Re: Ryan

[2017] FamCA 821

FAMILY COURT OF AUSTRALIA

RE: RYAN [2017] FamCA 821

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – where the applicant is the mother of a child diagnosed with Gender Dysphoria – where the respondent father opposes the child’s treatment for the condition – where the applicant mother seeks a declaration that the child is competent to consent to both Stage 1 and Stage 2 treatment for Gender Dysphoria – where such a declaration is only required in respect of Stage 2 treatment – where the child is found and declared to be Gillick competent – where the parents agree to change the child’s registered name upon administration of treatment  

Family Law Act 1975 (Cth) ss 4, 61B, 61C, 121(9)

Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112

Goode & Goode (2006) FLC 93-286

Re: Jamie (2013) FLC 93-547

Secretary, Dept of Health & Community Services & JWB & SMB (1992) 175 CLR 218

APPLICANT: The Mother

RESPONDENT: The Father

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 18 September 2017

JUDGMENT OF: Austin J

HEARING DATE: 18 September 2017

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. Declaration that Ryan (formerly known as B), born in 2002 (‘the child’) is competent to consent to the administration to him of Phase 1 and Phase 2 treatment for the condition known as ‘Gender Dysphoria’.

2. So as to protect the child:

a.   The child’s full name, the names of his family members and his medical practitioners, this Court’s file number, the State in which the proceedings were initiated, and any other fact or matter that might identify the child shall not be published in any way;

b.   Only anonymised reasons for judgment and orders shall be released by the Court to non-parties without contrary order of a Judge; and,

c.   No person shall be permitted to search the Court file in these proceedings without first obtaining leave of a Judge.

1. 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 applicant and the child have leave to publish a copy of these orders and a copy of the reasons for such orders, which are not anonymised pursuant to Order 2 hereof to the child’s treating medical practitioners.

2. Any and all other outstanding applications are dismissed.

NOTATION

A.The father acknowledged that if the child consents to his administration of Phase 2 treatment for Gender Dysphoria, and that treatment is administered to him, it would be desirable for the parties to then approach the Registrar of the State Authority to change the child’s name in the register.

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

EX TEMPORE

REASONS FOR JUDGMENT

1. On 21 August 2017, the applicant mother filed an Initiating Application seeking declarations in respect of her 15 year old child, who was born female but identifies as male. The child was diagnosed with the condition of Gender Dysphoria, as defined in DSM-V. 

2. The applicant now seeks declarations in the following terms:

   (a)the child be declared “Gillick competent” to consent to both Phase 1 puberty-blocking hormone treatment and to Phase 2 cross-hormone (testosterone) hormone therapy treatment, as may be clinically indicated for the treatment of Gender Dysphoria on and from a date to be determined by the treating medical team of the child; and

   (b)the Registrar of the State Authority register the change of the child’s name to Ryan and that the parents do all things as may be necessary to facilitate the change of name.

3. The application was opposed by the respondent father, who appeared at the hearing following an adjournment of the original hearing to ensure that he had sufficient time within which to respond to the mother’s application. 

4. In support of her application, the mother relied upon:

   (a)her affidavit filed on 21 August 2017; 

   (b)the affidavit of her partner, Mr L, filed on 21 August 2017;

   (c)the affidavit of Dr P, filed 21 August 2017; 

   (d)the affidavit of Dr T, filed 12 August 2017; 

   (e)an email received from the State Child Welfare Department, dated 7 September 2017 (Exhibit M1), which evidenced the Department’s service with the mother’s application and the Department’s disinclination to intervene in the proceedings; and

   (f)a copy of the child’s current birth certificate (Exhibit M2).

5. The father relied upon his affidavit sworn/affirmed on 15 September 2017, which was not filed and was therefore tendered as an exhibit (Exhibit F1).

