Re: Max
[2021] FamCA 290
•26 May 2021
FAMILY COURT OF AUSTRALIA
Re: Max [2021] FamCA 290
File number(s): By Court order file number has been suppressed Judgment of: HARTNETT J Date of judgment: 26 May 2021 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – Gender Dysphoria – where Applicant mother seeks order that child is competent to consent to Stage 2 treatment for Gender Dysphoria – where Respondent father does not consent to the child undergoing Stage 2 treatment for Gender Dysphoria – where the child wishes to undergo Stage 2 treatment for Gender Dysphoria – where there is no unanimity between the parents that the child is Gillick competent – where the Applicant mother and the child’s medical experts are of the view the child is Gillick competent – where the Respondent father disputes the diagnosis of Gender Dysphoria – where the child is found to have Gender Dysphoria and found to be Gillick competent – where it is in the best interests of the child to undergo Stage 2 treatment – where orders relating to confidentiality are made. Legislation: Family Law Act 1975 (Cth) ss 60CB, 60CE, 67ZC, 69ZE, 100B, 121, 121(9)(g), 117(2A)
Family Law Rules 2004 (Cth) rs 17.02, 17.02A(b)
Cases cited: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Elliott [2017] FamCA 1008
Re: Imogen (No.6) [2020] FamCA 761
Re: Jamie [2013] FamCAFC 110; (2013) FLC 93-547; 278 FLR 155; 50 Fam L R 369
Re: Kelvin [2017] FamCAFC 258; 351 ALR 329; (2017) FLC 93-809; 327 FLR 15; 57 Fam LR 503
Re: Lincoln (No.2) [2016] FamCA 1071Secretary, Department of Health and Community Services v J.W.B and S.M.B (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218
American Psychiatric Association, “Gender Dysphoria” in Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (American Psychiatric Publishing, 5th edition 2013)
Number of paragraphs: 63 Date of last submission/s: 10 May 2021 Date of hearing: 10 May 2021 Representation: By Court order the solicitor’s names have been suppressed. ORDERS
MLC13572 of 2020 BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
12 MAY 2021
IT IS DECLARED THAT:
1.The child Max (née Catherine), who was born in 2004 (“the child”) is Gillick competent to consent to the administration of Stage 2 treatment for the condition called Gender Dysphoria in Adolescents and Adults as set out in the Diagnostic and Statistical Manual of Mental Disorders (2013) (“DSM-5”).
IT IS ORDERED THAT:
2.The child be permitted to receive testosterone (Stage 2 treatment) prescribed by clinicians at the P Hospital Gender Clinic.
3.(a) The full name of the child, his family members, his hospital, his medical practitioners, his school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of the child’s mother and father and any other fact or matter which may identify the child shall not be published in any way; and
(b)only anonymised reasons for judgment and orders (with cover sheets excluding the Registry, file number and lawyer 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.
4.To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Max have leave to publish to the child’s treating practitioners a copy of these orders which are not anonymised pursuant to order 3 hereof.
5.No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Max has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Preliminary
On 8 December 2020, the Applicant mother (“the Applicant”) filed an Initiating application seeking a declaration and orders in respect of the child, Max, aged 16 years who was born female but identifies as male. Max has been diagnosed with the condition of Gender Dysphoria, as defined in Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”).[1]
[1] American Psychiatric Association, “Gender Dysphoria” in Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (American Psychiatric Publishing, 5th edition 2013).
The declaration and orders sought by the Applicant were that:
(a)the child be declared Gillick competent; and
(b)the child be permitted to receive testosterone (Stage 2 treatment) prescribed by clinicians at the P Hospital, Gender Clinic.
On 28 April 2021, the Applicant filed an Amended application seeking a further order that the Respondent pay the Applicant’s costs and a procedural order nunc pro tunc that Max be permitted to file affidavits in the proceeding. On the day of the hearing the Court granted leave under section 100B of the Family Law Act 1975 (Cth) (“the Act”) for the Applicant to rely on the affidavits of the child sworn on 7 December 2020 and 19 April 2021.
