Re: Marley

[2015] FamCA 878

FAMILY COURT OF AUSTRALIA

RE: MARLEY [2015] FamCA 878

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a 17 year old child who was born as a natal female and identifies as a male – Where the child is not Gillick competent – Where the parents seek a Court order authorising them to consent to the child undergoing the second phase of hormonal treatment – Where the second phase of the treatment carries significant risks and has irreversible effects – Where the parents and medical experts agree that it is in the best interests of the child to undergo the second phase of treatment – Application granted.

Family Law Act 1975 (Cth)

Gillick v West Norfolk A.H.A [1986] A.C. 112
Re: Jamie (2013) FLC 93-547

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

FIRST APPLICANT: The Father

SECOND APPLICANT: The Mother

INTERVENER: The Department

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 21 October 2015

JUDGMENT OF: Forrest J

HEARING DATE: 21 October 2015

REPRESENTATION

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

Orders

IT IS ORDERED THAT

1. The Court be closed today for the hearing and determination of these proceedings.

2. Leave is granted for the relevant Department to intervene in these proceedings.

3. Pursuant to section 100B(1) of the Family Law Act 1975 (Cth), leave is granted, nunc pro tunc, for the child, Marley, born on … 1998, (“the child”) to sign an affidavit to be filed and read in the proceedings today.

4. Leave is granted to the applicants to file and read an affidavit of the child sworn 17 September 2015.

5. Leave is granted to the intervener to file and read an affidavit of Ms A affirmed on 12 October 2015.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Section 67ZC of the Family Law Act 1975 (Cth) the Court authorises the Applicants, the Father and the Mother, to consent to treatment on behalf of the child, Marley, born … 1998, under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Professor B and his psychiatrist Dr S, for the administration of Intramuscular Primoteston (testosterone enanthate) in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.

2. The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the Registry, file number, and 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, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Marley 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 file number is dismissed

The Father

First Applicant

And

The Mother

Second Applicant

And

The Department

Intervener

REASONS FOR JUDGMENT

1. Marley was born in 1998 and is now 17 years of age.  He identifies as a young man, although born as a natal female.  Marley’s parents jointly make application to this Court pursuant to the Court’s welfare jurisdiction for Orders authorising them to consent to Marley’s hormonal treatment in such dose, in such manner and with such frequency as determined in consultation with Marley’s treating medical practitioners so as to induce male puberty so that Marley can continue to develop into adult manhood in the way that he aspires to. 

2. The application was supported by evidence from each of Marley’s parents, affidavit evidence from medical experts, Professor B, Marley’s treating paediatric endocrinologist, Dr S, Marley’s treating paediatric psychiatrist, and Dr M, a child and adolescent psychiatrist who provided a second opinion. In addition to these affidavits, an affidavit of Marley’s was filed with the leave of the Court after I made an Order retrospectively approving the making of the affidavit by Marley pursuant to s 100B(1) of the Family Law Act 1975 (Cth) (“the Act”).

3. The relevant government Department was granted leave to intervene in the proceedings and made submissions that included a submission that the application before the Court today is not opposed. Leave was granted for an affidavit by an officer of the Department to be filed and that was also relied upon by the Director-General.  That affidavit deposed to departmental support that had been offered to the family in this case.

4. In addition, detailed and thoughtful written submissions were provided to the Court by Ms F, who appears as counsel for the applicants before me today. The Court has been assisted greatly by those submissions and all of the evidence that I have read, but in particular the Court is assisted by having read Marley’s own evidence.

5. At the hearing of this application this morning, having regard to the sensitive nature of the proceedings, I acceded immediately to the application of the parents for the matter to be heard in a closed court room.

Some Relevant Background

1. Marley’s parents were married in 1995; they separated in 2009 and obtained a dissolution of their marriage at the beginning of this year.  Marley is an only child and lives with his mother while maintaining a meaningful relationship with his father.

2. Marley was given the name “XX” at birth by his parents. His parents say that in his early years, he would not play with ‘girly’ toys or dolls and preferred to play with non gender specific toys, such as blocks.  Marley’s father says that he assumed that Marley was a ‘tom-boy’ as he was growing up.  