Treatment

1. Although the mother’s application for a declaration about the child’s Gillick competence included the child’s competence to consent to Phase 1 treatment for Gender Dysphoria, the declaration need not necessarily be so wide. Phase 1 treatment is not irreversible and the Court’s supervision is not required for the administration of Phase 1 treatment. Nonetheless, the Court was informed the child has not yet been administered with Phase 1 treatment and no harm is done by including that aspect of the child’s prospective treatment within the terms of any declaration made.

2. Phase 2 treatment for Gender Dysphoria is, however, irreversible and so decisions about a child’s administration with that form of treatment must be made on sound evidence. The decision about its authorisation is regarded as one which falls beyond the limits of parental responsibility for a child and the law does not permit the Court to enlarge the powers of parental responsibility enjoyed by parents beyond its ordinary limits (see Secretary, Department of Health & Community Services & JWB & SMB (Marion’s case) (1992) 175 CLR 218).

3. The administration of Phase 2 treatment to a child suffering from the condition of Gender Dysphoria is a decision for the child to make, provided he or she has the competence to make the decision, and it is a matter for the Court to decide if the child lacks competence to decide for him or herself (see Re: Jamie (2013) FLC 93-547).

4. 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 & Wisbeck Area Health Authority [1986] AC 112, which were confirmed by the High Court in Marion’s case (at 237-238) 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 retreatment is proposed.

5. Relevantly then, is the child competent to give his doctors informed consent to administer him with Phase 2 treatment?

6. The mother deposed that she and the child had an appointment with the child’s general practitioner in April 2016 concerning the child’s predicament and, as a consequence of that appointment, the child was referred to an organisation called “Headspace” for general counselling, which began in late May 2016 and continued fortnightly until September 2016.

7. Following the child’s engagement with Headspace, he was referred to Dr P, and he began consulting Dr P in November 2016.  It was Dr P who made the diagnosis of Gender Dysphoria and referred the child to the Paediatric Endocrine Unit at a Hospital in City E. According to the mother, it was a requirement of the hospital that a second opinion be sought about the child’s condition, which was provided by Dr T.

8. Dr P prepared a report, which was annexed to her affidavit filed in these proceedings. Dr P confirmed she had been seeing the child since December 2016 and had seen him on six occasions up to the time her report was prepared on 29 May 2017. She confirmed the child meets the diagnostic criteria for Gender Dysphoria in adolescents, as described in DSM-V. Dr Goodyear described Phase 2 treatment in the following terms:

   The phase 2 treatment for (the child) 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/ache and scalp hair loss.

9. Dr P reported further, in respect of the child:

   (The child’s) health and emotional wellbeing is almost certain to deteriorate without testosterone. His mental and physical health is dependent on his perception of himself as male. Research also indicates the negative long term effects of non-treatment of gender dysphoria and the benefits of treatment supporting young people in their gender identity. I have noted, as we have waited for medical treatment to be approved, that his mood has deteriorated. He is not suicidal, but expresses frustration with being misgendered and not receiving the treatment he requires.

10. Dr T, to whom the child was referred for a second opinion, also provided a report, which was annexed to his affidavit filed in these proceedings. Dr T confirmed he has been providing the child with service since 23 November 2016. In respect of the child, Dr T reported as follows:

    Over the time I have known him, (the child) has consistently demonstrated a good level of general intellect, personal insight and emotional maturity. This is consistent with report from his mother. It is my understanding he has attended and been involved in discussion during all medical appointments. He has also independently undertaken extensive research regarding his condition and its treatment pathways. I am thus confident that (the child) is well-informed about the procedure and well-capable of making decisions about his undertaking both phase 1 and phase 2 of hormonal treatment. He clearly and strongly agrees with undertaking the procedure.

11. The father still refers to the child as a female and deposed as follows:

    My daughter first expressed her thoughts of being transgender to me in late October 2016 via text message. Before this I had known nothing about this matter. Initially I played along, thinking that this may have been some childish fantasy/phase she was going through, but the more I talked to her on the phone the more I realised it actually was not, eventually telling her we need to talk in person.