In support of her application, the Applicant otherwise relied upon:
(a)affidavits of the Applicant sworn 7 December 2020 and 20 April 2021;
(b)affidavits of Associate Professor B sworn 7 December 2020 and 19 April 2021;
(c)an affidavit of Associate Professor C sworn 7 December 2020;
(d)an affidavit of Dr D affirmed 7 December 2020; and
(e)submissions dated 10 May 2021.
The Respondent father (“the Respondent”) opposed the application of the Applicant and in Response to initiating application filed by him on 19 March 2021, he sought dismissal of the Application. On that basis, and on 17 December 2020, the proceeding was set down for a four day contested hearing, the Respondent indicating that he would challenge the Applicant’s medical evidence, as well as the evidence of the Applicant and Max in relation to Max’s competence, and submitted that that the administration of Stage 2 treatment to Max was not in his best interests. The Affidavit of evidence filed by the Respondent in the proceeding sworn 19 March 2021 also appeared to assert that the Respondent contested the diagnosis of Max.
The Respondent, at no point in the proceeding, consented to the orders as sought by the Applicant. On 7 May 2021, the Respondent advised the Court and the Applicant that Counsel was briefed to appear on his behalf at the hearing. On the day prior to the hearing date, Counsel for the Respondent informed Senior Counsel for the Applicant that no witnesses would be required by Counsel for the Respondent for cross-examination, the Respondent instructing his Counsel not to cross-examine the Applicant nor Max, nor any of the Applicant’s expert witnesses. The Respondent himself had not filed any expert evidence or other material save his own Affidavit of evidence, on which he sought to rely. The evidence of the Applicant was thus unchallenged by the Respondent who instructed his Counsel to make submissions only on his behalf.
The Court was told that the Respondent was unable to attend Court due to a health condition suffered by him, and accordingly, he was not available for cross-examination by the other party. Whilst he filed a lengthy Affidavit of evidence on 19 March 2021, the Court gives that evidence little weight in circumstances where the Respondent did not make himself available for cross-examination in respect of the contents of that affidavit, together with the evidence as contained in his earlier affidavit sworn 19 May 2020.
On 12 May 2021, I made orders as sought by the Applicant with reasons to be subsequently published. These are my reasons.
Brief history of the parties
The Applicant and the Respondent were married in 1993 and divorced in 2002. They reconciled in 2003, and separated again and finally in early 2014.
The parties have two children, Max, the subject of this application, and T born in 2008 (“the children”). The children were born when the parties were in a de facto relationship.
Both children are currently residing with their mother in Suburb C. Max has attended school at F School in Suburb G since 2019.
On 24 May 2017, the Federal Circuit Court of Australia made orders in a contested hearing between the parties in relation to the children, Max and T. The orders made at the conclusion of the proceeding included that the Applicant and Respondent have equal shared parental responsibility for the children, Max and T; that the children live with each of their parents on a week about basis, with shared school holidays and special occasion time; that Max attend H School in J Town for his secondary schooling, with T to attend that same school for her secondary schooling upon the completion of her primary schooling at K School in L Town; and that the children were to attend upon Dr M, psychiatrist, or such other suitable child psychiatrist as agreed between the parties, for counselling and education about the mother’s psychiatric condition.
Despite the existence of the above orders, the children have lived mostly with their mother in the period of time since the making of the orders, and they have relocated to an urban area and changed schools. The father has brought no enforcement proceeding, on his evidence, due to the costs of same and the further harmful disruption to family relationships.
The Law
The decision of the Full Court of the Family Court of Australia in Re: Kelvin [2017] FamCAFC 258 (“Re: Kelvin”) sets out the current law in relation to consent for Stage 2 treatment. The Full Court held that:
Where Stage 2 treatment is proposed and the child consents to the treatment, the treating medical practitioners agree that the child is Gillick competent to give that consent and the parents of the child do not object to the treatment, is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent? Answer: no.
