Re: Kelly (No 2)
[2024] FedCFamC1F 776
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Kelly (No 2) [2024] FedCFamC1F 776
File number: By court order the file number is supressed Judgment of: MCGUIRE J Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – CHILDREN - MEDICAL PROCEDURES – Gender Dysphoria – Where the child currently takes Stage 1 hormone treatment and wishes to move to Stage 2 treatment – Where the child is Gillick competent – Where the child’s medical practitioners and mother support the treatment – Where the father has not provided consent for the treatment and has not participated in the proceedings – Where the child has not communicated with or seen the father for some time – Where the child’s sibling has had sporadic and minimal contact with the father – Where the mother seeks sole decision making and parental responsibility for the children – Where the Court found that it was in the best interests of the children for mother to have sole decision making and parental responsibility for the children and for the child to undergo Stage 2 hormone treatment – Orders that children live with the mother – Orders that the children spend time with and communicate with the father as agreed between the parents from time to time Legislation: Family Law Act 1975 (Cth) Cases cited: Re: A [2022] QSC 159
Re: CD [2024] VSC 456
Re: G4 [2021] FCWA 102
Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110
Re: Kelvin (2017) FLC 93-809; [2017] FamCAFC 258
Bell v Tavistock [2021] EWCA Civ 1363
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 11 September 2024 Legal Representation: By court order the names of the legal practitioners are supressed 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:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.This matter proceed to final hearing undefended the father.
2.The mother have sole decision-making parental responsibility in relation to the children Kelly born 2009 and Y born 2010.
3.The mother, in relation to Kelly, to the exclusion of the father, be enabled to make decisions for major long-term issues specifically with respect to providing necessary parental consent for Stage 2 treatment for Gender Dysphoria.
4.The children Kelly and Y live with the mother.
5.The children spend time with and communicate with the father as agreed between the parents from time to time.
6.The Independent Children’s Lawyer cause the father to be served with a sealed copy of these orders by ordinary mail to his last know residential address.
7.The appointment of the Independent Children’s Lawyer be discharged following a period of two (2) months from the date of these orders.
8.Liberty be given to the mother to provide copies of the report and assessment of Dr L dated 8 September 2024 to any medical practitioners or health care professionals consulted by or for Kelly.
9.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 not 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.
10.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.
11.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.
IT IS DECLARED
A.The child Kelly born 2009 is Gillick competent to consent to Stage 2 treatment for the condition Gender Dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders [DSM-5].
B.Given the Gillick competence of Kelly and the urgency in proceeding with Stage 2 procedure noted by Kelly’s health professionals and where Justice McGuire will be on leave for approximately six (6) weeks from the date of this hearing, then the Court has made these orders on the basis of, and with the consent of counsel for the mother and the Independent Children's Lawyer, with a view to formal comprehensive reasons being taken out at a later date and provided to all parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
APPLICATION
These are parenting proceedings in respect of two children namely Kelly born 2009 and Y born 2010.
The mother is the applicant. The father no longer participates in the proceedings and hence the matter was heard undefended the father. The Independent Children’s Lawyer supports the mother’s application.
On the 23 May 2022 (amended 2 June 2022), I made an order undefended the father as follows:
…. 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.
The primary, but not sole, issue in this matter has been the orders in respect of the Gender Dysphoria for Kelly.
Also on the 23 May 2022 I made interim orders as follows:
2.The mother have sole parental responsibility for the children Kelly born 2009 and Y born 2010.
3. The children with the mother.
4.These orders act as authority to enable the commencement of Stage 1 Hormone Blocking Treatment for 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.
The mother now seeks final orders as follows:
(a)The mother have sole parental responsibility for the children;
(b)Pursuant to s 67ZC of the Family Law Act (1975) (Cth), these orders act as authority to enable the commencement of Stage 2 Gender Affirming Hormone treatment for Kelly;
(c)The children live with the mother; and
(d)The children spend time and communicate with the father as agreed between the parties.
The mother relies on her affidavits of 13 May 2022 and 8 September 2024.
The mother also relies on an affidavit of Dr C of 13 May 2022, Dr C is a paediatrician. She has been employed at M Hospital for over a decade. She has consulted with Kelly since October 2021. She annexures to her affidavit a comprehensive report in respect of her professional relationship with Kelly. The ICL supports the orders sought by the mother. She relies on the following: -
(a)Report of Dr C dated 9 May 2022;
(b)Report of Dr E, child and adolescent psychiatrist/family therapist dated 13 April 2022;
(c)Letter from Dr N dated 3 July 2024; and
(d)Single Expert assessment of Dr L dated 8 September 2024.
