Re: Rowan
[2022] FedCFamC1F 134
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Rowan [2022] FedCFamC1F 134
File number(s): By Court order file number is suppressed Judgment of: SCHONELL J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW – CHILDREN – GENDER DYSPHORIA – Where the child seeks stage two hormone treatment – Where the child is Gillick competent – Where the child’s medical practitioners and mother support the treatment – Where the father also provided consent for the treatment – Where the mother and child have not communicated with the father since 2017 – Where the mother seeks sole parental responsibility – Where the mother also seeks to formally change the child’s name – Where the Court considered the s 60CC(2) primary considerations and s 60CC(3) additional considerations to determine what was in the child’s best interests – Where the Court found that it was in the best interests of the child for the mother to have sole parental responsibility, for the child to undergo stage two treatment and for the child’s name to be changed. Legislation: Births, Deaths and Marriages Registration Act
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited: Re Kelvin (2017) FLC 93-809; [2017] FamCAFC 258 Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 11 March 2022 Representation By court order the names of legal practitioners are suppressed ORDERS
SYC 714 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.The mother (“the mother”), shall have sole parental responsibility for decisions about the long-term care, welfare and development of the child Rowan born 2004 (previously known as X), to the exclusion of the father (“the father”), including but not limited to the provision of any necessary parental consent for:
(a)Stage two treatment being administration of cross-sex hormones for Rowan, with such treatment to be provided on and from a date determined by Rowan’s medical practitioners, and in such manner and with such frequency as determined by Rowan’s treating medical practitioners.
2.The child shall henceforth be known as Rowan.
3.For the purposes of the Births, Deaths and Marriages Registration Act, in the state in which the child resides, a change of name for the child from “X” to “Rowan” is approved by the Court.
4.The registrar of Registry of Births, Deaths and Marriages is to register this change of name for the purposes of the Births, Deaths and Marriages Registration Act, in the state in which the child resides.
5.The mother to do all things and sign all documents necessary to give effect to Orders 3 and 4 above.
6.The full name of the child Rowan (born X), his family members, his hospital, his medical practitioners, his school, this court’s file number, any Court Child Expert, the state of Australia in which these proceedings were initiated, the name of Rowan’s parents’ lawyers, and any other fact or matter that may identify Rowan, 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, with it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover sheet of the reasons for judgment that includes the file numbers and lawyers’ names.
7.The mother be at liberty to provide a copy of the un-anonymised orders and un-anonymised reasons for judgment to all persons involved in the child’s treatment.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
This is an application by the mother (“the mother”) for various parenting orders in relation to the child Rowan, who is aged 17 years, and who was born female but identifies as male. Rowan has been diagnosed with Gender Dysphoria.
Rowan’s birth name was X.
The respondent to the application is Rowan’s father (“the father”). The father has not taken part in the litigation.
I am satisfied for reasons set out below that the father had notice of the application and the hearing dates.
This matter was first listed before me on 21 February 2022 for directions. Given the urgency identified in the history set out below, it was necessary to allocate the matter to the first available hearing date.
The matter was listed for hearing on 11 March 2022. On that date, the father did not appear. As a consequence of the Court’s concerns for Rowan’s mental health, the Court made final orders that day and indicated that it would deliver reasons shortly thereafter. These are those reasons.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Initiating Application filed 10 February 2022;
(2)Notice of Risk filed 8 February 2022;
(3)Parenting Questionnaire filed 8 February 2022;
(4)Affidavit of the mother filed 8 February 2022;
(5)Affidavit of Dr B filed 11 February 2022;
(6)Affidavits of Mr C filed 14 February and 8 March 2022;
(7)Affidavit of Dr D filed 17 February 2022; and
(8)Case Outline filed 8 March 2022.
THE CHILD AND THE PARENTS’ POSITION
Rowan has been diagnosed with Gender Dysphoria and wishes to undergo stage two hormone treatment to assist him in relieving the symptoms associated with his diagnosis. The mother supports that Rowan receive stage two treatment.
A report has been prepared by Dr B. Dr B is a psychiatrist and staff specialist with the Child and Adolescent Mental Health Service in the Region E. There is no issue that Rowan has Gender Dysphoria. Dr B describes stage two treatment at page 2 of her report as follows:
The Phase 2 Treatment for Rowan involves administration of Testosterone to initiate the secondary sexual characteristics and appearance of the male sex. This includes facial hair, deepened voice, increased muscle mass/strength, altered body fat distribution, cessation of menses, clitoral enlargement, and vaginal atrophy as well as skin oiliness/acne and scalp hair loss (2).