This case is before the Court because there is a controversy between the parents. The Respondent objects to the provision of Stage 2 treatment. He also does not agree that Max is Gillick competent. The matter comes before the Court for orders under section 67ZC of the Act. Section 67ZC is as follows:
Orders relating to welfare of children
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.
The jurisdiction under section 67ZC is in addition to that under Part VII – Children – and gives power to the Court to make orders relating to the welfare of children. Thus section 60CB to section 60CE of the Act apply in relation to the determination of Max’s best interests.
Max is a child of the Applicant and Respondent from when they were in a de facto relationship and he is therefore an ex-nuptial child. The jurisdiction to make orders under section 67ZC relating to a medical procedure for an ex nuptial child was considered in Re: Kelvin in relation to an application for authorisation of Stage 2 treatment for Gender Dysphoria that was before the Court. The Court held a child such as Max is a child who falls within the jurisdiction of the Court by virtue of the State being a referring State under the Commonwealth Powers legislation and in particular the Court has section 67ZC powers by virtue of section 69ZE of the Act.
Section 67ZC(1) confers power on the Court upon the application of a parent, to grant any authorisation necessary in circumstances relevant to whether a child is Gillick competent to consent to a medical procedure.
The administration of Stage 2 treatment to a child suffering from the condition of Gender Dysphoria is a decision for the child to make insofar as the child has competence to make the decision. It is a matter for the Court to decide if the child lacks competence to decide for himself/herself.[2]
[2] See Re: Jamie [2013] FLC 93-547; and Re: Jamie [2013] FamCAFC 110.
The Court must decide the question of the child’s competence, determined by application of the evidence to the legal principles enunciated in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, which were confirmed by the High Court in Secretary, Department of Health and Community Services v J.W.B and S.M.B (“Marion’s case”)[3] in the following terms:
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 treatment is proposed.
[3] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 237 to 238; Secretary, Department of Health and Community Services v J.W.B and S.M.B (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218.
The Court has jurisdiction and power to determine a controversy between the parties about consent by making an order or declaration as to Gillick competence under the welfare jurisdiction;[4] a parenting order[5] or an order using the general powers conferred by s 34(1) of the Act[6] including an order dismissing an application made under any of those sections.[7]
[4] Section 67ZC of the Act.
[5] Section 65D(1) and s 64B(2)(i) of the Act.
[6] See Re: Kelvin (2017) FLC 93-809; [2017] FamCAFC 258 at [66].
[7] Re: Imogen (No. 6) [2020] FamCA 761.
Where there is a dispute about diagnosis, consent and/or the nature of treatment, an application to the Court is mandatory.[8]
[8] See Re: Jamie [2012] FamCAFC 8; 46 Fam LR 439: Bryant CJ at [140](b); Finn J at [172] and Strickland J at [192].
Where there is a dispute between the parents, regarding the treatment and/or whether the child is Gillick competent, the Court must make an assessment about whether to authorise Stage 2 treatment by having regard to the best interests of the child as the paramount consideration. In making this assessment, the Court should attribute significant weight to the views of the child in accordance with his or her age or maturity.[9]
[9] Re: Imogen (No.6) [2020] FamCA 761 at [45](f).
Issues to be determined
The following issues are to be determined:
(a)Does Max have Gender Dysphoria as described in the DSM-5?
(b)Is Max Gillick competent?
(c)What future treatment is in Max’s best interests?
Gender Dysphoria
The diagnostic criteria for Gender Dysphoria as it relates to adolescents and adults is set out in the 5th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (2013) (‘DSM-5’), pages 452 to 453 as follows:
A. A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least six months duration, as manifested by at least two of the following:
1. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).
3. A strong desire to the primary and/or secondary sex characteristics of the other gender.
4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).
5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).
6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).