3. When Marley was about four or five years old, he began insisting on wearing pants or leggings under his skirts and dresses. His parents recall him being fixated on a male character from a children’s novel and that that fixation, I am told, continues to this day.  Marley would dress as the character and request that he be called by the character’s name. It seemed, at least to Marley’s father, that his son identified particularly with male characters rather than female characters.

4. By the time Marley was nine years old, he opposed wearing the girls’ school uniform to the school that he attended and insisted on wearing trousers underneath his skirt. His mother says that Marley would become very troubled if she tried to have him wear only the skirt.

5. Although Marley had both male and female friends, he is reported to have preferred playing with male peers, rough and tumble games and stereotypical ‘male style’ games.

6. Upon the commencement of puberty, Marley’s parents observed that Marley became very unhappy.  He was often down and very reclusive. These feelings, they say, were exacerbated during periods of menstruation and his mother recalls that Marley became deeply distressed during these times, would often cry and that his mood would be atrocious.  Marley would not leave his room at this time and on one occasion his mother reports him to have asked her if he was “mentally crazy” because he was not happy in his own body.

7. Interacting with girls has been somewhat difficult for Marley as he seems naturally more comfortable with boys. From his early teenage years, Marley began wearing only the boys’ uniform to school and he preferred to shop in the boys’ section of stores.  In year 9, Marley cut his hair short to make himself look more like a boy.  He had also done that when he was only five years old I read in his affidavit earlier this morning.

8. In Maley’s words, his peers viewed him as a ‘butch lesbian’.

9. Through one of his high school friends, Marley became involved with the C community, which I understand to be a supportive community for young people experiencing similar life issues to Marley. He says he felt comfortable there and was introduced to other children with similar life experiences. Marley then began researching on the internet and soon after he did that, he courageously told each of his parents that he was confused and felt he was a male trapped in a female body.  He disclosed to them that he actually wanted to be a male.

10. Neither of Marley’s parents say they were very surprised by their son’s disclosures as they had both observed that he identified more as a male than a female as he had been growing up.

11. Marley then informed his school that he was transgendered, the staff were supportive of him and he became known as ‘X’ and referred to by use of the male pronoun. Sadly however, Marley was subjected to some bullying and demeaning comments by some of his fellow students.  He says though that he had the support of some of his close classmates and in particular his parents and that they have continued to lovingly support him since they were informed by him of his identification as a male.

12. In late 2013, Marley began wearing breast binders to help him deal with his developing breasts. Marley is reported to have had great difficulty in undertaking things such as showering as he was reportedly unhappy and disappointed by his own female appearance and developing female anatomy.

13. Marley’s mother took him to a doctor who started Marley on a temporary treatment before he was referred to Dr M, the child and adolescent psychiatrist who has given evidence in this case, in late 2013.  It was requested that Marley undergo an urgent psychiatric assessment given his level of emotional distress and his deteriorating mental state at that particular time.

14. In mid-2014 Marley began attending at the Z Hospital.  In June that year he was assessed by Dr S, child psychiatrist, who has given evidence in these proceedings, and then again later by Professor B, the endocrinologist who has given evidence in these proceedings.  In July 2014 Professor B commenced Marley on reversible hormone treatment that would block female puberty. This treatment is described as Phase 1 of the treatment of people who are born as natal females who identify as male.   The effects of Phase 1 treatment include the cessation of menstruation.

15. Marley’s parents report that Phase 1 treatment has had a very positive effect on Marley and that his mood and outlook on life has improved as he is no longer upset and full of uncertainty and anxiety.

16. Earlier, in May 2014, Marley actually changed his name to reflect his male identity on his Birth Certificate and on his Medicare card, as I understand it.

17. Last year, Marley and his mother relocated from the city to live at a regional centre.  Initially, Marley was commuting to school from there, however due to the burden of such travel, he enrolled and began attending a school in the local area to where he was living.  He enrolled as a boy.  None of Marley’s classmates at that school know that he was born as a natal female, and he is known to them as Marley and identifies as male at the school.  A couple of teachers apparently are aware of Marley’s life circumstances, and Marley is a little anxious, I understand it,  that he will be ‘found out’ by his classmates and thereafter subjected to some more bullying.

