Re: Kelly
[2022] FedCFamC1F 380
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Kelly [2022] FedCFamC1F 380
File number: By court order the file number is supressed Judgment of: MCGUIRE J Date of judgment: 2 June 2022 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Gender Dysphoria – Where the child seeks Stage 1 hormone treatment – Where the child is Gillick competent – Where the child’s medical practitioners and mother support the treatment – Where the father has not provide consent for the treatment and not participated in the proceedings – Where the child and her sibling have not communicated with or seen the father for some time – Where the mother seeks sole parental responsibility – Where the mother also seeks to formally change the child’s name – Where the Court found that it was in the best interests of the children for the mother to have sole parental responsibility, for the child to undergo Stage 1 hormone treatment and for the child’s name to be changed Legislation: Family Law Act 1975 (Cth) s 67ZC Cases cited: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Imogen (No.6) (2020) 61 Fam LR 344
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 23 May 2022 Legal Representation: By court order the names of the legal practitioners are suppressed ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.By consent of the mother and the Independent Children’s Lawyer, and undefended the father, the mother be authorised to sign all documentation as is necessary to vary the birth certificate of the child Charlie born 2009 to the effect that the child be formally known and recorded as Kelly born 2009.
UNTIL FURTHER ORDER
2.The mother have sole parental responsibility for the children Kelly born 2009 and Y born 2010 (‘the children’).
3.The children live with the mother.
4.These orders act as authority to enable the commencement of Stage 1 Hormone Blocking Treatment for the child Kelly born 2009 (formerly known as Charlie).
5.The mother be and is hereby authorised to sign all documentation as is necessary in relation to order 4 hereof.
6.The children spend time with the father as agreed between the parents.
7.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
8.These proceedings be listed for mention and directions in the Federal Circuit & Family Court of Australia before Justice McGuire.
9.The parties or either of them and the Independent Children’s Lawyer have liberty to apply, if necessary, on short notice.
10.The full name of the child Kelly, her family members, her hospital, her medical practitioners, her school, this Court’s file number and any Court Child Expert, the state of Australia in which these proceedings were initiated, the name of Kelly’s parents’ lawyers’, and any other fact of matter that may identify Kelly, shall not be published in any way, and only anonymised Reasons for Judgment and orders (with cover sheets excluding the Registry, file number, and lawyer’s names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of this Court, with it being noted that each party shall be provided with 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 number and lawyers’ names.
11.The mother be at liberty to provide a copy of the un-anonymised orders and un-anonymised reasons for judgment to all persons involved in Kelly’s treatment.
12.No person, other than the parties and their solicitors shall be permitted to search the Court File in this matter without first obtaining the leave of the Court.
13.The solicitors for the mother cause a copy of these orders to be served by ordinary-pre-paid post at the last known residential address of the father or alternatively, if appropriate by email.
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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Re: Kelly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE
APPLICATION
The mother is the applicant in general parenting proceedings in respect of the two children namely Charlie (a.k.a. Kelly) born 2009 (age 13 years) and Y born 2010 (age 11 years).
The mother commenced proceedings in an application filed 14 March 2022 seeking the following orders:
1.All time limits will be bridged to enable this application to be heard urgently.
2.The Mother will have sole parental responsibility for the children, Charlie born 2009 (known as Kelly) and Y, born 2010.
3.Further, or in the alternative to paragraph 1 above, (sic) pursuant to section 67ZC of the Family Law Act 1975 (Cth), the proposed Stage 1 (hormone blocking) treatment of Kelly, in such manner and with such frequency as defined by her treating medical practitioners, is authorised by Order of this Court.
4.Further, or in the alternative to paragraph 1 above, (sic) the Mother is authorised to change the name on [Charlie’s] birth certificate to Kelly, and the Mother is granted leave to provide a copy of this Order to the Registry of Births, Deaths and Marriages in support of the registration of that change of name.
5.The children will live with the Mother.
6.The children will spend time with the Father as agreed between the parents, subject to the children's wishes.
7.Such further or other Orders as the Court considers appropriate.
Given the subject matter of the application and its asserted complexity, the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia by order of the 15 March 2022. The respondent father appeared in person before a judicial registrar on 25 March 2022 and was ordered to file a Notice of Address for Service. He has not done so. He has not otherwise formally participated in these proceedings. By order of the 22 April 2022 an Independent Children's Lawyer was appointed for the children.
The matter was listed for interim hearing before me on 23 May 2022 and primarily in respect of the child Kelly commencing Stage 1 (hormone blocking) treatment. The issue of the change of name for ‘Kelly’ was also agitated at that time.