B. The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The World Professional Association for Transgender Health, Standards of Care (“the WPATH Guidelines”) sets out the generally accepted interventions which fall into three stages as follows:
1. Fully Reversible Interventions: these involve the use of GnRH analogues to suppress oestrogen or testosterone production and consequently delay the physical changes of puberty. Alternative treatment options include progestins (most common medroxyprogesterone) or other medications (such as spironolactone) that decrease the effects of androgens secreted by the testicles of adolescents who are not receiving GnRH Analogues, Continuous oral contraceptives (or depot medroxyprogesterone) may be used to suppress menses.
2. Partially Reversible Interventions: these include hormone therapy to masculinise or feminise the body. Some hormone-induced changes may need reconstructive surgery to reverse the effect (e.g., gynaecomastia caused by oestrogens), while other changes are not reversible (e.g., deepening of the voice caused by testosterone).
3. Irreversible interventions: These are surgical procedures. A staged process is recommended to keep options open through the first two stages. Moving from one stage to another should not occur until there has been adequate time for adolescence and their parents to assimilate fully the effects of earlier interventions.
This proceeding is in respect of Stage 2 as referred to above.
The uncontradicted expert evidence is that, Max has Gender Dysphoria. It has been diagnosed by Professor N, consultant in Adolescent Medicine at the P Hospital; Associate Professor B, paediatrician and specialist in Adolescent Medicine at the P Hospital; Dr D, psychologist at P Hospital; Dr Q psychiatrist at the P Hospital; and Associate Professor C, paediatrician at the P Hospital. That diagnosis provides the basis for the treatment proposed by the P Hospital.
In particular, Associate Professor C concluded that Max satisfied five of the six criteria in the A category for Gender Dysphoria (see paragraph 25 above) for the necessary timeframe and was suffering significant distress as a result.
Max was diagnosed in December 2018 with Autism Spectrum Disorder at R Adolescent Health Service (a provisional diagnosis). The fact that Max has a provisional diagnosis of Autism Spectrum Disorder (“ASD”), and suffers from anxiety and depression is not incompatible with his having a diagnosis of Gender Dysphoria. These conditions been taken into account by the relevant clinicians in respect of their assessments of Gillick competence and whether Stage 2 treatment is in Max’s best interests.
In his first affidavit of 9 December 2020, Max set out that he began to identify as a male during the onset of puberty, in 2014, when his body started undergoing changes “with which I became increasingly uncomfortable”. In paragraph 3 of his affidavit he stated:
I first identified myself as male when I was probably five or six. I thought I was just the same as my male friends.
Max started to transition socially over 2016 and 2017 and he has been affirmed as a male since the middle of 2017. At that time he was in year 7 at H School. Max told his mother of the fact that he affirmed as a male in June 2017, and his mother and/or Max told his father sometime in September 2017.
GILLICK COMPETENCE
Evidence of Dr D
Dr D, clinical psychologist at the P Hospital who has worked in the Gender Clinic for two years, saw Max in eight consultations between 7 March and 13 September 2019.
Dr D set out in her Affidavit of evidence under the heading “Gillick competence” the following:[10]
50. My assessment of [Max] is that he is Gillick-competent to make an informed decision regarding Stage 2 treatment, i.e. testosterone. The factors that support my assessment of [Max’s] Gillick competence are that he has demonstrated realistic expectations regarding Stage 2 treatment and has been able to show a high level of comprehension of the risks and benefits associate with the treatment. He has demonstrated he is likely to be accepting of the body he will have with the help of Stage 2 treatment (for example, [Max] is insightful in the areas where gender dysphoria affect him most, in particular that bottom surgery is not a concern or desire for him).
51. I also consider [Max] has realistic expectations of the psychosocial effects of physical gender affirmations, and had a greater capacity than many adolescents his age to be able to place gender in a socio-cultural-political context and, thus, transgender people as being part of a group who experience discrimination in many respects. Socio-cultural awareness is a known protective factor for transgender people that provides a buffer for negative societal attitudes. [Max] has experienced considerable resistance in his life so far, including in his gender affirmation journey, most prominently from his father. He has continued to develop an integrated and stable understanding of his gender identity and has persisted in expressing this and his gender affirmation needs, in spite of significant external pressures and resistance.