18. Marley has become concerned about his lack of secondary male characteristics, for example facial hair and muscle growth, particularly because his peers are unaware that he is transgendered.

19. The medical investigations undertaken by Professor B indicate that there are no endocrinal or genetic reasons to explain Marley’s gender identification. Further, Dr S has formed the view that there is no evidence that Marley is suffering from a significant co-morbid psychiatric disorder or that there is any cultural or personal advantage for his cross-gender identification.

20. Since July last year, Marley has been receiving the Phase 1 reversible hormone treatment every three months to suppress female pubertal development. At the time she wrote her report, Professor B noted that there had not been any problems with Marley’s treatment under Phase 1 as at that time.

21. According to the Clinical Practice Guidelines put into evidence that are attached to Professor B’s affidavit that was relied upon before me, Marley is eligible to commence the next phase of the treatment, being intramuscular injections of testosterone every two weeks, increasing in dosage every six months. Pubertal suppression continues whilst this second phase of the treatment is administered. Intramuscular injections are a lifelong requirement with this treatment.  

22. Treatment with intramuscular testosterone induces irreversible physical changes. Those include the development of increased muscle mass, a reduction in fat mass, increased facial hair and acne, probable complete cessation of menses, deepening of the voice, temporary or permanent decreased fertility, and enlargement of the clitoris. It can also lead to male pattern baldness and increased libido.

23. The treatment carries with it increased risk of adverse outcomes such as breast or uterine cancer, elevated red blood cell count, stroke and heart attack. Professor B also says there is a “moderate to high risk of severe liver dysfunction” and says that the risks associated with treatment cannot be reduced and careful monitoring is essential.

24. Dr S also points out that treatment with testosterone is a known cause of mood swings and low mood and increases the risk of agitation and aggression. However, Dr S says that these risks can be reduced through ongoing psycho-education and psychological support and therapy. Importantly though, Dr S points out that, “[Marley] does not have a premorbid history of aggression or violence” and this means the likely benefits of the proposed treatment outweigh the risks of the proposed treatment in this respect. 

25. The doctors say the proposed treatment is recommended because it is the only treatment for natal females who identify as male and want to live as males that meets the ‘best practice’ guidelines. Unsurprisingly, the medical experts say that any surgical intervention, which can include a mastectomy, breast reduction and gender reassignment, should only be considered, with Marley’s consent, after he turns 18 years of age.

26. Professor B acknowledges that it would be feasible for Marley to remain on Phase 1 treatment alone until he is 18 years of age, after all that is only four months away.  However, she gives the opinion that this would cause Marley considerable mental distress noting that “[h]e has already become distressed and wishes to proceed to cross hormone treatment for masculinisation as soon as approval is obtained.” Professor B is of the opinion that it would not serve any purpose to delay the proposed Phase 2 treatment until Marley is 18 years of age. Furthermore, Dr S reports that Marley would like to commence testosterone treatment so as to begin the development of secondary male characteristics before commencing tertiary education next year.

27. Dr S considers it unlikely that Marley will desist from his strong identification as a male and his desire to access the treatment. The doctor expresses the view that allowing the treatment now will further reduce the risk of Marley experiencing future mental health problems such as low mood, anxiety, suicidal ideation and self-harming behaviours and experiencing social isolation that can lead to such mental health problems. Significantly, the doctors also express the view that if Marley does not access the treatment regulated through his treating doctors there is a risk that he may illicitly source suboptimal testosterone products and self-administer without appropriate medical support.

28. The medical evidence supports the recommendation that Marley should remain engaged with psychological support, mental state assessments and psychiatric review over the time of his treatment to monitor his mental state and psychological response to his progressive masculinisation.

29. Having read the affidavit that was filed by leave this morning that Marley made, I am satisfied that Marley has a degree of understanding of the risks involved in the Phase 2 treatment as well.