In circumstances where the primary issue is in respect of gender dysphoria in the child born Charlie but where the child has for some time and by choice been known as Kelly then in these Reasons I will refer to the child as ‘Kelly’.
The mother relies on her affidavit sworn 28 February 2022 and an affidavit of Dr C sworn 13 May 2022. The Court also has the benefit of comprehensive case outlines from both the mother's solicitors and the ICL.
RELEVANT BACKGROUND
The parents began a relationship in September 1998 and separated in February 2015. The parents were not married.
The mother has obtained a family violence order against the father.
The mother deposes at [8] of her affidavit that the father does not accept Kelly’s gender identity issues and has failed to maintain a relationship with Kelly since separation. He refuses to reference Kelly by her chosen name but continues to refer to her as 'Charlie'. There have been lengthy periods of no communication between the father and Kelly.
Kelly suffers a diagnosis of autism.
The mother deposes at [9] of her affidavit:
I have encouraged Kelly to remain in contact with [the father] since separation, however, Kelly is generally reluctant to spend time with him as he is hostile towards her and unaccepting of her gender identity. Often, when I would try to speak with [the father] about Kelly's autism or gender identity, [the father] would simply not respond or ignore my comments altogether.
The mother deposes that the father has also failed to maintain a consistent and meaningful relationship with the child Y.
The mother lives at Town B in State K. The father lives in Town J which is approximately half an hours travel from the mother’s home.
The mother deposes that Kelly has undertaken the necessary screening process for transgender children and been formally diagnosed by H Medical Service as having gender dysphoria and that Medical Service have confirmed Kelly as having the ability to consent to the first stage of treatment.
The mother says that Kelly needs to commence hormone blocking treatment prior to her entering into male puberty. The mother deposes, and there being supportive professional evidence, that the blocking treatment is “completely reversible”.
The mother says that Kelly is a patient of the I Centre (gender clinic) and has consulted with a specialist gender paediatrician at that clinic, Dr C.
The mother deposes that on 1 September 2021 she sent a detailed message to the father explaining Kelly’s consultations with a paediatrician, Dr D, in respect of gender therapy. The mother explained in detail the gender therapy process. She deposes to receiving a text message in response from the father saying “never read goodbye”. Nevertheless, the father, after a request from Kelly, did ask for the names and contact details for Kelly’s counsellor and doctor such were subsequently provided by the mother. The father has since ceased communications including not responding to an attempt by Dr C to speak to the father.
The father has not positively consented to Kelly commencing treatment.
The mother deposes to advice from Dr C that hormone blocking treatment for Kelly should commence immediately so as to prevent entry into male puberty and where Kelly herself has expressed significant distress at the idea of entering male puberty.
Kelly herself has attempted to contact her father to obtain his consent to treatment. She has not received a positive response.
The mother deposes that she has concerns that Kelly may attempt to self-harm after expressing to her father that she would kill herself if he did not to consent to her treatment.
The mother deposes that Kelly has identified as female since about two years of age. She has consistently wanted to wear female clothing.
Kelly was diagnosed with Asperger’s syndrome at three years of age.
Kelly has always identified and been treated as female at her school. The school are aware of Kelly’s gender identity and have been supportive as for instance Kelly being able to use female bathrooms. From nine years of age Kelly has chosen and been known as ‘Kelly' including at school and socially.
The mother deposes that she has taken care not to encourage or prompt Kelly in any way in respect of her gender identity but that the initiatives have at all times come from Kelly who initiated discussions in respect of the transition.
The mother deposes that Kelly finds official documents referencing her birth–name of Charlie to be distressing and confusing as for instance when utilising the recent COVID-19 vaccination material.
Both Kelly and her younger sibling Y have been diagnosed with autism/Asperger’s syndrome but present with different symptoms. Kelly is more social than Y who was described as “happiest with his own company”.
Kelly has spent no direct time with her father since October 2020 which was a short visit of only a couple of hours duration.
The mother deposes at [56] that Kelly has a very clear and consistent wish to be a girl and to commence the transition process.
Dr C provides an assessment by way of response to particular questions. Dr C is a paediatrician of more than 40 years clinical experience. Dr C deposes to having consulted with Kelly since October 2021 and with further assessments including by other clinicians such as a psychiatric assessment by Dr E and counselling with Dr F and Dr G.
Dr C deposes that Kelly meets the criteria for gender dysphoria and such has been diagnosed by Dr E, the child and adolescent psychiatrist.
Dr C deposes that Kelly has undertaken a comprehensive psychiatric assessment and had a fertility preservation counselling session. She deposes to puberty blockers being the next step with the use of medication to suppress puberty.
Dr C deposes that Kelly is at risk of significant psychological distress if timely intervention with puberty suppression is not commenced at the onset of pubertal changes.