52. Additionally, [Max’s] mother, who I perceive to be highly intelligent and articulate, is a protective factor for [Max]. She has shown ongoing support throughout his development and has made decisions to aid [Max’s] gender journey and promote his mental health (for example, moving away from [L Town] where Max experienced bullying).
53. I also felt that [Max] was able to tolerate a hypothetical scenario that there may be a time in the future where he may feel differently about his body and he demonstrated insight and engagement with that concept. [Max’s] ability to tolerate potential doubt is another factor which makes me comfortable in my assessment that he is competent to make an informed decision regarding Stage 2 treatment.
54. Lastly, and importantly, [Max’s] mental health has remained stable during his assessments with me even in times of conflict and distress and this, together with his ability to self-reflect on his mental health, is a factor which I regard as weighing heavily in his favour in assessing his competence and capacity to make an informed decision regarding Stage 2 treatment.
55. In light of these matters, from a clinical perspective, my view is that [Max’s] competency and capacity to make an informed decision regarding Stage 2 treatment is straightforward. I am fully supportive of him proceeding with Stage 2 treatment.
[10] Affidavit of Dr D sworn 7 December 2020.
Associate Professor C is a consultant paediatrician who works predominantly at the P Hospital. He is also a clinical scientist fellow who conducts research in relation to the understanding and treatment of Gender Dysphoria. His evidence was that he has seen Max in the Gender Clinic on three occasions since 2 May 2019. By that time, Max had already attended three appointments with Dr D, clinical psychologist at the Clinic. At the time of his first assessment of Max, Associate Professor C noted that Dr D had assessed Max as being a 14 year old birth assigned female with an affirmed male gender identity who had socially transitioned in all areas of life and had demonstrated a stable masculine identity and presentation.
Associate Professor C discussed with Max the potential use of testosterone in the future providing Max with information about its short and longer term effects. He provided information to Max regarding testosterone’s mode of administration. He discussed the reversible effects of testosterone including:
…suppression of menstruation, acne, redistribution of fat, increased muscle mass and increased libido. I also discussed the irreversible effects of testosterone including a lower voice pitch, increased hair growth on the face and body, hair loss at the temples and crown of the head, and genital changes which may include enlargement of the clitoris.
He also discussed the limitations of testosterone, noting that its effects varied from individual to individual and most likely depended upon underlying genetic differences, whilst also emphasising that it would not improve any chest dysphoria.
Associate Professor C further discussed with Max the potential risks of testosterone, including the risk of regret (that some people wish they had not taken this step), increased risk of heart disease, liver disease, type 2 diabetes, weight gain and obesity, polycythaemia (an increase in circulating red blood cells), headaches and migraine, and potentially increased aggressive behaviour. Fertility options for Max were discussed as was menses suppression. Following discussion with Max as to his largely estranged relationship from his father as reported by Max, together with as reported by Max his parents’ acrimonious relationship, Associate Professor C indicated to Max it would be important to involve his father moving forward and noted that both Max and his mother were happy for the father to be invited to future appointments at the gender clinic.
Consequently, on or about 10 July 2019, Associate Professor C telephoned the father to offer him an appointment to provide information about Max’s plans for gender affirmation including testosterone. Ultimately, the father did not wish to participate in any appointments at the clinic and indicated his opposition to Max undergoing Stage 2 treatment.
Associate Professor C’s evidence in his affidavit of 9 December 2020 at paragraphs 33 and 34 is as follows:
33. [Max] demonstrated a strong understanding of the potential modes of administration of testosterone; its likely onset of action (ie, how long it could take to notice masculinising changes after starting testosterone); the reversible effects of testosterone; the irreversible impacts of testosterone which he identified as hair growth, voice changes, alopecia and clitoral growth; the effect of testosterone on his fertility; its possible impact on his mood; the limitation that testosterone would not impact on his chest and therefore he would likely still suffer from chest dysphoria; and the potential adverse effects of testosterone, which he identified as regret, reduced fertility, irritability and increased propensity for various diseases that are more common in males such as diabetes, obesity and heart disease.
