Re: Ryan

[2019] FamCA 112

FAMILY COURT OF AUSTRALIA

Re: RYAN [2019] FamCA 112

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – where the parties are parents of a child diagnosed with gender dysphoria – where the mother supports the child undergoing Phase 3 treatment and commences proceedings to facilitate the child’s wishes – where the father opposes the child undergoing Phase 3 Treatment and seeks orders for the application to be dismissed – where Phase 3 treatment involves a bilateral mastectomy with nipple reconstruction surgery - where the Family Court of Australia has made prior orders – where the Family Court has already made a declaration that the child is competent to consent to the administration of Phase 1 and Phase 2 treatment for gender dysphoria – where an order is made that the child is competent to consent to the administration of Phase 3 treatment to himself – where the matter involves a child who is close to an age where he will be able to make all medical decisions for himself – where the child  understands the nature and consequences  of the treatment proposed.

Family Law Act 1975 (Cth) s67ZC

Re Kelvin (2017) 327 FLR 15
Re Jamie (2013) 278 FLR 155
Re Matthew [2018] FamCA 161

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 16 January 2019

JUDGMENT OF: Cleary J

HEARING DATE: 16 January 2019

REPRESENTATION

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

Orders

1. (1)      Declaration that Ryan born … 2002 is competent to consent to the administration to himself of Phrase 3 treatment [“Top” surgery or “bilateral mastectomy with nipple reconstruction surgery”] for the condition Gender Dysphoria.

2. (2)      That the full name of Ryan, his family members, his hospital, his medical practitioners, his school, this court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated,  and any other fact or matter that may identify Ryan shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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, 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 Reasons for Judgment that includes the file numbers and lawyers’ names.

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

THE COURT NOTES THAT

A.(A)     The undertaking given by each party to the Court on 4 December 2018 is extended until Ryan reaches the age of 18.

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: Ryan 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

The Mother

Applicant

And

The Father

Respondent

REASONS FOR JUDGMENT

Introduction  

1. 1.        This is an application by the applicant mother, for orders in relation to one child, a young person who I will refer to throughout these reasons as “Ryan” who will turn 17 years in three weeks time.

2. 2.        Ryan was born female but identifies as male. 

3. 3.        The orders sought relate to Phase 3 surgical intervention for the treatment of gender dysphoria.  It is not in contest that Ryan has been diagnosed with that medical condition. 

4. 4. The orders sought are for a declaration that Ryan is Gillick competent to consent to his own surgery or that the applicant may authorise that surgery or that the Court should authorise the surgery pursuant to section 67ZC of the Family Law Act1975 (Cth) (“the Act”).

5. 5.        The application is opposed by the respondent father. 

6. 6.        Effectively, by his response, the father asks the Court to dismiss the application, acknowledging that in 12 months time Ryan will be an adult free to make his own decisions.

Evidence

1. 7.        The documents relied on in respect of the application were as follows: 

   The [Applicant] mother

   a.(a)      Initiating Application filed 9/11/2018;

   b.(b)      Affidavit of the mother filed 9/11/2018;

   The [Respondent] father

   a.(c)      Response filed 30/11/2018;

   b.(d)      Affidavit of the father filed 30/11/2018;

   Reports

   a.(e)      Affidavit of a Single Expert Dr N, Plastic Surgeon, filed 9/11/2018;

   b.(f)       Affidavit of a Single Expert witness Dr P, Child and Adolescent Psychiatrist, filed 9/11/2018; 

   c.(g)      Report of Senior Family Consultant dated 20/12/2018;

   d.(h)      An email from the Department of Family and Community Services advising that the Secretary “will not be seeking to intervene in these proceedings” dated 20/11/2018;

   e.(i)       Statement by Ryan dated 2/12/2018;

   f.(j)       Written submissions on behalf of the mother.

   NOTE I also read the decision of Austin J in relation to orders made on 18 September 2017 in prior proceedings.

   At that time, a declaration was made that Ryan was competent to consent to the administration of Phase 1 and Phase 2 treatment for gender dysphoria. 

Brief History of Relevant Events

a.8.        The parties met in 2001 and formed a short-term association during which Ryan was conceived.  The parties did not develop a committed relationship and have never lived together.

b.9.        The father was living overseas when Ryan was born in 2002.

c.10.      For the first three years, there was very little contact between Ryan and the father, the mother asserts by the choice of the father, the father asserts that he acceded to the request of the mother to stay away.

d.11.      From age about four to 11, Ryan spent fortnightly time with the father in or in the area of the home of the paternal grandmother.  During that period, the father began paying child support which the mother asserts was a minimal amount. 

e.12.      In 2011 or 2012, the regularity of visits reduced to monthly.  The mother asserts that the number of visits reduced to meet the father’s convenience; the father asserts that the reduction came after consultation with Ryan in the later years of primary school; whilst conceding that fortnightly visits were “difficult for me financially and work commitments.”

f.13.      What is apparent is that there has always been a rather fractious relationship between the parents.  The evidence of each party supports a conclusion that the presence of both parents together was likely an unpleasant experience for Ryan.  The mother asserts that the father became verbally abusive to her.  The father asserts the mother would “verbally attack and abuse him and he would respond and defend himself.”

g.14.      In 2015, to use his own words, Ryan “began to realise I might be trans.”  He was unhappy about the development of female characteristics.  He was permitted by his mother to cut his hair short and felt gratified when he was “mistaken for a boy” as a result. 

h.15.      In 2016, Ryan was referred to Headspace and then to a child and family psychiatrist by whom he was diagnosed with the condition of gender dysphoria. 