12. Clearly, the father now understands that gender is an issue of fundamental importance to the child and not merely some passing phase.  Unfortunately, when he did speak with the child face-to-face in December 2016, their discussion descended into argument. The father perceived the child refused to answer his questions about “why she wanted to change her name and who had influenced her to make this decision?”. The argument between them caused their estrangement and they have had little or no contact since that point in time.

13. The father believes the child is too young to make a decision about gender alteration. He deposed as follows:

    Even then, I believe 16 (in my opinion) is still too young to make such permanent life changing decisions, and as a form of discipline I wish to no longer bear any responsibility or contact with my daughter if she chooses to make these inappropriate decisions in her life at her age [sic].

14. Given the father believes it is appropriate to sever interaction with the child as a form of discipline for making a decision with which he disagrees, their estrangement has not since improved.

15. In relation to Dr P’s expert evidence, the father deposed as follows:

    Personally, I believe my daughter has not been given psychological help for her depression and anxiety by [Dr P] or … but rather indoctrinated by them to push their cause. After all, and after some research, I have found that both these individuals are associated with a private company/group called the [B Group] or the [C Group]. Which is all about encouraging gender diversity and acceptance. Hence I believe rather than treating my daughter’s psychological problems, I believe she has rather been brainwashed by this individuals that going transgender will solve all her problems [sic].

16. Although I understand the father’s alarm at such a fundamental change as reversal of his child’s gender, he needs to understand that the question for determination by the Court is whether the child now has sufficient competence to make the decision about that change for himself. The evidence of Dr T, in my view, establishes the child does have such competence and, as a consequence, I will make the declaration sought by the mother. The father’s evidence at least implies his belief the child does have such competence and his opposition to the mother’s application is due simply to his disagreement with the child’s decision.

17. The mother initially sought other orders in the alternative, should the primary declaration not be granted: first, that she be authorised to consent to the treatment on the child’s behalf; and secondly, that the child be granted parental responsibility to make his own decisions about administration of the treatment. In my view, neither of those orders is appropriate and the mother’s abandonment of them was sensible.

18. In the first instance, an order purporting to authorise the mother to provide informed consent on the child’s behalf to the doctors would infringe the principles which fall from both Marion’s case and Re: Jamie; namely that the decision about the authorisation of such treatment falls beyond the limits of parental responsibility and the Court does not have the power to enlarge the ordinary ambit of the parents’ parental responsibility.

19. In the second instance, the Full Court in Re: Jamie unequivocally said that once a child was determined by the Court to be “Gillick competent” the Court has no further role to play. If, as the mother sought in the alternative, the Court was to invest the child with parental responsibility in respect of decisions related to his medical treatment then the Court would infringe the Full Court’s admonition by meddling in the allocation of parental responsibility for the child.

Name Change

1. Unlike decisions about some forms of profound medical treatment for children, which fall outside the scope of parental responsibility held by a child’s parents or other carers, decisions about the name by which a child is known lie within the ordinary scope of parental responsibility. 

2. In this instance, the child’s parents are separated. They each have parental responsibility for the child (s 61C of the Family Law Act 1975 (Cth)), which responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). That power may be exercised either jointly or individually (see Goode & Goode (2006) FLC 93-286 at [33]-[39]).

3. Any issue about a child’s name is defined to be a “major long-term issue” in relation to the child (s 4) and so, absent contrary Court order, decisions about a child’s name fall to be decided by the child’s parents. Until now, the parents have been unable to agree upon any change of the child’s name to coincide with his assumed male gender, but today the father confessed it would be appropriate for him and the mother to change the child’s registered name in the State Register if the child decides to continue with his treatment for Gender Dysphoria. The parents should, therefore, jointly approach the Registrar of the State Authority to change the child’s name under the State Act administratively, once the child makes his decision to proceed with treatment. If the father resiles from his stated position, it will be necessary for the mother to initiate further proceedings against him for orders enabling the child’s name to be changed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 September 2017.

Associate: 

Date:  11 October 2017