34. During this assessment, it was clear to me that [Max] demonstrated a sound understanding of the likely benefits, risks, side effects and limitations of commencing testosterone. It was also apparent to me that [Max] had weighed the advantages and disadvantages in the balance to arrive at his decision to commence testosterone. I therefore concluded that [Max] was able to make an informed decision (i.e., was “Gillick competent”) in relation to commencement of testosterone (Stage 2 treatment).
Thereafter in his affidavit evidence, Associate Professor C said of Max that:
Consistently demonstrated a strong understanding of the risks and benefits of stage 2 treatment. I consider [Max’s] understanding of the risks and benefits of stage 2 treatment is probably higher than most adolescents of his age.
Evidence of Associate Professor B
Associate Professor B, from the P Hospital Gender Clinic is a paediatrician and specialist in Adolescent Medicine.
Associate Professor B, confirmed that since September 2019, the P Hospital Gender Clinic have not been able to provide any meaningful clinical and/or psychological support to Max, nor medical care, as a consequence of the Respondent indicating that he did not consent to any such support or care.
Associate Professor B gave oral evidence in the proceeding additional to that contained in her Affidavits of evidence. She described Max as a “highly intelligent, highly expressive young man who is very much able to verbally communicate how he is feeling and does so in a very mature way and from my interactions with him, in a very advanced way.” She noted that he has experienced significant distress, anxiety and depression at being unable to access Stage 2 treatment and he remains determined to assume a male identity, as he has for a number of years to the present time.
Associate Professor B gave evidence that the P Hospital Gender Clinic took into account in its formal assessment of Max’s Gender Dysphoria, his formal diagnosis of Autism Spectrum Disorder, albeit high functioning, together with his suffering from anxiety and depression which was consistent with his presentation to the P Hospital in the first instance. She observed in her evidence that there was “a known association”, likely to be a “genetic connection” between the conditions of Autism Spectrum Disorder and Gender Dysphoria into “approximately 15% of those who have Gender Dysphoria also having been diagnosed with Autism Spectrum Disorder.” Likewise, approximately 75% of young people with Gender Dysphoria have depression and approximately 72% have anxiety derived, not necessarily from the incongruence between one’s gender identity and their birth assigned sex, but through a multitude of negative experiences they have on a day-to-day basis. This included family rejection, social isolation and peer conflict. Associate Professor B gave evidence that the psychotic symptoms exhibited by Max as reported by him, were also noted by Dr D, Associate Professor C and Dr Q. They were considered by the clinicians to be consistent with extreme anxiety and not indicative of another diagnosis such as schizophrenia. The fact that Max identified for a time as a lesbian in earlier adolescence was also considered by the P Hospital clinicians with Associate Professor B giving evidence that such identification was a well-recognised phenomenon for trans-male adolescents and did not negate Max assumed identity as a male.
Associate Professor B also gave evidence as to discussions had with Max around informed consent and what might happen if a young person changed their mind – that is, regret about treatment. The issues canvassed included testosterone’s effects on fertility; a change of gender identity at a later time; and regret from a psychosocial perspective, the “highest form of regret.” Discussions had also included what parts of the treatment were reversible, and what were not. There was an acknowledgement that being transgender “is very difficult”, a “life of negative experiences.” Associate Professor B observed that Max’s response throughout has been “persistent, consistent, and absolutely insistent”, “namely that he wishes to be consistently male”, as he has felt since his primary school years, and as he has publically identified for four years, a significant part of his life. Max has expressed to her that he considers treatment something “he absolutely needs to survive and to be himself.” There is no evidence he has been, nor could be influenced by other people, including his mother as claimed by his father. In Associate Professor B’s view, Max’s male gender identity remained consistent across all psychological, paediatric and psychiatric assessments and was independent of any third party including family members.
