE NUMBER: By Court Order the File Number is suppressed

DATE DELIVERED: 18 August 2017

JUDGMENT OF: Macmillan J

HEARING DATE: 3 August 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. Upon the Court being satisfied that Julian (referred to as … on his birth certificate) born … 2001  is competent to consent to the medical treatment described in the Initiating Application filed 28 July 2017, the Initiating Application filed 28 July 2017 is otherwise dismissed with a right of reinstatement upon the determination by the Full Court in the case stated of Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require the determination of the Court.

AND THE COURT NOTES

The treatment described in the Initiating Application filed 28 July 2017 is the following treatment for gender dysphoria:-

(a)Stage two hormonal treatment with testosterone to masculinise his body.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Julian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the File Number is suppressed

The Legal Guardian

Applicant

And

The Father

Respondent

REASONS FOR JUDGMENT

Introduction

1. Julian was born in 2001 and is currently aged 16 years and seven months. Julian has been diagnosed as meeting the diagnostic criteria for gender dysphoria-post transition (DSM-V 302.85) and while he is biologically female, he has transitioned socially to living as a male and is known to friends and family as a male.

2. Julian wishes to begin what is referred to as “Stage Two” treatment which involves the administration of testosterone to masculinise his body. Dr D, Julian’s paediatrician, described various testosterone treatments that are available and said that “the exact form of testosterone used and method of administration will be individualised for Julian”. As some of the effects of that testosterone treatment are irreversible, the applicant, who is  Julian’s legal guardian, has applied to this Court seeking orders in the alternative that:

   ·the Court grant the child sole parental responsibility for all medical decisions concerning himself;

   ·the Court make a declaration pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”) that the child is competent to make his own decisions in relation to “Stage Two” treatment;

   ·the Court authorise the child to make his own decisions in relation to “Stage Two” treatment; or

   ·the Court authorise the applicant to consent to the administration of “Stage Two” treatment.

3. The applicant made an oral application to amend that application to include an order in the following terms:

   ·That upon the Court being satisfied that the child Julian born in 2001 is competent to consent to the medical treatment described in the Initiating Application filed 28 July 2017, the Applicant’s Initiating Application filed on 28 July 2017 is otherwise dismissed with a right to reinstatement upon the determination by the Full Court in the case stated of Re Kelvin [2017] FamCA 78 in the event that there are unresolved issues that require the determination of the Court.

Material relied upon

1. The applicant relies on the following material:

   ·Initiating Application filed 28 July 2017;

   ·Affidavit of the applicant filed 28 July 2017;

   ·Affidavit of Dr D, paediatrician, filed 28 July 2017;

   ·Affidavit of Dr G, senior clinical psychologist, filed 28 July 2017.

2. Rule 4.10 of the Family Law Rules 2004 (Cth) requires service of a Medical Procedure Application on the prescribed welfare authority, “the Department”. The Department by letter dated 31 July 2017 consents to the orders sought in the application and has indicated that it does not intend to take any part in the proceedings.

3. Mr P appeared on behalf of the State Legal service. However, at the commencement of the hearing, he indicated that having read the file material and met Julian, the State Legal service did not propose to make any application or submissions and did not seek any orders.

4. The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)). None of the witnesses were required for cross-examination and the matter proceeded by submission.

Background

1. Julian was born in 2001. He was removed from his biological mother’s care and placed in the care of the applicant. In 2004 a Permanent Care Order was made placing Julian in the applicant’s permanent care.

2. In 2013 Julian’s biological mother died. Julian did not have any contact with his father until approximately two years ago. In May 2017, the applicant says she advised Julian’s father of her intention to make an application to the Court in relation to Julian undertaking “Stage Two” treatment. He told her that he was supportive of that application. The father gave his consent to the application by way of a letter dated 22 June 2017.

3. The applicant in her Affidavit filed 28 July 2017 deposes that in early childhood Julian enjoyed typically male activities, such as camping and building, as well as female activities, such as playing with dolls. She further deposed that from the age of seven, Julian refused to wear dresses, resisted attempts to do his hair and had no interest in dressing up. Julian’s paediatrician Dr D notes in a letter dated 11 June 2016 that when Julian was young he identified as a girl, had predominantly female friends and had stereotypically female interests, while also being somewhat of a tomboy, enjoying physical activity and “rough housing.”

4. The applicant says that it is her wish that Julian is “happy and healthy” and she believes the proposed treatment will best allow Julian to live the life he wants as a productive and happy adult.

5. Julian has been under the care of Dr D since 10 June 2016, consulted Dr G, a senior clinical psychologist with the W Hospital, on one occasion in October 2016 and consulted child and adolescent psychiatrist Dr N on three occasions since 12 June 2016.

6. The applicant deposes that in or about July 2014 Julian was showing signs of depression and was cutting himself. Julian attempted to commit suicide in October 2014. Dr D in his report referred to Julian’s distress at the onset of puberty, the development of breasts and the subsequent onset of menstruation and said that although Julian said that he had tried to ignore this distress, this became associated with a deterioration in his mood and eventually his attempted suicide.  Subsequently “[Julian] decided to tackle his gender issues and began to learn about transgender issues online”. Dr D in his letter dated June 2016 described Julian as experiencing “...ongoing distress in relation to his breasts, which he binds.”

