Re: Max

Case [2021] FamCA 290

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 1071

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

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…

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AGLC
Re: Max [2021] FamCA 290
Case
[2021] FamCA 290
Decision Date

CaseChat Overview and Summary

The proceedings before Hartnett J in the Federal Circuit Court of Australia concerned an application by the mother for orders permitting her child, Max, to undergo Stage 2 treatment for Gender Dysphoria, to which the father did not consent. Max, who was born in 2004, wished to proceed with the treatment. The dispute centred on whether Max possessed Gillick competence to consent to the medical intervention, with the mother and medical experts asserting his competence, while the father disputed the diagnosis of Gender Dysphoria.

The court was required to determine two primary legal issues: firstly, whether Max had been diagnosed with Gender Dysphoria, and secondly, whether he possessed Gillick competence to consent to Stage 2 treatment for this condition. The paramount consideration for the court was Max's best interests in relation to the proposed medical treatment.

Hartnett J found that Max did have Gender Dysphoria, as defined by the DSM-5, and that he possessed the necessary Gillick competence. This conclusion was based on evidence demonstrating Max's sufficient understanding and intelligence to comprehend the proposed treatment, including its risks, benefits, and alternatives. The court was satisfied that Max had been provided with comprehensive information and had demonstrated an ability to weigh this information, reaching an informed and realistic decision. The court also considered the evidence of Max's persistent and consistent gender identity, his expressed desire for treatment, and the views of his treating clinicians.

The court declared that Max was Gillick competent to consent to Stage 2 treatment for Gender Dysphoria and ordered that he be permitted to receive testosterone as prescribed by clinicians at the P Hospital Gender Clinic. Strict confidentiality orders were made to protect Max's identity and the details of the proceedings, with provisions for the anonymised release of judgments and orders.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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