Until 9 March 2022, the only notice the mother had of the father’s attitude to Rowan’s treatment was an email dated 21 October 2021, where he said: “I will not hesitate to consent to any and all treatments that will provide the best outcome or prospects for X’s wellbeing and future” (mother’s affidavit filed 8 February 2022, annexure AP-16). On 9 March 2022, the father in response to service of various documents upon him by the mother’s lawyer, responded by email saying: “I [The Father] having thought I had already given consent am writing this to say I fully support any treatment that will improve the mental health and quality of life of Rowan (X)” (Exhibit 1).
The approval of this Court is not required for therapeutic treatment, where there is no issue of consent by those with parental responsibility and those who are providing treatment. In Re Kelvin (2017) FLC 93-809, the Full Court of the Family Court of Australia (as it was then) stated:
226. …
Question 2: Where:
2.1 Stage 2 treatment of a child for Gender Dysphoria is proposed;
2.2. The child consents to the treatment;
2.3. The treating medical practitioners agree that the child is Gillick competent to give that consent; and
2.4. 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.
(Citations omitted)
Dr B in her report identifies a number of matters relevant to my determination. On page 3 of the report, she records:
He has engaged with intense mental health and medical interventions over the years to treat his mental health. He came out as transgender November 2020.
Rowan and mum describe their observations of his gender expression over the years, and how he came to the realisation that he is gender diverse.
Rowan was able to discuss how he feels about his body and the difficulties he has with his breasts and genitals. He wants to be seen and treated as male. His mum reports that his mood and mental health has improved since coming out, buying new clothes/throwing out “girl” clothes and getting a new haircut.
Rowan wears a breast binder to flatten the appearance of his chest.
He showers with the lights off, becomes distressed about menstruation and prefers oversized clothing to hide his body.
…
Rowan’s expectation of his future is specifically that of a male. His aspirations are closely linked to being perceived as and treated as, a male.
In order for him to achieve this physical appearance and acceptance, his future aspiration is dependent on the administration of testosterone.
On page 4, she records:
His mum feels his gender identity “makes sense” as she has seen positive improvements in his mental health since coming out/identifying as transgender.
Rowan feels the same way.
On page 5, she records:
I have been working in this area for 5 years. I am a qualified child and adolescent psychiatrist. I feel that Rowan is capable of making an informed decision about the treatment of testosterone.
Rowan wants to start gender-affirming treatment and has been deemed competent to make this decision as it pertains to pubertal suppression and masculinising treatment (testosterone/Stage 2).
…
We have explained to Rowan what his treatment entails – medical workup and ongoing monitoring, pros and cons, effects and side-effects, reversibility and irreversible effects. We have discussed potential impact on fertility.
Rowan indicated that he understood what the treatment entails and feels that proceeding with treatment will be in his best interests, as it pertains to his sense of self and his acceptance of his body. He remains linked in with medical health services and had a realistic expectation of what treatment would change for him.
He acknowledged his history of mental ill-health and was not actively symptomatic at the time of interview and not distressed. He was actively engaged in the discussions.
On page 6, she records:
In conclusion, it is in the best interest of Rowan to have Phase 2 Treatment for Gender Dysphoria. This is evidenced by Rowan’s ongoing distress from Gender Dysphoria, the likely negative long-term impacts of non-treatment, the non-existence of alternative treatment, the necessity of Phase 2 Treatment for his long-term health and well-being, Rowan’s agreement to (and in my opinion, his ability to make an informed decision regarding) Phase 2 Treatment and his mother agreeing with him and giving consent for this treatment.
It is clear that Rowan wishes to have the treatment. His mother consents to the treatment. His father’s position is set out in the emails to which I have referred to earlier.
I accept the evidence of Dr B. That evidence clearly establishes, and I find, that Rowan has Gender Dysphoria, that Rowan is Gillick competent, and that Rowan’s best interests are served by him undergoing stage two treatment. I dispense with the requirement of any of the Rules of Court that would prevent me from hearing this application.
SERVICE ON THE FATHER
Since separation, the mother has tried to keep the father informed about Rowan’s life and progress. However, she has not had any contact with the father since 2017.
After being advised by Dr B that the father’s consent for hormone treatment would be required, the mother contends that she attempted to call him on the phone numbers that she had, and that she tried to ascertain his whereabouts by contacting his parents and daughter. The mother also states the she emailed him several times but no answer was received.
On 7 October 2021, the mother advised the Family Dispute Resolution Intake and Assessment assessor of the father’s contact details. On 11 October 2021, the assessor emailed the mother to advise that the father had accepted her invitation to attend mediation.
On 12 October 2021, the mother’s lawyer emailed the father about the proposed treatment for Rowan. On 21 October 2021, the father responded in terms referred to at [10] above. On 22 October 2021, the mother’s lawyer replied to the father asking that he provide his contact details. The father did not respond to this email.