Evidence of Max
In paragraphs 9, 10 and 11 of his affidavit sworn 9 December 2020, Max said as follows:
9.I attended the [P Hospital] gender clinic in December 2018 and have been a patient there for over two years now. Since my diagnosis of gender dysphoria I have done significant research on stage 2 treatment in order to understand everything about it: the impact, the risks and how it is delivered. I have also received information from Associate Professor [C] at the [P Hospital] and have been able to discuss the treatment and ask questions. I understand the risks and that certain effects are irreversible, and that there are limitations to what testosterone can achieve. I understand that in some cases there is uncertainty about the long term impact of the use of testosterone, and that effects can vary from individual to individual as genetic disposition can play some part. I understand that it does not act as a contraceptive.
10.I do not have any desire to become pregnant and have no wish to undergo egg storage. I am on a contraceptive to suppress periods and I sometimes get breakthrough bleeding which causes me great mental and emotional agony.
11.I have developed female breasts which also distresses me and I would like them removed in the future. In the meantime, I bind my chest to mask them.
Max’s wishes in respect of Stage 2 treatment being administered to him are before the Court in his two affidavits. In those Affidavits of evidence, Max has set out his wishes in respect of the administration of Stage 2 treatment to him, and the reason for his wishes. He has set out his understanding of relevant matters. He refers in his affidavit of 19 April 2021 at paragraph 12 to his “powerful desire not to have to wait until my 18th birthday next year before being able to proceed with the next phase of my life”.
In his affidavit of 20 April 2021, Max answered the issues raised by his father concerning his auditory and visual hallucinations, his understanding of Stage 2 treatment and the current treatment undergone by him for his mental health. He said of his father that he had not felt his father had been accepting “of my identity as a male”. The expression of his wishes are thoughtful and strongly expressed.
Evidence of the Applicant
The Applicant’s affidavit evidence sworn 7 December 2020 also addressed the question of whether Max was Gillick competent. The Applicant stated as follows:
16. I have no reservation in saying that over the last three years, [Max] has thought deeply about his gender and made decisions about it. I am confident he understands his options and that he has a passionate and considered wish for stage 2 treatment. He appreciates its limitations and that it carries some risks. I am supportive and respectful of his wishes.
The Applicant said that Max first told her that he affirmed as a male on 23 June 2017. She recalled that:
3. I recall that he spoke very clearly and eloquently about it and it was obviously the result of much thought and time. I recall that at the time he indicated he had been wrestling with it internally for approximately two to three years. He had told me one and a half years earlier that he was bisexual, and then lesbian, and then clarified that in fact he identified as a male.
Best interests of Max
It was Associate Professor B’s considered view that Max understood the totality of the discussions had with him about Stage 2 treatment and had been able to put forward his views in “a very reasonable, logical way.” Further, that his best interests were advanced by allowing him to access affirming care so that Max can live as a man, and be recognised as such, by having masculine attributes. It was her opinion that having autonomy and agency in the expression of his gender identity would improve Max’s mental health and general wellbeing and would be in his best interests.[11]
[11] Affidavit of Associate Professor B sworn 7 December 2020 at paragraph 118.
In respect to the best interests of Max, Associate Professor B agreed with Dr C that:
118.Stage 2 treatment is in [Max’s] best interests. I am of the view that Stage 2 treatment is both clinically indicated and now necessary for [Max’s] welfare. I believe that further delays to [Max] accessing this treatment could be life-threatening.
…
120.I am satisfied that [Max] has sufficient understanding and intelligence to be able to appreciate comprehensively what is proposed by Stage 2 treatment. He has been fully informed of the risks of Stage 2 treatment and has, on repeated occasions, demonstrated his understanding of those risk to the satisfaction of [Drs D, C and Q].
Associate Professor B stated that it is now necessary in Max’s case to improve his mental state by rendering his body consistent with his gender identity.
At paragraph 52 of his affidavit evidence, Associate Professor C said of Max that he was able to make “a mature and measured decision with regard to commencing testosterone.” Associate Professor C concluded that he believed it was in Max’s best interests to start Stage 2 treatment sooner rather than later, and that it was likely his mental health would improve significantly once he was able to commence Stage 2 treatment.
