Re: Nadia

[2017] FamCA 526

FAMILY COURT OF AUSTRALIA

RE: NADIA [2017] FamCA 526

CHILDREN – MEDICAL PROCEDURE – Gender Dysphoria – Applicant parents seek an order that child is competent to consent to Stage 2 treatment for Gender Dysphoria – Whether child is Gillick competent – Where parents and child’s treating medical practitioners are of the view that child is Gillick competent – Finding that child is Gillick competent to consent to Stage 2 treatment – Finding that benefits of proposed treatment significantly outweigh any risks associated with it – Where it is in the child’s best interests to undergo Stage 2 treatment - Where orders relating to confidentiality are made

Family Law Act 1975 (Cth) s 121(9)

Re Jamie (2013) 278 FLR 155
Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112
Secretary, Department of Health & Community Services v JWB &SMB (“Marion’s Case”) (1991-1992) 175 CLR 218

FIRST APPLICANT: The Mother

SECOND APPLICANT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 11 July 2017

JUDGMENT OF: Tree J

HEARING DATE: 21 April 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

THE COURT FINDS AND IT IS DECLARED THAT:

1. Nadia, born … 2001 (“Nadia”) is competent to consent to the administration of stage two treatment for the condition called Gender Dysphoria in Adolescents and Adults.

AND IT IS FURTHER ORDERED THAT:

1. The full name of Nadia, her family members, hospital, medical practitioners, school, this court’s file number, the State of Australia in which the proceedings were initiated, the name of Nadia’s mother and father and any other fact or matter which may identify Nadia shall not be published in any way.

2. 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.

3. That Nadia be at liberty to identify herself as the subject of this application and as the child the subject of the reasons for decision for these orders if she may choose.

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 Nadia have leave to publish to Nadia’s treating health practitioners a copy of these orders which are not anonymised.

5. Further to Orders 4 and 5 above, each of the parties to these proceedings, and Nadia herself, shall be at liberty to collect by hand a full copy of the orders and any reasons for judgment published hereunder with all of the identifying details.

6. No person be permitted to search the court file in this matter without first obtaining leave of a judge.

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: Nadia 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 & The Father

Applicants

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 21 April 2017 I found and declared that Nadia (born male … 2001, and hence presently 16 years of age) was competent to consent to undergoing irreversible stage 2 treatment for Gender Dysphoria.  Additionally, I pronounced ancillary orders as made in relation to non-publication and the like.  These are my reasons for so doing.

THE MATERIAL BEFORE ME

1. The applicants (Nadia’s parents) relied upon the following material:

   (a)An affidavit of the mother filed 19 April 2017;

   (b)An affidavit of the father filed 19 April 2017;

   (c)An affidavit of a child and adolescent psychiatrist, Associate Professor E, filed 19 April 2017;

   (d)An affidavit of a paediatrician, Dr N, filed 19 April 2017.

BACKGROUND FACTS

1. Although born male, both Nadia’s parents recollect that she was noticeably different to other young boys, in that she seemed to be more attracted to feminine toys and clothing.  Both parents agreed to “let nature take its course.”  Those behaviours continued into puberty, and led to children teasing her at school.

2. On 19 September 2014 Nadia told Dr N that she has “known she was a girl since I could talk.”  She disclosed that belief to her father during a camping trip, and since then both parents have supported her in her transitioning from a social male to female.  She commenced to take puberty blockers and investigated the process of transitioning to female via material she accessed on the internet.

RELEVANT LEGAL PRINCIPLES

1. Relevant to this application are the following uncontroversial (in the sense that I am plainly bound by them) propositions of law derived from the Full Court decision of Re Jamie (2013) 278 FLR 155 at [140] per Bryant CJ:

   ·In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent;

   ·If the child is Gillick competent, then the child can consent to the treatment;

   ·The question of whether a child is Gillick competent, even where the treating doctors and their parents agree, is a matter to be determined by the court.

2. It also uncontroversial that Gillick competence is established if the child in question “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”: see Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112 at 183-184 and Secretary, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1991-1992) 175 CLR 218 at 237.

IS NADIA GILLICK COMPETENT

1. The evidence supports finding that Nadia:

   ·Has a longstanding history of symptoms consistent with Gender Dysphoria from a time prior to puberty;

   ·Is well aware of the effects which Oestrogen will have on her body, and the possible long-term risks associated with taking it;

   ·Has been unwavering in her desire to develop as a female for a number of years and indeed has never identified as male.

2. Further, both Dr N and Associate Professor E are of the view that Nadia has achieved a sufficient understanding of what is proposed such that she is able to make an informed decision about the proposed procedure.

3. The material therefore satisfies me that Nadia is Gillick competent.

4. If I am wrong as to that, then Dr N, Associate Professor E, and both of Nadia’s parents, are all of the view that the benefits of the proposed treatment significantly outweigh any risks associated with it.  I accept that evidence.  I am therefore satisfied that it is also in Nadia’s best interests to undergo the treatment now rather than waiting until she turns 18.

CONCLUSION

1. For these reasons I made the orders which I did on 21 April 2017.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 July 2017.

Associate: 

Date: 11 July 2017