Re: Kelly

Case [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…

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AGLC
Re: Kelly [2022] FedCFamC1F 380
Case
[2022] FedCFamC1F 380
Decision Date

CaseChat Overview and Summary

In the case of Re: Kelly, the Family Court of Australia was asked to determine whether the mother could proceed with Stage 1 treatment for their child, Kelly, who had been diagnosed with gender dysphoria. The father had refused to consent to this treatment, which involved hormone blocking therapy to prevent the onset of male puberty. The mother sought an order under the Family Law Act 1975 to allow her to proceed with this treatment without the father's consent. The key legal issues before the court were whether Kelly was Gillick competent, and if not, whether the court should make an order permitting the treatment to proceed in Kelly's best interests. The court considered the Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children, which classify treatments into stages, with Stage 1 being reversible and therapeutic.

The court examined the affidavits of the mother and Dr. C, as well as case outlines from both parties. The mother provided evidence of Kelly's distress at the prospect of entering male puberty and the need for immediate treatment. Dr. C supported the mother's position that Stage 1 treatment should commence immediately. The court also considered previous cases such as Re: Imogen, Re: Jamie, and Re: Kelvin, which dealt with similar issues of consent for medical treatment related to gender dysphoria. The court acknowledged the evolving understanding of gender dysphoria treatment, particularly with respect to Stage 2 treatment, which was previously considered non-therapeutic but is now viewed as therapeutic.

The court found that Kelly was not Gillick competent, meaning she did not have the capacity to fully understand and make an informed decision about the proposed treatment. Despite this, the court was satisfied that the treatment was therapeutic and in Kelly's best interests. The court noted the father's lack of engagement and refusal to consent, as well as Kelly's significant distress and the urgency of the situation. Ultimately, the court granted the mother's application, allowing her to proceed with the Stage 1 treatment without the father's consent. The court's decision was based on the welfare and best interests of Kelly, taking into account the medical evidence and the potential harm of delaying treatment.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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; andc)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), andb)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, andc)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]).