Dr C deposes that the effects of puberty suppression are reversible.
Dr C notes that Kelly herself–identified as a female since the age of two, has done so consistently, and has socially transitioned to identifying as a female.
Dr C affidavit annexes Dr E’s psychiatric assessment of Kelly.
The assessment notes Kelly’s father as not supportive of her and where Kelly has suffered some “transphobic bullying”.
The assessment reveals Kelly as never feeling satisfied being a boy and has never felt uncertain about her gender. She has consistently identified as a girl. She voluntarily changed her name when in Grade 3 and has requested female pronouns from Grade 1.
In the assessment Kelly denied any anxiety or mood symptoms but reported suicidal distress.
CONSIDERATION
This is an application pursuant to s 67ZC of the Family Law Act 1975 (Cth) (‘the Act') which provides generally that the Court has jurisdiction to make orders regarding the welfare of children where in doing so it must have regard to the best interests of the child as the paramount consideration.
Where the mother has been unable to obtain the formal consent of the father to a Stage 1 treatment for Kelly then it is entirely proper that the mother has brought an application to this Court in the alternative that she have sole parental responsibility for Kelly asking that the Court make a prescriptive order for Stage 1 treatment.
Gender Dysphoria concerns the clinically significant distress or impairment experienced in a person desiring to be of another gender where there is incongruence between their gender identity and the gender assigned at birth.
Treatment is informed by the Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children with Stage 1 treatment known as “puberty suppression” in the form of medication halting progression of physical changes from entering puberty. Such are reversible.
Stage 2 pursuant to the Australian Standards involves gender affirming hormone treatment with some effects being irreversible.
The Australian Standards provide for Stage 3 to involve surgical intervention.
Watts J in Re: Imogen (No.6) (2020) 61 Fam LR 344 provided a helpful and comprehensive summary of the legal principles and pathway at [28] - [34]:
28.In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”), the High Court of Australia held that at common law and under the Family Law Act 1975 (Cth) a parent generally has power to consent to medical treatment of their child, but adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed (at 237 per Mason CJ, Dawson, Toohey and Gaudron JJ). This capability has become known as “Gillick competence”.
29.In Marion’s case, the High Court at 250-252 drew a distinction between “therapeutic” and “non-therapeutic” procedures finding that non-therapeutic medical procedures and particularly those which in combination:
a)Require invasive, irreversible and major surgery;
b)Involve a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
c)Where the consequences of a wrong decision are particularly grave,
required court approval notwithstanding the consent of a Gillick competent child, of the child’s parents and the treating medication practitioners.
30.There is a controversy in this case as to what Re Jamie (2013) FLC 93-547 and Re Kelvin (2017) FLC 93-809 (“Re Kelvin”) have decided about cases where there is dispute about consent or treatment. However as a starting point, the following is clear.
31.The Court has jurisdiction and power to determine a dispute, disagreement or controversy about consent by making an order or declaration as to Gillick competence under the welfare jurisdiction (s 67ZC of the Act); a parenting order (s 65D(1) and s 64B(2)(i) of the Act) or an order using the general powers conferred by s 34(1) of the Act (see Re Kelvin at [66]) including an order dismissing an application made under any of those sections. The Court has jurisdiction and power to determine a dispute, disagreement or controversy about treatment by making an order or declaration under the welfare jurisdiction or a parenting order.
32. In Re Jamie the Full Court determined:
a)Stage 1 treatment was to be regarded as therapeutic. Stage 2 treatment fell within the ambit of Marion’s Case because there was significant risk of the wrong decision being made as to the child’s capacity to consent to treatment and the consequences of such a wrong decision would be particularly grave (this conclusion was reversed in Re Kelvin), and
b)In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there was no need for the Court to determine Gillick competence. A Gillick competent child can consent to stage 1 treatment and if the child is not Gillick competent, that child’s parents may consent, without court intervention, and
c)In respect of stage 2 treatment, the Court is required to determine Gillick competence or otherwise authorise treatment (this was reversed in Re Kelvin).
33. In Re Kelvin, the Full Court determined that:
a)Given the current state of medical knowledge, stage 2 treatment was therapeutic and was treatment for which consent no longer lies outside the bounds of parental authority or requires the imprimatur of the court (reversing the position in Re Jamie), and
b)In respect of stage 2, if the child, the parents and the medical practitioners agree a child is Gillick competent, there was no need for the Court to determine Gillick competence (reversing the position in Re Jamie), and
c)If all agree, a Gillick competent child can consent to stage 2 treatment, and
d)If a child is not Gillick competent and the treating medical practitioners agree, the child’s parents can consent to stage 2 treatment without court approval.