1. 16.      In December 2016, the father and Ryan fell out over Ryan’s decisions about himself.  The father took the view that Ryan was going through something he described as “a phase”.

j.17.      The father, having not lived with Ryan day-to-day, was probably unaware of just how committed Ryan was to changing his body and his name to align with his identity.

k.18.      In 2018, Ryan underwent Phases 1 and 2 of treatment having been declared legally competent to consent to those procedures by this Court.

l.19.      Since then, again, the father has had no personal knowledge of the benefits Ryan has described himself and to the Family Consultant of having that treatment.

The law

a.20.      The decision of the Full Court of the Family Court in Re: Kelvin delivered on 30 November 2017 has changed the state of the law in this area. The earlier decision in Re: Jamie was not confirmed.  Re: Jamie had been authority for the proposition that Stage 2 treatment of a child for the condition of gender dysphoria required the Court’s authorisation pursuant to s 67ZC of the Act unless the child was Gillick competent to give informed consent and that was a decision for the Court. The question relevant to this matter was answered by the Full Court in Re: Kelvin as follows:

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.

a.21.      In this case, an application was made in September 2017 to the Court and determined prior to the delivery of that decision in Re: Kelvin.  A declaration was made in September 2017 that Ryan was competent to consent to Phases 1 and 2 treatment being administered.  The declaration included Phase 1 treatment for completion, not by necessity.  That application to the Court would have been necessary in any event because one of the parents, the father, did object to Phase 2 treatment being administered.  That is the third element identified that is needed to obviate authorisation by the Court.  That is, there is a controversy between parents or doctors over treatment. 

b.22.      A submission was made on behalf of the mother in relation to the decision in Re: Matthew, a decision of Rees J delivered on 16 March 2018.  Her Honour concluded that Phase 3 treatment is therapeutic. 

c.23.      Accordingly, in the absence of controversy between parents or medical professionals about the treatment being appropriate there would be no need for an application to the Court.  Whilst I do not disagree with her Honour’s analysis in that regard, that decision does not bear directly on this case, although the medical facts are similar. 

d.24.      This case is before the Court because there is a controversy between the parents.  Since Ryan was declared to be competent to make a decision about his own Phase 2 treatment, he has undergone that treatment and describes the outcome of it in this way:

I previously made the decision to begin testosterone and it changed me in such a positive way that I can’t imagine where I would be now had I not started it.  It gave me control over my life and has boosted my mental health along with it.

a.25.      Now there is a further application for what is characterised as “Phase 3 treatment” for gender dysphoria.  This phase is surgical, being in this case a double mastectomy and chest reconstruction known as “top surgery”.

b.26.      Again, the mother asked the Court to make a facilitating order because of the controversy between the parents.  The father does not consider Phase 3 treatment is in the best interests of Ryan.  The father feels that Ryan is insufficiently mature to understand the consequences and will live to regret the decision if permitted to make it now.  The strongly expressed preference of the father is that Ryan wait to make the decision as an adult at 18.

The evidence

a.27.      There is evidence from three sources on the issue of the competence of Ryan to make the decision:

b.a)        Expert medical evidence;

c.b)        A report by a Senior Family Consultant;

d.c)        The statements of Ryan himself.

e.28.      Dr P has been regularly seeing and treating Ryan for more than two years.  The doctor considers Ryan is capable of making his own decisions:

The child Ryan is deemed capable of making an informed decision as stated in subparagraph G.  He can list the pros and cons as well as long-term effects of this treatment.  He understands the nature of the procedure.  He feels this will be advantageous for his mental health in the long term. 

a.29.      There is also these references to Ryan’s understanding as follows:

Prior to starting treatment, he experienced intense gender dysphoria and hated his body.  He knows that he is not a cis male (cisgender is a term used to describe people whose gender identity matches the sex that they were assigned at birth) and this makes him very anxious and sad.  Since we met in December 2016, he has been consistent, insistent and persistent that he wishes to be seen as “just a male, not a transgender male”.  He has a panic attack almost every time he had to leave the house.  He hates being seen as “trans”.  He has responded well physically and emotionally to the masculising treatment started in September 2017.  His affect was brighter and more reactive and he looked more comfortable with himself.  In an interview on 8 May 2018, Ryan reported, “I hate my body.  It would be nice not to want to die when I look in the mirror.”  He responded very positively to the changes he has seen in his body:  “my voice changing has been a blessing”.  He feels he will be closer to who he should be once his breasts have been removed surgically.