30. Both of Marley’s parents are concerned about their son’s wellbeing if he is not provided with the treatment. Marley’s mother deposes to her fears for Marley’s wellbeing if the second phase of treatment is not commenced.  She says:

    Without treatment with testosterone, I cannot see how [Marley] will cope. Without treatment, I believe [Marley’s] mental well-being will significantly diminish and I am concerned that if he cannot start testosterone treatment, thoughts of self-harm, which he had prior to receiving Stage 1 treatment, or worse, may occur.  I am concerned about his welfare if treatment was not provided to [Marley].

31. Marley has, happily, the complete support of his parents and they are fully aware of the irreversible effects and adverse risks of the treatment. His parents consider that the associated risks will be far outweighed by the long-term benefits that they believe Marley will experience by undergoing the proposed treatment. 

Why is this Family in this Court?

1. Of course, if Marley was already 18 years of age he could determine what treatment he wanted and consent to it himself. If Marley was “Gillick-competent”, even at the age of 17, he could give informed consent to the proposed medical treatment.

2. The expression “Gillick-competent” is used to describe the status of a child who has reached “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. It first emerged in an English appeal court’s decision in Gillick v West Norfolk A.H.A [1986] AC 112 and became part of the law of Australia when the High Court recognised it as such in Marion’s Case.[1]

   [1]See the High Court’s decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

3. Absent a finding of a child being Gillick-competent, usually parents can provide authorised consent to medical treatment for their child. However, the authorisation of some forms of medical treatment or medical procedures for children has been determined to fall outside the normal bounds of parental decision making responsibility and, thus, require authorisation by this Court exercising its welfare jurisdiction.  The High Court found as such in Marion’s case.  Hormonal treatment in cross-gender identification cases has been held to be such treatment because of its irreversible effects.  The Full Court of this Court found as such in a case called Re Jamie.[2]

   [2] (2013) FLC 93-547

4. The medical experts in this case each express the opinion that Marley is not “Gillick-competent”. Their opinions are of the effect that whilst Marley has a level of understanding about the issues and has his own views about the treatment, they are not satisfied that he has a full understanding of the long term and potentially life threatening medical implications of irreversible hormone treatment.  Dr S actually says that he does not believe that “[Marley] has the capacity to consent to irreversible treatment”, in that “he has not achieved a sufficient understanding of the long term medical consequences to enable him to understand fully what is proposed”.  I hasten to add here that this is not a negative reflection on Marley.  Dr S in fact says that he is “not persuaded that most minors would be in the position to fully understand the implications of irreversible hormone treatment over the entire lifespan”.

1. As I accept the opinions of the medical experts that Marley is not “Gillick-competent”, this Court’s Order for Marley’s parents to be able to authorise the particular proposed treatment is necessary. The Court’s jurisdiction to make such an Order is found in s 67ZC of the Family Law Act and, in deciding whether to make the Order sought, the Court is bound to regard Marley’s best interests as its paramount consideration.  

My Satisfaction

1. The highly qualified medical experts in this case have each expressed the opinion that the proposed treatment is in Marley’s best interests.  They say it is because it will have positive consequences for his emotional wellbeing and reduce the risk of him experiencing any more mental health problems. They do not believe that delaying the commencement of treatment until Marley turns 18 years of age is of any benefit having regard to Marley’s strong position and the potential negative consequences of any delay for Marley. I am quite satisfied that those doctors are caring, thoughtful, expertly qualified doctors who are working extremely well together and with Marley and his parents in treating Marley. That, of course, should continue.

2. Marley’s parents both support the proposed treatment commencing as soon as possible, truly believing it to be in Marley’s best interests and each fully aware of the attendant risks. They stand right beside Marley in his resolve.

3. Finally, Marley himself, rapidly approaching adulthood now, is strongly committed to the proposed course and wishes to commence it as soon as it can.  I am quite satisfied that Marley, like every other young person, should be given every opportunity to achieve his aspirations and I am satisfied that allowing his parents to authorise the proposed treatment, as they seek, is in Marley’s best interests. That is why I intend to order as I will.

4. I am also satisfied that Marley’s privacy and the privacy of his family should continue to be respected. That is why I will also order in respect of the non-publication matter as asked by Marley’s parents and supported by the Department.

5. Accordingly, I order as follows.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 October 2015.

Associate: 

Date:  21 October 2015