34.For the sake of completeness, if all agree, the law is the same for stage 3 treatment and there is no necessity for this Court to determine whether the subject child is Gillick competent before stage 3 treatment for Gender Dysphoria can proceed (see Rees J in Re Matthew [2018] FamCA 161 at [46]).
Where Kelly’s best interests are my fundamental focus I note Kelly’s own wish to commence Stage 1 transition treatment. I find on the evidence that the initiative has come from Kelly where the mother has remained objective and refrained from inappropriate influence or prompting of Kelly.
Dr C from the I Centre (gender clinic) considers Kelly to meet the criteria for gender dysphoria. Kelly has consulted with Dr C, undertaken a comprehensive psychiatric assessment together with the appropriate fertility preservation counselling and where the psychiatric assessment discloses no other physical or psychological conditions in Kelly impacting on her self-identification.
The evidence is that Kelly is informed and mature in expressing a rational view as to her gender dysphoria and appropriate treatment such that would satisfy the Court if necessary as to “Gillick Competence”.[1]
[1] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
I find that Kelly has identified as female since a young age and has socialised as such consistently and remains committed to this gender identification.
The father has not given formal consent to gender dysphoria treatment for Kelly. Nevertheless, he has not participated in these proceedings to show a lack of consent or objection and I generally accept the evidence of the mother and submissions by her counsel that the father is ambivalent to the process consistent with a lack of commitment to a meaningful relationship with Kelly and her sibling.
It is noted that Kelly has met with the Independent Children's Lawyer who supports the orders sought by the mother and where Kelly has unequivocally and unambiguously expressed to the Independent Children's Lawyer a desire to live and be identified as female.
I am satisfied that the mother has a demonstrated capacity and insight in respect of the complex physical and emotional needs of Kelly.
I accept the medical opinion that an early commencement of Stage 1 treatment is appropriate given the anticipated onset of puberty for Kelly and again noting that the effects of such treatment are reversible.
In all of these circumstances I am satisfied that Kelly’s best interests are served by her entering into Stage 1 treatment in respect of gender dysphoria and that the mother have sole parental responsibility accordingly.
More generally in respect of the interim orders sought I am satisfied that the mother should in the interim have sole parental responsibility for each of the children. The father has not participated in these important proceedings. I accept the evidence of the mother and the Independent Children's Lawyer as to the general ambivalence of the father in respect of issues of parenting responsibility and generally as to a relationship with each of the children. I note that the contact and communication between the father and the children is sporadic and minimal.
There are issues of family violence in the background of this matter with the mother having obtained Family Violence Orders. In all of those circumstances I am of the view that the best interests of the children are served by the mother having sole parental responsibility at least in the interim and where the father has the opportunity, therefore, to participate in the furtherance of these proceedings.
It follows on from the above that there should be an order in the interim for the children to live with the mother and to spend time with the father as agreed between the parents and in circumstances where I am satisfied that the mother has previously encouraged and facilitated the relationship between the children and the father.
Finally, the mother seeks an order, ostensibly in the interim, that she be authorised to sign all documentation necessary to vary Kelly’s birth certificate from the reference to “Charlie born 2009” to “Kelly born 2009”. I note that the mother’s application does not attend to the child's surname but rather only to Christian names. There is strong evidence that the child has historically identified as 'Kelly' for a considerable period of time and the use of the name 'Kelly' was at the behest of the child. I am satisfied that the use of such name is obviously more sympathetic to the identification by the child as female.
There is some evidence before me that the father has refused to accede to the child’s wish to be known socially as “Kelly” and has insisted on the use of “Charlie”. In my view, and without hearing further from the father, this could only cause further distress and anxiety for the child.
In all of those circumstances, I am satisfied that it is appropriate to make the orders sought by the mother that she be permitted, without the consent of the father, to authorise a variation of the birth certificate such that the child be formally known as “Kelly born 2009”. In such circumstances it would not, in my view, be appropriate for such an order to be made in the interim where an amendment to official documents is required. As such the order will be by way of a final order but one obviously made undefended the father.
As indicated to counsel for the mother and the Independent Children’s Lawyer these Reasons follow the making of ex tempore orders where the medical evidence suggests some immediacy in commencing treatment for Kelly and where, of course, I expect that Kelly might be awaiting such orders with anticipation.
In anticipation of further Court intervention being required in respect of Stage 2 gender dysphoria treatment for Kelly in the absence of the consent of the father, I have further listed this matter for mention before me.
There will be an order that the solicitors for the mother cause a copy of these orders to be served on the father by ordinary prepaid post to his last known place of address.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 2 June 2022