7. The applicant deposes that Julian told her in March 2014 that he identified as a male and that approximately two months thereafter he told the students and teachers at his school that he was a boy and since that time he has changed his name, wears male clothing and is treated at school as a male. The applicant also said that as a result of these changes, Julian appeared happier and more confident.  

8. Dr D outlines in his letter dated 11 June 2016 that while the applicant was initially doubtful, she is now very supportive as are most people he has informed, with the exception of his older adoptive sister.

9. Dr D also said in his letter dated 11 June 2016 that looking ahead Julian wants to masculinise his body with the use of testosterone, and eventually have a mastectomy and legally change his name and gender.

10. The Court does, if at all possible, give priority to applications such as this one. However, although the application listed before me was made on an urgent basis and Julian is said to be keen to commence treatment, the various reports relied upon in support of the application were all prepared in late 2016 or early 2017. The only explanation given for the delay was that it had been necessary to contact Julian’s father and obtain his consent. In my view this does not adequately explain the delay, particularly in circumstances where the medical evidence suggests that there is a risk to Julian’s mental health if the treatment is not carried out.

Legal Principles

1. Although the point was not taken before me, Bryant CJ in Re Alex [2009] FamCA 1292 addressed the question of the Court’s capacity to exercise its welfare jurisdiction pursuant to s 67ZC of the Act when, as in this case, it is the child’s guardian rather than a parent making the application. Her Honour concluded that the child’s guardian, in that case the Secretary of the Department of Human Services (as it then was) was in effect the child’s legal parent and that on that basis, the Court had the jurisdiction to hear the application brought by the legal guardian for a declaration authorising the guardian to consent to the treatment in that case. Her Honour did however also “leave open the possibility that had the matter been fully argued, as it was not in this case, a different conclusion might have been reached”.

2. In Re Jamie (2013) FLC 93-547 (“Re Jamie”) the Full Court considered whether Stage Two treatment is a medical procedure which lies outside the bounds of parental responsibility and requires the Court’s imprimatur pursuant to the welfare power in s 67ZC of the Act and considered the capacity of the child, the subject of the application, to consent to that medical procedure. The test of that child’s competence is what is referred to as Gillick competence and if the Court is satisfied that a child is Gillick competent, the Court has no further role in the determination as to whether Stage Two treatment should proceed. 

3. The term Gillick competence is a reference to the decision of Lord Scarman in in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (recognised by the High Court in Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218 (“Re Marion”) as part of the common law in Australia) where he said at pages 188 to 189 as follows:

   .. I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

4. In Re Jamie Bryant CJ said as follows at paragraphs 134-135:

   In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does. The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child is capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

   I see no basis for reading this down because the treatment is for childhood gender identity disorder. Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.

5. The decision of the Full Court in Re Jamie was that although a Gillick competent child could consent to Stage Two treatment, it remained a question for this Court to determine whether that child is Gillick competent.

Proposed Treatment and its Effects

1. Dr G and Dr N in their joint report referred to the possible long term physical, social and psychological effects on Julian of the testosterone treatment including:

   ·    Development of hair in the pubic area, armpits and beard area of the face

   ·    Changes in facial shape and appearance

   ·    Irreversible changing of the voice (growth of larynx and lengthening of vocal cords)

   ·    Muscle development

   ·    Increased oil production by the skin (which may result in acne)

   ·    Growth of the clitoris and an increased number of erections

   ·    Stopping the development of ova (eggs), with loss of fertility. This effect is said to be reversible if testosterone treatment is stopped

   ·    Stimulation of bone mineral density

   ·    Behavioural effects of increased assertiveness (sometimes aggression) and sexual desire

2. They also referred to the possible risks of the treatment including that if the dose of testosterone were increased too rapidly, Julian’s mood could be affected and he could become aggressive.

3. Dr D, when asked to identify the risks, if any, of the proposed testosterone  treatment said in his report that testosterone may increase the risk of:

   ·    Acne

   ·    Mood swings

   ·    Heart disease

   ·    Polycythaemia (increased red blood cells)

   ·    Liver problems and rarely malignant liver tumours

   ·    Thinning of the skin in the genital area (longer term)

4. He also said that these effects of the testosterone treatment were more likely if the person taking it smokes, is overweight, abuses alcohol and/or drugs, has high blood pressure, has a personal or family history of blood clots, has a personal or family history of heart disease and stroke or has a family history of liver cancer.

5. Both Dr G and Dr N in their joint report and Dr D said that the effects of the treatment on the ovaries and other female organs has not been extensively studied and are not well understood and that as the long term outcomes are still being studied, there may be other unanticipated effects.

6. Dr G and Dr N’s evidence as to the effects of the treatment and the risks associated with it was consistent with Dr D’s evidence. All three medical experts agreed that if Julian chose not to continue his testosterone treatment in the future, some of the effects of that treatment would not be reversible.

