Re: Julian

[2015] FamCA 562

FAMILY COURT OF AUSTRALIA

RE: JULIAN [2015] FamCA 562

FAMILY LAW – CHILDREN – MEDICAL PROCEDURE – Where the applicants are the parents of a child diagnosed with Gender Dysphoria – where the applicants seek a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s treating medical experts and parents support the child commencing Stage Two treatment – assessment of whether 16-year-old child is Gillick competent to consent to medical treatment – finding that the child is competent to consent and authorised to make his own decision about Stage Two treatment.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60CB, 60CG, 67ZC, 68L, 69H(1) and 97(2)

Family Law Rules 2004 (Cth), r 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369
Re K (1994) FLC 92-461

Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

FIRST APPLICANT:   

The Mother

SECOND APPLICANT:   The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 17 July 2015

JUDGMENT OF: Thornton J

HEARING DATE: 26 June & 16 July 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders made 26 June 2015

IT IS ORDERED THAT

1. These proceedings be known by and referred to as ‘Re: Julian’. 

2. Leave be granted for the proceedings to be heard ‘in camera’.

3. The full name of the child … born … 1999 – now known and referred to as ‘Julian’ – Julian’s family members and their occupations, any medical practitioner and hospitals, Julian’s school and any staff at the school, the court file number, the State of Australia in which the proceedings were initiated, the names of the applicants’ legal representatives, any witnesses, and any other fact or matter that may identify Julian shall not be published in any way and only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number, lawyers’ names and details, as well as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.

4. Notwithstanding paragraph 3 of these orders each of the parties to these proceedings shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published thereunder with all of the identifying details which are otherwise excluded by paragraph 3 of these orders and such documents may be provided to the treating medical practitioners.

5. No person shall be permitted to search the court file in this matter without first obtaining the leave of a Judge of the Court.

6. The matter be listed for hearing before Justice Thornton on 16 July 2015 at 2.15 pm.

Orders made 17 July 2015

IT IS ORDERED THAT

1. Upon the Court being satisfied that the child … born … 1999 ("the child") is competent to consent to the medical treatment described in the Amended Initiating Application filed 14 July 2015, the Court authorises the child to make his own decision in relation to that treatment. 

2. The treatment described in the Amended Initiating Application filed 14 July 2015 is the administration of testosterone for the treatment of Gender Dysphoria (“Stage Two Treatment” and the “medical procedure”) in such manner and with such frequency as determined by and under the guidance of the child’s treating medical practitioners including but not limited to Dr T and Associate Professor P, together with any associated, additional, consequential or necessary procedure connected with the medical procedure.

3. The applicants be at liberty to provide a copy of the unanonymised orders and the unanonymised reasons for judgment to all persons involved with the child’s treatment.

4. The applicants’ Amended Initiating Application filed 14 July 2015 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

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).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order the File Number is suppressed

The Mother

First Applicant

And

The Father

Second Applicant

REASONS FOR JUDGMENT

Introduction

1. These are my reasons for making an order finding that Julian, aged 16, is competent to consent to his own medical treatment, commonly known as Stage Two treatment for Gender Dysphoria, in the form of testosterone hormone treatment.

2. Julian was born a female but has identified as a male since early childhood. He revealed to his parents that he is a boy in or about October 2013 and lives his social life as a young man. He has been diagnosed with Gender Dysphoria and wishes to undergo Stage Two treatment.

3. Julian’s parents brought an urgent application for a finding that Julian is competent pursuant to the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”) to consent to his own Stage Two treatment. As the parents of Julian, the applicants have standing to make this application.[1]

   [1] Family Law Rules 2004 (Cth), r 4.08(a).

4. Due to the sensitive nature of the subject matter of these proceedings, I made an order that the proceedings be conducted in camera pursuant to s 97(2) of the Family Law Act 1975 (Cth) (“the Act”). I also made the usual orders preserving Julian’s anonymity, which include not only protecting his given and chosen names, but also other information such as the names of the medical practitioners, lawyers and other professionals and entities involved.

5. There is no controversy about Julian’s diagnosis, his wishes or his competence to provide informed consent for his own medical treatment. Julian’s parents and his treating professionals, Associate Professor P and Dr T, support the application.

