Re: Mason

[2017] FamCA 453

FAMILY COURT OF AUSTRALIA

RE: MASON [2017] FamCA 453

FAMILY LAW – CHILDREN – MEDICAL PROCEDURE –Where the applicant is the mother of a child diagnosed with Gender Dysphoria –where the applicant seeks a finding that the child is Gillick competent to consent to Stage Two treatment for Gender Dysphoria – where the child’s father supports the application – where the child’s treating medical experts support the child commencing Stage Two treatment – assessment of whether a 17 and a half year old child is Gillick competent to consent to the medical treatment – where the child is competent to consent medical treatment.

Evidence Act 2008 (Cth) s 140
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.12, 4.10

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369
Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218

APPLICANT: The Mother

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 29 June 2017

JUDGMENT OF: Johns J

HEARING DATE: 23 June 2017

REPRESENTATION

By Court Order the names of Counsel and Solicitor have been suppressed

Orders

1. That pursuant to Rule 1.12 of the Family Law Rules 2004 (the Rules) the requirement pursuant to Rule 4.10 of the Rules that the Initiating Application filed 22 May 2017 be served on the prescribed Child Welfare Authority be dispensed with.

2. That the full name of the child K (also known as Mason) born … 1999 (“Mason”), Mason’s family members and their occupations, the hospital, Mason’s medical practitioners, Mason'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proceedings were initiated, the name of the parents, lawyers and any other fact or matter that may identify Mason shall not be published in any way, and only anonymised Reasons for Judgment and orders (with coversheets excluding the Registry, file number and lawyers names and details, as well as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 coversheet of Reasons for Judgment that includes the file number and lawyers’ names.

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

4. That the applicant be at liberty to provide a copy of the un-anonymised and the un-anonymised Reasons for Judgment to all persons involved with Mason's treatment and welfare. 

5. That upon the Court being satisfied that the child Mason is competent to consent to the medical treatment described in the Initiating Application filed 22 May 2017, the applicant’s Initiating Application be otherwise dismissed.

AND THE COURT NOTES

That the proposed medical treatment so described in the Initiating Application filed 22 May 2017 is hormonal, psychiatric, psychological or any other complimentary treatment for gender dysphoria.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Mason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother

Applicant

REASONS FOR JUDGMENT

Introduction

1. Mason was born in 1999 and is aged 17½ years.  Although biologically female, Mason has been diagnosed with gender dysphoria and with the support of his parents, lives as a male in all aspects of his life.

2. Mason wishes to commence Stage Two treatment for gender dysphoria, which involves him being administered with the hormone testosterone in order to masculinise his body.  In order to commence that treatment, Mason’s mother has filed an Initiating Application in which she seeks a finding that Mason is “Gillick competent” to consent to the proposed treatment.  An order is also sought that the mother be permitted to change Mason’s name although that aspect of the application was not pressed before me. 

3. These are my Reasons for Judgment with respect to the application as to Mason’s Gillick competence.

Material Relied Upon

1. The applicant relies upon the following material:-

   ·Initiating Application filed 22 May 2017;

   ·Affidavit of the mother filed 22 May 2017;

   ·Affidavit of the father filed 22 May 2017;

   ·Affidavit of Dr T filed 22 May 2017; and

   ·Affidavit of Dr K filed 22 May 2017.

Background

1. Mason was born in 1999 and is aged 17½ years.  He is the only child of the mother and the father.  He has two adult half-siblings on his mother’s side.  He lives with his parents and half-siblings.

2. Mason’s mother, the applicant in the proceedings is aged 49 years and engaged in employment in the health services field. 

3. Although Mason’s parents are separated, they continue to live under the same roof with Mason and his half siblings. 

4. The application is supported by Mason’s father, who has sworn an affidavit confirming his support.  Mason’s mother and father both attended the hearing of this matter.

5. Mason’s mother provides a detailed history of Mason’s experience of gender dysphoria in her affidavit filed 22 May 2017.  In that affidavit she deposes that Mason was a happy and healthy infant and reached all of his normal developmental milestones.

6. She deposes that in his early secondary school years Mason was bullied by other students at his private school and commenced attending upon a local psychologist to assist him with anxiety. 

7. She deposes that when in Year 9, Mason disclosed to his parents his gender issues.  At that time, his parents informed his school of his decision to transition to living as a male and the school was supportive of that decision.  At about the same time, Mason commenced attending upon a psychologist who referred him to the gender dysphoria unit at the X Hospital. 

8. Mason changed schools at the commencement of Year 10 due to the bullying he experienced at his previous high school.  He was enrolled at his new school using his chosen male name. 