7. The medical experts also agreed that there is no other way of inducing the masculine changes in the body of a female other than by the proposed testosterone treatment and that if Julian did not receive the treatment, his emotional state would likely deteriorate, increasing the risk of depression, anxiety and self–harm. They all agreed that it would be in Julian’s best interests to commence Stage Two treatment and that the treatment “would help improve his mental state and maximise his emotional, social and educational potential by giving him the ability to live within a body that is more consistent with his gender identity”.

Assessment of Julian’s Gillick competence

1. The determination I am required to make in this case is not whether Julian should or should not commence Stage Two treatment, but whether Julian is competent to make his own decision. If I am satisfied on the balance of probabilities that Julian has a sufficient understanding and the intelligence to understand the proposed treatment and its effects, then the Court ceases to be involved.

2. Julian has been under Dr D’s care since June 2016 and as at 2 January 2017, when Dr D prepared his report, he had seen Julian on three occasions. Dr D said in his report as follows:

   [Julian] has been consistent in articulating his wish for testosterone treatment. We have had numerous discussions about the treatment and the risks and benefits that are known. This includes the risk of regret and impact on fertility. [Julian] engages in relevant discussion on the topic of testosterone and asks pertinent questions.

3. After seeing Julian for the second time on 12 August 2016 Dr D wrote in his notes as follows:

   [Julian] and [the Legal Guardian] are keen for [Julian] to commence testosterone once he turns 16 to help promote masculinisation of his body. The majority of the session was therefore spent discussing the potential use of testosterone in the future. Detailed information was provided by myself regarding mode of administration, mechanism of action, reversible and irreversible effects and the relevant pathways to accessing treatment, including the current need for Family Court approval and the access of pro bono legal assistance via […]. A written information sheet was provided and the opportunity for questions provided.

   As part of the above discussion, time was also spent outlining [Julian’s] future fertility options, given the possibility that testosterone would impair [Julian’s] ability to conceive children. Although [Julian] does not envisage wanting biological children of his own and would prefer instead to adopt a child in need given his own positive experiences in this regard, a recommendation for more in-depth fertility counselling with the Gynaecologists who work with our Gender Service was made, and both [Julian] and [the Legal Guardian] were happy to pursue this.

4. After their third session with Julian on 28 October 2016 Dr D wrote in his notes as follows:

   After spending the majority of our previous session discussing the potential use of testosterone in the future, the opportunity for further questions was provided. I also reviewed [Julian’s] understanding of testosterone therapy, and he displayed a reasonable grasp of its administration, likely benefits, and possible adverse effects. As at our previous session, [Julian] remains keen to commence testosterone and is currently considering when he might like to start. On the one hand, he is wondering whether it might be more convenient to wait until his secondary schooling is complete. On the other hand, he is keen to begin as soon as Family Court approval can be obtained and, with the Legal Guardian’s support, he appears likely to pursue the necessary legal approval.

5. Dr D concluded based upon his sessions with Julian as follows:

   I believe that [Julian] agrees to commencing Stage 2 treatment (testosterone) for gender dysphoria and my impression is that he is Gillick competent to make decisions in this regard. He has thought about taking testosterone for an extended period of time, and has consistently expressed this to me. He has also demonstrated that he is well aware of the effects of testosterone on his body, the possible risks, and the importance of prioritising his own health care.

6. Both Dr G and Dr N  reported that Julian was:

   …able to engage in sophisticated discussion around the issues of his gender identification, fertility preservation and the long term consequences of treatment both in terms of physical and psychological health and wellbeing, and limitations of Stage 2 treatment physically and psychologically/socially. He understands the benefits and possible side effects of treatment including the possibility of regret in the context of irreversible physical changes from testosterone treatment.

   It was their conclusion that Julian is Gillick competent. 

1. Dr G and Dr N, in response to a question from the applicant’s solicitor as to whether it was their understanding that the applicant agreed with the proposed treatment, said not only had she agreed but that she was “...well informed, works as a social worker involved with young people and has [Julian’s] best interests strongly at heart.” This is consistent with my assessment of the applicant’s evidence, which demonstrates a clear understanding of the issues Julian faces either with or without treatment, her concern for his welfare and ultimately her support for the treatment.

2. I am satisfied on the balance of probabilities, having had regard to the evidence of Julian’s treating medical practitioners and the applicant who is his legal guardian, that Julian has the necessary intelligence and understanding of the proposed treatment and is competent to make his own decision with respect to that treatment. On that basis, I propose to dismiss the application.

3. Although I do not propose to make a declaration that Julian is Gillick competent in circumstances were there have been differing views as to the Court’s power to make a declaration in these circumstances and there is a Case Stated to the Full Court (Re Kelvin [2017] FamCA 78), which may address that issue, I propose to dismiss the application with a right of reinstatement.

4. Given the sensitivity of the issues in cases such as these, the matter was heard in camera. I am also satisfied that I should make the orders the applicant seeks for the protection of Julian’s identity and the identity of all those involved in this case.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 August 2017.

Associate: 

Date:  18 August 2017