6. The application is essentially an application for determination by the Court as to whether Julian is competent to consent to his own Stage Two medical treatment for Gender Dysphoria.

The Law: “Gillick” Competence

1. The term “Gillick” refers to the English case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

2. In Marion’s case the High Court said that the view of the House of Lords in the Gillick case represented the common law in Australia. 

3. In Gillick, Lord Scarman recognised the underlying principle in the case law that parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind on the matter requiring decision.  Lord Scarman referred to the spirit and principle of the law captured by Lord Denning MR when he said that:

   The common law can, and should, keep pace with the times. In should declare … that the legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.[2]

   [2] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 129 (Lord Scarman), quoting Hewer v Bryant [1969] 3 All ER 578, 582 (Lord Denning MR).

4. In Gillick, Lord Scarman said at 188-189:

   … 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.

5. In Marion’s case, Mason CJ, Dawson, Toohey and Gaudron JJ, in discussing the Gillick principle enunciated by Lord Scarman, said as follows at 237-238:

   A minor is, according to [the Gillick] principle, 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”.

   This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.

   (References omitted).

6. In Re: Jamie the Full Court held that stage two treatment of gender dysphoria (administration of testosterone or oestrogen) was a medical procedure that required court authorisation, unless the Court found that the child was Gillick competent and thus able to fully understand and give informed consent to stage two treatment at the time it was to commence. The Full Court found that it was the Court’s responsibility to assess whether or not a particular child was Gillick competent.

7. In summarising her conclusion in Re: Jamie Bryant CJ relevantly said (inter alia) at [140]:

   …

   c)In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

   d)If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   e)The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

   (Original emphasis).

8. In that same case Finn J, whilst expressing reluctance to impose upon the child and his/her parents the costs and stress of further court proceedings, particularly when the Court may ultimately reach the same decision which the child and his/her parents had already reached with the child’s doctors, stated at [186]:

   Nevertheless, I have concluded that at least the question of the child’s capacity to consent to treatment which has the irreversible effects of stage two treatment must remain a question for the court. I have reached this conclusion because of the requirement by the High Court majority in Marion’s case for court authorisation for irreversible medical treatment in circumstances where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment and where the consequences of such a wrong decision are particularly grave, as they would be in this case.

9. Her Honour, in reaching that conclusion, took into account “the persuasive submissions” made on behalf of the Australian Human Rights Commission and the public authority “which support continued court involvement in decisions concerning stage two treatment”.[3]

   [3] Re: Jamie [2013] FamCAFC 110; 50 Fam LR 369, [187].

10. In the same case Strickland J agreed with the outcomes proposed by both the Chief Justice and Finn J and generally for the reasons set out by each of them. He stated at [196] :

    Whether the child is able to fully understand and give informed consent to stage two treatment… is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

Jurisdiction

1. This application is brought under Part VII of the Act.

2. Section 69H(1) of the Act provides that jurisdiction is conferred on the Family Court in relation to matters arising under this part.

3. Section 67ZC of the Act provides additional jurisdiction under Part VII of the Act to make orders relating to the welfare of children. It was inserted by an amendment to the Act in 1995 and reads:

   (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.

   (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.

4. Sections 60CB to 60CG of the Act deal with how the Court determines a child’s best interests.

5. The Court has power to make an order under s 67ZC of the Act to authorise medical treatment. In the circumstances of this case it is not necessary to do so because, for reasons set out below, I am satisfied that Julianis Gillick competent. 

Procedure

1. Counsel for the parents submitted that the appointment of an Independent Children’s Lawyer was unnecessary in the circumstances of the case. Section 68L of the Act allows for the appointment of an Independent Children’s Lawyer in proceedings under the Act in which a child’s best interests are, or a child’s welfare is the paramount, or a relevant consideration. It is a discretionary matter for the Court as to whether a child’s interests in the proceedings ought to be independently represented by a lawyer.