On 16 November 2021 and again on 20 January 2022, the mother’s lawyer advised the father of the mother’s intention to commence proceedings. The mother’s lawyer also requested that the father provide his contact details, including his postal address.
On 3 February 2022, the mother’s lawyer emailed the father with a document titled ‘Informed consent for treatment with testosterone’, which had been provided by a clinic at Hospital F.
On 8 February 2022, the mother commenced proceedings seeking final parenting orders.
On 10 February 2022, the mother’s lawyer emailed the father a copy of the documents filed in these proceedings. He also phoned the father on both of the numbers provided to him, with one of the numbers being switched off or unavailable, and the other number advising that incoming call restrictions were in place.
On 11 February 2022, the mother’s lawyer emailed the father to advise him about the Court hearing listed on 14 February 2022. The mother’s lawyer also phoned the father on both numbers, with the same messages recorded above being heard. Subsequently, the mother’s lawyer text messaged the father on both numbers. No response from the father was received.
On 14 February 2022, the mother's lawyer once again attempted to phone the father on both numbers. The same messages as recorded above were heard.
The mother’s lawyer, as set out in his affidavit sworn 8 March 2022, made further attempts to serve the father.
On 9 March 2022, the mother’s lawyer received the email from the father, which became Exhibit 1 in the proceedings.
I am satisfied that the father had notice of the hearing date. The father did not appear on the hearing.
BACKGROUND HISTORY
The mother was born in 1973 in Country G and is currently aged 49 years. She is a citizen of both Australia and Country G.
The father was born in 1970 in Australia and is currently aged 51 years.
They are the parents of Rowan, who was born as X in 2004. The parties commenced a relationship in 1997 and began cohabitation after dating for six months. The parties separated in or around June 2005.
The mother contends that the father was violent and used recreational drugs during their relationship.
After separation, the mother and Rowan relocated to Country G in either late 2005 or early 2006. The mother contends that after moving to Country G, the father became hostile and sent her abusive text messages, which she reported to the police.
On 30 June 2006, parenting orders were made by consent in the Family Court of Country G. These orders provided the mother with exclusive responsibility of Rowan.
Between 2005 and 2012, the mother and Rowan returned to visit Australia on about three occasions. During these visits, the mother and Rowan stayed with the father’s parents. Despite arrangements being made for the father to meet Rowan, the father arrived late or rescheduled.
In 2014, the mother was advised about the father’s new email address. She subsequently began updating the father about Rowan via this email. The mother contends that while the father did not reply to these emails, his parents told her that he was receiving them.
In late 2016, the mother and Rowan returned to Australia. Arrangements were made on five occasions for the father to visit Rowan. The father failed to attend on the first four. The fifth occurred in August 2017. The father arrived late and did not engage with Rowan. This was the last time that both the mother and Rowan have seen or communicated with the father.
The mother and Rowan subsequently moved back to Country G. Rowan was enrolled into year 10 and in or around June 2018, the mother contends that his school performance deteriorated. Rowan became depressed after moving back to Country G, and he struggled with anorexia and began self-harming.
Rowan subsequently saw a psychiatrist for about six sessions and was diagnosed with major depression and anxiety. Rowan was unwilling to take anti-depressants. Towards the end of 2018, the mother and Rowan moved to Australia. The mother took Rowan to a health service, an organisation that provides mental health support. Rowan attended for about three months but they could not provide the necessary support to Rowan, who by this time was expressing suicide ideation.
Rowan subsequently sought support from the youth mental health service, where the support is overseen by a psychiatrist. Rowan continues to remain engaged with this service.
The mother asserts that in late 2019, she noticed Rowan beginning to wear gender neutral clothing and a chest binder, and that he would hunch forward when standing. She also noticed Rowan becoming fixated on his food consumption and weight, and that he began rapidly losing weight. Consequently, he was diagnosed with anorexia nervosa. Rowan continued to lose weight and was admitted to hospital for treatment in December 2019.
In or around early March 2020, Rowan was discharged after having spent about three months in hospital. After being discharged, Rowan continued to self-harm and regularly cut himself.
On 9 March 2020, the mother took Rowan to the emergency department after he told her that he did not feel safe. The hospital admitted him overnight. Later that night, Rowan cut himself deeply with a razor. Rowan was subsequently admitted to the Youth Health Unit in Town H in March 2020.
After his discharge from the Youth Health Unit in October 2020, Rowan expressed that he wanted to transition. Following this, the mother and Rowan discussed different names and eventually chose Rowan, which he has gone by since.
In May 2020, Rowan was admitted to the A unit at Hospital J. He was discharged in August 2020. Rowan was referred to a clinic at Hospital F, which provides specialist services to transgender and gender diverse children and young people. In March 2021, he underwent a psychiatric assessment, which confirmed symptoms consistent with Gender Dysphoria.