On consideration of the above evidence and hearing counsel for the mother and the ICL, I made orders on 11 September 2024 in the terms of the mother’s application. Given the seriousness and complexity of the matter, and the fact that I was to go on leave the following week, I determined to provide these comprehensive Reasons at a later date and in circumstances where the medical evidence suggested time to be of the essence for Kelly to proceed to Stage 2 treatment for Gender Dysphoria.
RELEVANT LAW PARENTING
The orders that I am to make are to have the best interests of Kelly and Y as my paramount consideration pursuant to s 60CA of the Act.
I determine the best interests of the children by referencing the parties’ proposals (in this matter just the case of mother and the ICL) to the relevant considerations in the Act and most prominently at s 60CC. I have therefore noted and given weight to the views of both Kelly and Y together with their ages, developmental, psychological, and emotional needs.
Matters of family violence are historical and not notable here.
KELLY
Kelly has identified as female since she was 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.
At school Kelly is identified, and been accepted, as female. The schools are aware of and sympathetic to Kelly’s gender identity and have been supportive.
From nine years of age Kelly has chosen to be known as “Kelly” including at school and socially.
The mother has historically supported Kelly in respect of her gender identity but says, and I accept, that at all times initiatives have come from Kelly including in respect of her transition.
Kelly, the mother and Y live at Town B in State K.
The children’s father lives close by. The father has apparently not accepted Kelly’s Gender Dysphoria. Kelly has made unsuccessful approaches to her father to discuss such issues. There is currently no communicative relationship between Kelly and her father.
Kelly has undertaken comprehensive psychiatric assessment. She has regular consultation with her paediatrician, including appropriate medical testing, such as blood tests.
Relevantly, Kelly suffers a medical condition hereditary and genetic. It is generally understood that puberty blockers contribute to bone degeneration adding to the urgency of my determination in this matter. The puberty blockers cease upon the start of Stage 2 Hormone Therapy Treatment.
Kelly understands and accepts that she is to undergo physiological, Endocrinology and gender paediatrician appointments and assessments at the I Centre in order to commence Stage 2 Hormone Therapy Treatment.
OTHER RELEVANT FACTS
The parents were in a relationship between 1998 and February 2015. They were not married. There were issues of family violence including the mother obtaining a family violence order against the father.
The father has not maintained a relationship with Kelly since separation. He does not refer to her by her chosen name but continues to refer to her as “Charlie”.
Both Kelly and Y have been diagnosed with Asperger’s/Autism syndrome.
Y has some sporadic and minimal contact with his father, most recently in June 2024. Y is receiving medical treatment for depression in addition to his autism diagnosis.
At [29] of her most recent affidavit the mother deposes:
A few days after [Y’s] visit to his father’s house, [Y] had a breakdown. [Y] told me that [the father] told [Y] that I had made up [Y’s] diagnoses. [Y] said his father also told [Y] that I was drugging [Y] with the antidepressants to hurt and harm him as a way of “getting back” at his father.
Y developed suicidal ideations. Y has been appropriately assisted by psychologists.
The mother deposes, and I accept, that she is supportive of Y maintaining relationship with his father according to Y’s wishes.
The mother is in a settled and long-term relationship. She is in productive employment.
MEDICAL EVIDENCE
Dr C has had a professional relationship as a paediatrician with Kelly since 2021. She has worked in conjunction with Dr E (psychiatrist), Dr F, (fertility preservation counsellor), Dr G, (puberty blockers treatment) and Dr L, (psychiatrist).
Dr C says that Kelly meets the criteria for Gender Dysphoria with an appropriate diagnosis from Dr E. Kelly has undertaken comprehensive psychiatric assessment and counselling.
A letter from Dr N of 3 July 2024 confirms that Kelly shows significant deterioration in her bone density compared to a scan 12 months prior and needs to go through puberty so as to restore bone mass.
A Single Expert report from Dr L of 8 September 2024, supplements previous psychiatric evidence from E.
Dr L confirms Kelly’s tendency towards stereotypically feminine interests.
Dr L opines that Kelly’s mental health is currently stable other than in respect of her Gender Dysphoria. Kelly has no history of self-harm or suicidal behaviour. Her mood was euthymic and generally happy (other than expressing anger with her father).
At [41] Dr L states:
There was no disorder of thought or perception. [Kelly] demonstrated flexibility in her thinking and there were no concerns regarding her comprehension and intelligence. She demonstrated the capacity to use analogies. She did not express any current thoughts of self-harm or suicide.
Dr L opines that Kelly clearly meets criteria for Gender Dysphoria in children as per DSM - 5 given:
·An insistence that she is a girl;
·A strong preference for typically feminine clothing and styling;
·A strong preference for stereotypically feminine activities, toys and/or games;
·A tendency to avoid or dislike stereotypically masculine activities, toys and/or games;
·A dislike/rejection of her sexual anatomy; and
·A desire to have feminine sexual anatomy.