2. Having regard to all the circumstances of this case, including Julian’s age and the urgency of the proceedings, I agree with the submissions of counsel for the parents and am satisfied that the appointment of an Independent Children’s Lawyer is unnecessary. In Re K (1994) FLC 92-461 at 80,773 the Full Court issued guidelines as to the circumstances in which an Independent Children’s Lawyer should usually be appointed. One of the categories referred to in those guidelines was applications in the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties. In the circumstances of this case, I am satisfied that the child’s interests are adequately represented by the parents who are the applicants. I am fortified in that view by the evidence of the expert witnesses.

Service of the Application

1. The relevant Department and the relevant government Agency have been duly served with this application in accordance with Rule 4.10 of the Family Law Rules 2004 (Cth). An affidavit of service in respect of the Agency was filed on 2 July 2015 and an affidavit of service filed in respect of the Department on 3 July 2015.

2. At the hearing before me, counsel for the applicants tendered a letter dated 10 July 2015 from Department[4] and a letter dated 15 July 2015 from the Agency[5]. Both organisations indicated that it was not necessary to be heard or to participate in the proceedings.

   [4] Exhibit A

   [5] Exhibit B

Evidence and Standard of Proof

1. The rules provide that evidence may be given in the form of an affidavit or orally with the Court’s permission.[6] The documentary evidence relied upon for this hearing is listed in Annexure A to these reasons.  No witnesses were cross-examined and the case proceeded by way of submissions only.

   [6] Family Law Rules 2004 (Cth), r 4.09(3)

2. The standard of proof applicable is on the balance of probabilities under s 140 of the Evidence Act 1995 (Cth).

3. At [139] of Re: Jamie, Bryant CJ held that for an application with respect to Gillick competence, the material in support would not need to be as extensive as an application for the Court to authorise treatment. Her Honour stated that in the absence of some controversy, she could see no reason why any other party needed to be involved and that it would be an issue of fact to be determined by the Court on the material presented.  The other members of the Full Court either did not express a contrary view or expressed implicit agreement with the Chief Justice on this point.

The Nature of the Proposed Medical Treatment

1. Julian has had no need for Stage One treatment as it is designed to suppress periods, and Julian had not had periods in the two years preceding that medical advice.

2. It is now proposed that Julian commence Stage Two treatment in the form of testosterone administration. This is outlined in detail in the evidence of Dr T.

Gillick Competence

1. The evidence of Julian’s parents and treating doctors, Associate Professor P and Dr T, supports a finding that he is Gillick competent. That evidence is summarised below.

Evidence of the Parents

1. Both the applicant parents swore and filed affidavits in support of the orders sought.

2. The father’s affidavit unconditionally adopted and supported the evidence of the mother, and further supported testosterone administration in the terms proposed by Julian’s treating clinician from time to time.

3. I accept the unchallenged evidence of the mother who deposed to the following matters regarding her observations of, and contact with, Julian.

4. Julian has experienced his gender to be male since early childhood, displaying behaviours such as destroying dolls instead of playing with them, and choosing loose-fitting male-coded clothes including boys’ underwear. He wore baggy jumpers from the age of 11 to hide his breast development and started wearing binders from the age of 14. He played in the boys’ football team from the age of six but was required to play in the girls’ team from the age of 14 and discontinued it because he felt uncomfortable.

5. Julian revealed to his parents that he was a trans boy in October 2013, at the age of 14. He has since made a full social transition to the male gender.

6. Julian has behavioural and psychological issues. Julian has had separation anxiety and social anxiety since the age of approximately nine or 10; was diagnosed with Oppositional Defiance Disorder at the age of 10; and was identified as being on the spectrum of Asperger’s syndrome around the ages of 13 or 14 after being assessed by the X Hospital.

7. Julian has also frequently shown anger and aggression. He has previously told the mother about self-harming and the mother has seen marks on his arms. Approximately two years ago, he attempted suicide by drug overdose and later told the mother that he had researched the effects of that drug and knew it was slow-acting. He saw a psychologist at the time.

8. Julian attended different schools from a young age due to his parents’ career moves and has not attended school since the beginning of 2014 because of issues with defiance. He was enrolled in Distance Education from 2013 to 2014, but expresses a desire to return to school and is currently considering enrolling in an appropriate TAFE course.

9. Julian is considering a career in correctional services or as an artist. The mother observes that his art is an outlet for him.