Following the psychiatric evaluation, in or around March 2021, the mother and Rowan attended Dr B, where she advised on gender affirming care, fertility preservation, puberty blockers and hormone treatment. During this consultation, Rowan stated that he did not want to preserve any eggs because he does not want children. In April 2021, another consultation was held with Dr B, where she prescribed Rowan with the puberty blocker Zoladex. The mother was also advised that Rowan could only have hormone treatment with the father’s consent.
In or around mid-2021, Rowan dropped out of school. He enrolled into a TAFE course and completed a certificate III in December 2021.
On or around 13 July 2021, Rowan commenced fortnightly sessions with a clinical psychologist.
In January 2022, Rowan cut himself quite deeply on his upper thigh.
In February 2022, Rowan attended a clinic at Hospital F for further review. Following this visit, a clinic at Hospital F told Rowan’s case manager from Youth Mental Health Service that they were concerned about his weight and that if he loses more weight he would need to be hospitalised again.
THE LAW
The mother asks that I make a sole parental responsibility order, which she will use to commence stage two treatment. She also seeks orders in relation to Rowan name.
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. Section 60B sets out, not only the objects of the Act, but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child's parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence, which satisfies the Court, that it is not in the bests interests of the child for the presumption to be applied.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child's best interests. These primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm or being exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child's best interests.
In reaching my decision, I have read all the documents referred to earlier and considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
In light of the history identified above, I am comfortably satisfied that it is in the best interests of the child that the presumption pursuant to s 61DA(1) not apply. There are serious concerns raised in the material about Rowan’s mental health and the impact upon him if treatment does not commence as soon as possible. I am very concerned about matters in the mother’s Affidavit, where she records the following:
162.Rowan wants to obtain hormone treatment because he wants to be seen and treated as male. Rowan talks to me regularly about his desire for hormone treatment but he feels as if it will never happen.
163.Rowan has said to me words to the effect of “I am a 17 year old boy who hasn’t started the correct puberty yet. I just want to be a boy”.
164.He has also told me that he does not want people to have second thoughts about how he looks or sounds. He has said that he wants to be able to speak to people without them thinking “oh, that’s a girl”.
165.When Rowan sees a trans person on Tik Tok he will quickly stop watching it as he becomes envious.
166.Rowan is confident in his desire to be a boy.
167.Rowan is distressed by his inability to obtain hormone treatment and Rowan has said that his eating disorder is as a means of controlling his body shape.
…
169.He is continuing to self-harm, including cutting and burning himself. I am aware that he has most recently cut himself quite deeply on his upper thigh in January 2022.
170.Rowan has also said words to the effect “I would rather be dead if I cannot get treatment.”
I find that Rowan is at serious risk of harm if the mother’s orders are not made. It would be entirely inappropriate and inconsistent with his best interests to continue to expose Rowan to such risks of harm if there is a way to possibly alleviate such risk. The mother’s proposal is a way forward that will on the available evidence alleviate that risk.
Section 60CC(3) sets out the additional considerations that are necessary in determining what is in a child’s best interests. Not all of the considerations are relevant to the determination that I am required to make. Those that are relevant are s 60CC(3)(a), being Rowan’s views, which I have already referred to, and I take into account both his evidence and that of Dr B. In particular, I note that Rowan will be 18 in about six months. I note s 60CC(3)(c), being the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decisions. I have already addressed this in relation to the father’s lack of involvement in the child’s life to date, and the mother’s enormous devotion and care giving role in relation to Rowan. Section 60CC(3)(f) addresses the capacity of each of the child’s parents to provide for the child’s needs. I am more than comfortably satisfied that his mother has the capacity and the insight to provide for Rowan’s emotional needs. The orders she seeks are entirely focused on Rowan’s emotional needs. No other s 60CC factor is referrable to my determination.
CONCLUSION
The medical evidence establishes that Rowan has Gender Dysphoria.
Rowan is fortunate to have the support of a mother who clearly loves him and places his interests foremost. He is also assisted by health professionals who clearly have his best interests at heart. I am satisfied that there is sufficient evidence before me that establishes to my satisfaction, that he is aware of the risks of treatment, and that he has been provided with sufficient information in relation to making a decision.
It is clear to me from the evidence of Dr B that Rowan has had the advantages and disadvantages of the treatment explained to him.
I am satisfied that the evidence supports an order for sole parental responsibility in favour of the mother. I am satisfied that it is in Rowan’s best interests that he commence stage two treatment, and propose to make the orders as sought by the mother to enable her to implement such treatment as soon as is possible.
The child has assumed a new name as part of his gender identity. I find that it is in his best interests for his name to be changed and for the registrar of Registry of Births, Deaths and Marriages to register this change accordingly.
I also propose to make orders to the extent that I can to protect his privacy.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 March 2022
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