Dr T opines that it is in Kelly’s best interest that the proposed future medical treatment is oestrogen, as a gender affirming hormone, and cessation of puberty suppression, thereby releasing hormone analogues within a specialised paediatrics setting for medical work-up and monitoring.
I generally accept Dr T’s comprehensive report and assessment.
The ICL met with Kelly as recently as 10 September 2024. She confirms the following:
·Kelly provided an update that she is enjoying school and still enjoys craft but has not made anything since she last met with the ICL earlier this year;
·Kelly confirmed she travelled to Melbourne and spoke with the specialist doctor online;
·Kelly is 100 per cent wanting to move to the next stage of treatment and that Kelly consents accordingly;
·Kelly has a deep understanding of puberty blockers, and for her this was simply the next step;
·Kelly is aware that her mother is supportive of her progress in her treatment;
·Kelly is aware of her bone degeneration; and
·For Kelly it is important for the ICL to convey to the Court that “I am a real human being and not just so fun or interesting case. This is a life, my life and this has an effect on me. I am [Kelly].”
CONSIDERATION
I accept the submissions of the ICL as follows:
•In Australia, the Family Law Act 1975 provides the Court with authority to make orders relating to the best interests of the child in respect of non-urgent medical interventions;
•The term Gender Dysphoric children and adolescents relates to the clinically significant distress or impairment experienced in a person desiring to be of another gender where there is incongruence between the gender identity and the gender assigned at birth;
•Treatment is informed by the Australian Standards of Care and Treatment guidelines for Trans Gender Diverse children; and
•The treatment pathway involves 3 stages. Stage 1 treatment is known as puberty suppression or blockage in the form of medication holding progression of physical changes from entering puberty and is reversible. Stage 2 involves gender affirming hormone treatment with some effects being irreversible. Stage 3 involves surgical intervention.
The Full Court in Re: Jamie[1] held that orders for Stage 1, puberty blockers treatment for Gendered Identity Disorder in children, did not require the consent of the Court if the parents, the child and the treating professional were in agreement. Obviously, the father here does not provide his consent.
[1] [2013] FamCAFC 110; (2013) FLC 93-547.
Similarly, a later Full Court in Re: Kelvin [2017] FamCAFC 258[2] held that the prescription of cross - sex hormones to adolescents did not require Court approval if the parents, the child and the treating practitioners agree. Court imprimatur was required prior to 2017 with emphasis on the Court being persuaded as to the “Gillick”[3] level of competency.
[2] [2017] FamCAFC 258; (2017) FLC 93-809.
[3] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
The ICL helpfully refers me to decisions of state Supreme Courts in circumstances where one parent does not positively consent and including IN THE MATTER of an application by the Royal Children’s Hospital; Re: CD[4] and Re: A[5] and Re: G4 [2021] FCWA 102.
[4] [2024] VSC 456.
[5] [2022] QSC 159.
Noting Kelly’s date of birth in 2009, making her 15 years of age, the Court is not oblivious to and has given strong consideration to medical, social science and legal considerations in respect of Gender Dysphoria treatment in other jurisdictions and with the considerable assistance of the ICL. Specifically, that this Court is considered social science and discussion in respect of regret syndrome and detransition where there is a prolificity of social comment and a relatively dearth of jurisprudence relevant to the factual platform before me. (see Bell v Tavistock)[6]
[6] [2021] EWCA Civ 1363.
FINDINGS
Kelly is 15 years of age and will be 16 in 2025.
The material before the Court, specifically the Single Expert evidence, confirms that Kelly is Gillick competent; Kelly has identified as female for some 13 of her 15 years. She has done so consistently. She meets the criteria for Gender Dysphoria and confirmed by the diagnosis of the Single Expert.
Kelly has conveyed to both the Single Expert and the ICL that she agrees with and consents to the proposed treatment at Stage 2.
The mother confirms her understanding of Stage 2 treatment and her support to Kelly together with her understanding of Kelly’s own competence. The father has not participated in these proceedings but has been informed of hearings at each stage and provided with the relevant evidence.
The Court does not have the relevant consent of the father in respect of Kelly’s proposed treatment.
The father’s participation in the lives of both Kelly and Y is sporadic at best and unsupportive of Kelly with the Court noting no contact between Kelly and the father for some years.
Given the above, the Court is persuaded to make the orders sought by the mother, noting such orders were made on 11 September 2024.
I will order that a copy of these Reasons, together with the Orders, be provided to the father by the ICL.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.
Associate:
Dated: 14 November 2024