10. As to Julian’s treatment, the mother deposes that she and Julian were told in 2014 that Stage One treatment in the form of puberty blockers was not required. The primary purpose of that treatment was to prevent periods and Julian had not experienced a period for two years due to weight issues.

11. The mother deposes that Julian has expressed a desire to commence Stage Two treatment immediately, because he wishes to undergo a double mastectomy upon turning 18 years.  She deposes that she believes it is in Julian’s best interests to undergo that treatment and that:

    We also understand the risks that are involved, including an unknown risk regarding the development of ovarian cancer as well as the possibility that [Julian] will be unable to have children in the future. There is some risk that [Julian] may regret his choice to have the treatment, if it is permitted, in the future however [his father] and I, together with [Julian’s] treating medical practitioners, feel strongly that [Julian] has gender dysphoria and identifies as male and that any regret in having the treatment would be minimal, if any.

    She deposes that she has had “lengthy discussions about the potential impact that the treatment may have on his ability to have children in the future. Julian clearly understands the potential for loss of fertility that the treatment may bring and understands the gravity of the treatment.”  The mother deposes that Julian is “an intelligent boy who has been actively involved in his treatment and we believe is fully aware of what is involved and is keen to commence the treatment as soon as possible.”

1. The mother deposes that it is her belief that if Julian is unable to commence the proposed testosterone treatment his emotional state will deteriorate and the risk of him self-harming or attempting suicide would increase.

2. The mother deposes that having regard to the advice of the professionals treating Julian that it is anticipated that his anxiety and depression should improve with the treatment, given that his gender dysphoria contributes to his low mood and social difficulties.  The mother believes that stage two treatment will enable Julian to have a better quality of life, in that it will give him more confidence to enrol in TAFE and socialise with others.

Evidence of Associate Professor P

1. Associate Professor P is a consultant child and adolescent psychiatrist with 34 years of practice at the hospital where Julian is to be treated. He deposes to working with over 100 young people with gender developmental needs. He has seen Julian approximately six times since January 2014 and prepared a report dated 2 June 2015 in support of the application.  I accept the expertise of Associate Professor P and I accept his unchallenged expert evidence in the terms that follow.

2. Associate Professor P deposes that Julian meets the diagnostic criteria of Gender Dysphoria pursuant to the DSM-V, previously known as Gender Identity Disorder under the DSM-IV, and considers that he has the capacity to make an informed decision about testosterone therapy.

3. Associate Professor P deposes to Julian’s history of significant behavioural problems and a short admission to the Z Hospital child mental health unit in July 2013. His symptoms were reported to be consistent with a mixed mood disorder with anxiety and depressive symptoms, school avoidance and Oppositional Defiant Disorder in the context of family conflict. At the time of consultation, Julian had no perceptual or hallucinatory disorders, though he reported nightmares and disturbed sleep patterns.

4. Julian is significantly overweight and is exercising with his mother. He otherwise spends most of his time at home.

5. Julian is reported to find his female body parts distressing. He has expressed a desire to have his breasts and ovaries removed, and he has been consistent and insistent in seeking treatment over the consultation period. Julian has given some thought to have a penis operation when he is much older, albeit he is cognisant of the risks attached to that procedure at this point in time.

6. Julian would like all his personal identity documents to acknowledge that he is a boy. He would like to have a girlfriend and eventually a wife, and have the care of children although he knows he will not be able to bear children himself.  

7. Associate Professor P deposes to seeking a second medical opinion from Dr S, consultant child and adolescent psychiatrist, in September 2014. He confirmed the diagnosis of gender dysphoria and otherwise reported that Julian had neither psychotic features nor major mood disorder.

8. Associate Professor P adopts the treatment proposed by Dr T. He agrees with the effects and risks of testosterone administration to which Dr T deposes. He observes that without testosterone administration, Julian will be disturbed in achieving developmentally appropriate personal goals and become more socially isolated, putting him at high risk of self-harm and suicide.

Evidence of Dr T

1. Dr T works as a subspecialist Adolescent Physician at the Gender Dysphoria Service of the X Hospital. She has worked in paediatrics since 2003, for the most part in this State. Dr T prepared a report dated 8 May 2015 in support of the parties’ application.