a.30.      The risks of anaesthesia and surgery have been discussed with Ryan.  Dr N has fully explained the nature and consequences of the surgery.  He too considers that Ryan is competent to make his own decisions:

11I have explained this surgery to Ryan and his mother in detail.  I have explained to them the potential risks and complications which include poor scarring, poor chest contour, sensory loss to the nipples, necrosis of the nipple grafts requiring further surgery and intervention and other relevant complications.  I have provided them with digital information which covers this again and asked them to read this at home and make sure they have a full understanding of this.  As part of the consultation, I have shown Ryan photos of my other patients who have had similar surgery so he has had an understanding of the likely outcome.

12The reason for this surgery is to address Ryan’s severe dysphoria related to the presence of breasts.  This is likely to benefit him dramatically, both physically and psychologically.  The corollary is that if Ryan does not have this surgery, I believe that his dysphoria will persist and cause him ongoing distress which would be inappropriate and inadvised by his treating doctors.

13I do not believe there are any non-surgical or lesser invasive surgical options or other treatments to address his breast related dysphoria.

14Ryan seemed to have an extremely good understanding of the relevant issues and had considered the surgery in-depth before he came to the consultation.  I believe that he is able to make an informed decision about the procedure and he has a good understanding of the benefits of surgery as well as the potential risks and complications inherent to this surgery. 

The Controversy Between the Parents

a.31.      The controversy is over letting Ryan make his own decision where the mother believes Ryan knows his own mind and, independently, she believes that he will benefit from the surgery.  The father believes that Ryan will be better equipped to make the decision when he turns 18 in 2020 although his solicitor fairly conceded that he could not point to any particular factor supporting the assertion that Ryan will be better equipped then than he is now. 

b.32.      The Court has evidence of Ryan having made an informed decision about Phase 2 treatment and having experienced no regrets.  Quite the reverse, he has been profoundly satisfied with the result. 

c.33.      Each of the parties has parental responsibility; they do not agree on this issue.  The mother is the person who has raised Ryan.  The father, after an erratic start, spent regular time and developed a relationship with Ryan.  However, as it became clearer to the father that the child who he had known as a daughter was determined to become a young man, he became more alarmed and opposed to this course.  In his affidavit in support of his Response, the father refers to Ryan as “his daughter” throughout, using the name “Ryan” only once.  The relationship between father and Ryan is strained and there is no present communication. 

d.34.      Ryan feels unsupported by his father and obstructed in his wish to complete his final stage of treatment.

e.35.      I give weight to the fact that Ryan made a decision in favour of Phase 2 treatment and was confirmed in his view of its benefits.   He would be in limbo for 12 months if he was not permitted to make a decision in circumstances where he is revolted by the physical inconsistency of his own body masculinised by Phase 2 treatment and inconsistent with the presence of female breasts.  I accept that there would be significant distraction from his education, impact on his self-esteem and restriction on his ability to participate in the activities of young people his age.  Twelve months in that incongruent state is no small matter. 

The Family report

a.36.      The report of the Senior Family Consultant concludes with this paragraph:

Ryan, at 16 years nine months, is in the important developmental stage of adolescence where young people individuate from their parents and families, become more independent and seek their own way in life.  Decisions and choices made at this time can have a major impact on the formation of a young person’s psychological and emotional coping capacities.  Ryan’s views about his gender are the most important issue he currently faces and resolution of this issue is likely to allow him to concentrate on other important developmental tasks.  He feels it will assist him to feel better about himself and is something he feels is right for him.  If the surgery does not go ahead, it is likely he will feel let down, disappointed and will struggle with his self-esteem and mental health.

Conclusion

a.37.      In this, Ryan, is like many young people, separating himself from both of his parents in anticipation of an independent life.  It is possible, as the father fears, that Ryan will regret his decision, although on the evidence it seems highly unlikely.  It is part of the human condition to regret decisions taken at earlier stages of life.  However, that issue is not determinative here. 

b.38.      The evidence strongly supports that Ryan has sufficient understanding and intelligence to enable him to understand the treatment that is proposed.  He was assessed to be competent in September 2017 by this Court; nothing has changed.  If anything, his understanding has deepened by the consent to Phase 2 and the consequences. 

c.39.      I am told that as a result of an agreement at the previous Court proceedings, a change of name has now taken place to enable the issuing of a new birth certificate for Ryan.  That represents a further stage in the transition to Ryan becoming male and being acknowledged as a young man. 

d.40.      I accept the evidence of the two Single Experts, the Senior Family Consultant, and Ryan himself that he has the relevant ability to make the decision and understand its consequences.

e.41.      Orders are made accordingly.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 16 January 2019.

Associate: 

Date:  16 January 2019