9. Currently, Mason is in Year 12 and is progressing well at school.  He has ambitions to study at university upon the conclusion of his secondary education. 

10. Mason has been under the care of Dr T, an adolescent paediatrician and Dr K, consultant psychiatrist since 2014.

11. Mason currently takes Primolut N to stop menstruation.  However his mother deposes that Mason is concerned with the feminisation of his body prior to the commencement of Stage Two treatment.  As a result of his breast development, Mason now wears a binder.  His mother deposes that Mason is extremely self-conscious outside of the home as a result of these feminine physical traits.

12. It is as a result of Mason’s increasingly expressed anxiety to commence Stage Two treatment that the mother has made her current application to the Court.  In her affidavit she confirms her support for Mason commencing the Stage Two hormonal treatment which she considers to be in Mason’s best interests.

Legal Principles

1. In the decision of Re Jamie [2013] FamCAFC 110; (2013) 50 Fam LR 369 (“Re Jamie”) the Full Court considered what is known as Stage Two treatment of gender dysphoria.  The Full Court there considered whether the Stage Two treatment is a medical procedure for which consent lies outside the bounds of parental responsibility, therefore requiring the imprimatur of the Court.  In determining that issue the Full Court considered the question of the child’s capacity to consent to Stage Two treatment; that is the question of whether a Gillick competent child could consent to the procedure.

2. The term “Gillick competence” comes from the decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”), where it was said by Lord Scarman at pages 188 to 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.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.

3. The High Court confirmed in the decision of Secretary, Department of Health & Community Services (NT) v JWV and SMV (1992) 175 CLR 218 (“Marion’s case”) that the view of the House of Lords in Gillick represents the common law in Australia. 

4. The Full Court in Re Jamie determined that a Gillick competent child could consent to stage two treatment.  In considering that question, Bryant CJ stated:-

   134.     In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does.  The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child is 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”.

   135.     I see no basis for reading this down because the treatment is for childhood gender identity disorder.  Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.

   (Original emphasis).

5. It was held by the Full Court that the question of Gillick competence is a matter for the Court to determine.  That this is so is for two reasons:-

   ·first, due to the risk of making the wrong decision as to the child’s capacity to give consent; and

   ·second, because the consequences of a wrong decision are particularly grave.

6. The Full Court held that once the question of Gillick competence is established, the Court would have no further role with respect to determination as to stage two treatment. 

7. Rule 4.10 of the Family Law Rules (Cth) 2004 (“the Rules”) provides that applications for medical procedures in relation to a child must be served on the prescribed child welfare authority.  The prescribed child welfare authority in this instance is the relevant government Department. 

8. In circumstances where the mother’s application is supported by the father, I am satisfied that there is no genuine controversy in this matter.  Both parents are supportive of Mason and seek orders enabling him to commence Stage Two hormonal treatment.  Mason’s treating medical practitioners have assessed Mason as being Gillick competent.  I will refer to that assessment in greater detail later in this judgment.  However, having regard to those circumstances, I am satisfied that it is appropriate pursuant to r 1.12 of the Rules to dispense with compliance with r 4.10 of the Rules.  In my view, there is little utility or benefit to Mason or his mother in delaying the finalisation of the current application by requiring service of that application on the Department.  Similarly, I am satisfied that there is no utility in the appointment of an Independent Children's Lawyer in circumstances where both parents have agreed that the proposed treatment is appropriate and in Mason’s best interests.  All of the evidence before me indicates that Mason’s interests are well represented by his parents.

9. The hearing was conducted on the papers.  None of the witnesses were required for cross-examination. 

10. The applicable standard of proof is the balance of probabilities in accordance with s 140 of the Evidence Act1995 (Cth).

Proposed treatment and effects

1. In her affidavit filed 22 May 2017, Mason’s paediatrician, Dr T, describes the proposed treatment and its effects.  She notes in her letter dated 23 December 2016 which is annexed to that affidavit (Annexure MT-03) that she proposes to treat Mason with testosterone, the male sex hormone, to masculinise his body.  She deposes that she intends to start such treatment using three-monthly intramuscular injections of a long-acting testosterone.  She states that she intends to closely monitor Mason for side effects and adequacy of the testosterone dose. 

2. As to the effects of that treatment Dr T notes the likely long-term physical, social and psychological effects of the proposed testosterone treatment on Mason include:-

   ·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 the growth of the larynx (Adam’s apple) and lengthening of the vocal chords;

   ·Muscle development;

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

   ·Growth of the clitoris and an increased number of erections;

   ·Stopping the development of ova (eggs) in the ovaries with loss of fertility;

   ·Stimulation of bone mineral density;

   ·Behavioural change as testosterone stimulates more assertiveness (sometimes aggression) and sexual desire.