2. I accept the expertise of Dr T and her unchallenged expert evidence in the terms that follow.

3. Dr T’s opinion is that Julian is competent to make an informed decision about testosterone administration.  She proposes to treat him according to the following schedule:

   ·Intramuscular injections of testosterone enanthate in doses of 0.5mL (125 mg) monthly

   ·After 6-12 months, increase of the testosterone dosage to 1 mL monthly

   ·At a later stage, injections of long-acting Reandron 1000 every three months over the long term

4. Dr T deposes to the following effects of testosterone:

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

   ·Changes in facial shape and appearance

   ·Irreversible changing of the voice, due to growth of the larynx and lengthening of the vocal chords

   ·Muscle development

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

   ·Growth of the clitoris

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

   ·Stimulation of bone mineral density

   ·More assertiveness (sometimes aggression) and sexual desire

5. Dr T observes that the treatment has the potential to improve the symptoms of Julian’s psychological issues, such as his depression, anxiety, self-harm, suicidal ideation and attempts, and behavioural concerns.

6. Dr T set out the risks of testosterone therapy upon Julian in the following ways:

   ·Julian could become aggressive if testosterone dosages are increased too rapidly;

   ·there is a currently unknown risk of ovarian cancer if Julian’s ovaries are not removed; and

   ·there is a risk of regret if Julian later changes his mind about testosterone and some physiological changes are found to be irreversible.

7. As to the risk of aggression, Dr T’s treatment proposal included follow-up consultations to ensure that treatment is proceeding according to plan.

8. As to the risk of ovarian cancer, Dr T specified that there were no conclusive studies establishing or negating the risk, and that Julian can elect to consult with a gynaecologist for check-ups should Julian retain his ovaries. In any case, Julian has expressed a desire for bilateral oophorectomy.

9. As to the risk of regret with regard to irreversible physiological changes, Julian has affirmed his male gender from early childhood and is reportedly highly unlikely to change his mind.

10. Dr T deposes that there is no way to masculinise the body other than by administering testosterone.

11. Dr T reports that Julian has read the pamphlet information available at the Hospital and has asked appropriate questions about the proposed treatment. She deposes that Julian was aware that one of the options for transitioning is to do so socially without utilising hormonal treatment. However she records that Julian expresses that this will not be tolerable for him as the incongruence between his gender identity and his physical appearance causes significant distress. She noted that Julian had a background knowledge of hormonal options and their physiological effects after researching these topics via the Internet of his own accord. She noted that 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. She deposes that Julian understands the consequences and risks of treatment which include the risk of regret and possible infertility.  It is on the basis of this understanding that she considers Julian to have the capacity to consent to his own treatment.

Findings and Conclusion

1. I accept the unchallenged evidence of the expert witnesses and Julian’s parents and note that the treating professionals are supportive of the application. Julian has demonstrated the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible.  His views are clear and have not changed.  I am satisfied that the risks have been explained in detail, researched by Julian and understood by Julian.

2. On the basis of all of the evidence, I am satisfied on the balance of probabilities that Julian is competent to fully understand the nature and consequences of the treatment described in the application and to make his own decision in relation to that treatment. Julian is in the transition phase from childhood to adulthood referred to in the Gillick case and is competent to consent to treatment.  

3. I am satisfied that it is appropriate to make a finding that Julian is competent to consent to the medical treatment described in the Amended Initiating Application being Stage Two treatment for Gender Dysphoria as generally described in the written minute prepared and submitted by counsel for the applicants at the hearing.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 17 July 2015.

Associate: 

Date:  17 July 2015

Annexure A

Documents Relied Upon by the Applicant Parents:

• Amended Initiating Application filed 14 July 2015;

• Affidavit of the Mother filed 22 June 2015;

• Affidavit of the Father filed 22 June 2015;

• Affidavit of Dr T (paediatrician) filed 23 June 2015;

• Affidavit of Associate Professor P (Consultant Child and Adolescent Psychiatrist) filed 22 June 2015;

• Affidavit of service in respect of the relevant government Agency filed 2 July 2015;

• Affidavit of service in respect of the relevant government Department filed 3 July 2015;

• Exhibit A – Letter dated 10 July 2015 from the Department; and

• Exhibit B – Letter dated 15 July 2015 from the Agency.