Conclusion
I find that Max has Gender Dysphoria as described in the DSM-5.
The clinical assessments before the Court are consistent with the other evidence before the Court, all of which establishes on my view that Max has the necessary Gillick competence. He has achieved “a sufficient understanding and intelligence to enable him …to understand fully what is proposed”. There is sound evidence that he has been provided with information about the risks to him, together with information material to his decision-making, such as the benefits, likely effects of the treatment and alternative options.
Max has demonstrated the ability to understand the information that he has been provided with in relation to Stage 2 treatment, and to provide a full explanation of that understanding to his level of maturity and education.[12] He has been able to describe the advantages and disadvantages of the treatment, including its limitations, and I am satisfied that he has been able to weigh those in the balance.[13] The decision that he himself has reached is an informed one,[14] and a realistic one.
[12] Re Lincoln (No. 2) [2016] FamCA 1071 per Johnston J; Re Elliott [2017] FamCA 1008 at [22] per Tree J and Re Imogen (No.6) [2020] FamCA 761 at [183]-[184].
[13] Re Lincoln (No. 2) [2016] FamCA 1071 per Johnston J; Re Elliott [2017] FamCA 1008 at [22] per Tree J and Re Imogen (No.6) [2020] FamCA 761 at [183]-[184].
[14] Re Lincoln (No. 2) [2016] FamCA 1071 per Johnston J; Re Elliott [2017] FamCA 1008 at [22] per Tree J and Re Imogen (No.6) [2020] FamCA 761 at [183]-[184].
I am also satisfied that Max understands that there are possible, in particular adverse consequences, that cannot be at this point in time, entirely understood and/or foreseen.
Further, Max understands that the proposed treatment is not the solution to all of his co-existing psychological and social difficulties.[15]
[15] Re Lincoln (No. 2) [2016] FamCA 1071 per Johnston J; Re Elliott [2017] FamCA 1008 at [22] per Tree J and Re Imogen (No.6) [2020] FamCA 761 at [183]-[184].
I am satisfied that Max is fully alert and orientated and not in physical pain or suffering from severe anxiety when expressing his opinions.[16] He is not suffering from any hallucinations or delusional thoughts. I am also satisfied that Max was free to the greatest extent possible from any temporary factors that could impair his judgment when he provided his consent to Stage 2 treatment.[17]
[16] Ibid.
[17] Re Elliott [2017] FamCA 1008 per Tree J at [22].
The question as to what treatment Max has, is to be determined with regard to Max’s best interests as the paramount consideration.[18] Taking into account all of the s 60CC(2) and (3) considerations, I find that it is in Max’s best interests to accept the unanimous and uncontradicted evidence and recommendations made by Associate Professor B, Associate Professor C and Dr D, as well as the evidence from the Applicant and Max. The Court concludes that permitting Max to receive Stage 2 testosterone treatment forthwith is in his best interests.
[18] Sections 67ZC(2) and 60CA of the Act.
In having regard to the best interests of the child as the paramount consideration, I have given significant weight to Max’s views in accordance with his maturity and level of understanding.[19]
[19] Re Jamie [2012] FamCAFC 8; 46 Fam LR 439 per Bryant CJ at [140](f).
COSTS
Ordinarily each party shall pay their own costs. The Applicant has made an application for costs. On the hearing of the matter, I indicated that there was insufficient evidence before me, from both parties, to properly consider that matter pursuant to s 117(2A) of the Act. Further, that the Respondent was not compelled to consent to the orders and declarations as sought by the Applicant. Ultimately, the Respondent did not contest the evidence before the Court in any meaningful way, thereby reducing legal costs. I would be reluctant to entertain such an application noting that the award of costs is a discretionary matter, but shall do so if the Applicant wishes to proceed with such a costs application under the relevant section of the Act, supported by all of the necessary evidence.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 26 May 2021