3. As to the risks of that treatment, Dr T identifies that if the testosterone doses increase too rapidly Mason’s mood may be affected and he could become aggressive.  Further, she notes that the effect of testosterone on the ovaries and other female organs over time is not well understood and the danger of inducing abnormalities such as ovarian cancer has not been extensively studied.  She notes that there may be other effects that are currently unanticipated as long-term outcome is still being studied.

4. Dr T also notes that if Mason ceases testosterone treatment in the future some of the physical changes experienced by him will not be reversible.  In particular those changes include changes in facial shape and appearance, the irreversible deepening of the voice due to the growth in the larynx and the growth of the clitoris.  There is a risk of regret in the event that the testosterone treatment ceases in the future. 

Is Mason Gillick competent?

1. At issue is the question of whether Mason is capable of making his own decision with respect to the proposed Stage Two treatment.  That question will be resolved upon a determination as to whether Mason has sufficient understanding and intelligence to enable him to fully comprehend and understand the proposed treatment. 

2. At paragraph 26 to 29 of her affidavit, Mason’s mother deposes as to the extraordinary amount of research he has undertaken on gender dysphoria and the proposed Stage Two treatment.  She describes Mason as being very engaged when meeting with his treating doctors and that he participates in all discussions around his care.  She also describes Mason’s attendance upon a doctor at the X Hospital for fertility counselling which occurred in early to mid-2016.  She confirmed Mason’s decision at this time is not to freeze his eggs.  Nonetheless, his mother confirms Mason’s awareness of the various options available to him in this regard.  Further, Mason’s mother confirms that he is fully cognisant as to the irreversible changes that will occur to his body in the event of Stage Two treatment.  His mother describes her confidence that Mason fully understands the effects of the Stage Two treatment and the irreversible nature of that treatment.

3. In response to the question of Mason’s understanding of the stage-two treatment,  at paragraph 8(b) of her letter Dr T describes him in the following terms:-

   [Mason] is a young man with above average intelligence and social capability.  He has always done very well academically and functions well socially with many supportive friends.  He understands what the treatment will mean for him in the long-term including the known risks and benefits.  [Mason] underwent formal fertility counselling by adolescent gynaecologist Dr [J] on 1 April 2016.  I have had a number of discussions with [Mason] about the effect of testosterone on his body and the possible consequences including that of fertility since this time.  [Mason] understands these issues very well. 

4. Dr T considers that Mason is capable of making an informed decision about the proposed treatment.

5. Dr K, Mason’s treating psychiatrist has also filed an affidavit in these proceedings on 22 May 2017. Dr K’s report with respect to Mason dated 19 December 2016 is annexed to that affidavit (Annexure PK-03). In that report, Dr K confirms that she has been treating Mason since 2014. She confirms that Mason’s presentation is consistent with a diagnosis of gender dysphoria (DSM-V) and gender identity disorder (transsexual type) (ICD-10 F64.0). In response to the question of whether Mason is capable of making an informed decision about the proposed treatment, Dr K reports that:-

   [Mason] is a bright young man who is able to demonstrate full understanding of the nature of the treatment, including side-effects and limitations and is actively requesting the treatment.  In my opinion [Mason] is Gillick competent and is capable of making an informed decision about the treatment.

   He understands that some aspects of testosterone treatment are irreversible and that treatment will not have an effect on his breast size or some other physical characteristics... 

6. Having regard to the evidence of Mason’s parents and his treating medical practitioners, I am satisfied that Mason has the necessary intelligence and understanding to enable him to give consent to the proposed Stage Two treatment.  I am satisfied on the balance of probabilities that Mason is competent to fully understand the nature and consequences of the proposed treatment and to make his own decisions in relation to that treatment.

7. Having found that Mason is Gillick competent to consent to the Stage Two treatment, I will dismiss the Initiating Application. 

8. I will also make orders protecting the confidentiality of Mason, his parents, lawyers and treating medical practitioners.  I am satisfied that such order is appropriate given the sensitive and personal nature of the issues raised in the Initiating Application.

9. Although the mother sought in the Initiating Application orders with respect to the change of Mason’s name, that part of the application was not pressed at the hearing before me.  The reality is that upon his attaining 18 years it will be open for Mason to change his name if he so chooses.  Accordingly, I will dismiss that part of the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 29 June 2017

Associate: 

Date:  29 June 2017