Re: Shay

[2016] FamCA 998

FAMILY COURT OF AUSTRALIA

RE: SHAY [2016] FamCA 998

FAMILY LAW – CHILDREN – Gender dysphoria – parental responsibility – where applicant parents seek that their 17 year old child have responsibility for decisions – orders made.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218
Gillick v West Norfolk AHA [1968] AC 112
Re Jamie [2013] FamCAFC 110

IN THE MATTER OF SHAY (FORMERLY S)

APPLICANT: Mr and Mrs Gleeson

FILE NUMBER: MLC 11126 of 2016

DATE DELIVERED: 18 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Boers, Boers Associates

Orders

1. That SHAY (formerly S) born … 1999 have parental responsibility for all decisions relating to her medical treatment.

2. That the parents have leave to provide to SHAY and the relevant medical practitioners at the X Hospital, a copy of these orders and the reasons for judgment this day.

3. That the application filed 15 November 2016 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Shay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 11126 of 2016

Re: Shay

Ms Gleeson and Mr Gleeson

Applicants

REASONS FOR JUDGMENT

1. By application for final orders filed on 15 November 2016, Mr and Ms Gleeson (“the parents”), seek a variety of orders under a rubric of “special medical procedure” for one of their two children, Shay, who was born in 1999 and is therefore 17 years of age.  There is no contradictor. 

2. Mr Boers, the solicitor for the applicants, appears on behalf of the applicants.  Because of the court’s usual practice, the application was brought on quickly and these reasons are being delivered ex tempore.

3. The application bears the title of an application for special medical procedure orders.  I consider that description wrong.  This case is about whether Shay has achieved a sufficient understanding and intelligence to enable her to understand what is proposed in relation to a medical process which, if implemented, would affect her sexuality.  Shay’s understanding and intelligence is described as “Gillick competence” level.  The focus should be on understanding and intelligence, rather than some tag. 

4. Before dealing with the substance, I observe that a number of orders were initially sought, including the following.  First, that leave be granted to have the proceedings heard in camera.  That was not pursued.  Mr Boers observed that some judges do it but rarely say why.   Section 97 might be the answer.  I consider it sensible here for that issue not to be pursued, as no evidence supported it.

5. The second order was that service on the “prescribed welfare authority” be dispensed with, although as it now turns out, the Department of Health and Human Services has been served. No one has appeared for the Department and understandably so, bearing in mind the application was only filed three days ago. In my view, it is unnecessary anyway, because a medical procedure application is defined in the Family Law Rules 2004 (“the Rules”) as:

   An application seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.

6. Because of what is ultimately sought by the parents, the application could not be described as a major medical procedure for Shay for the purposes of treating a bodily malfunction or disease. Thus, rule 4.10 of the Rules does not apply.

7. The third order sought was that Shay be declared “Gillick competent” to consent to oestrogen hormone treatment.  Mr Boers indicated that that order was not pressed. 

8. The fourth order was that in the alternative, the applicants be able to authorise the treatment known as stage 2 treatment for gender dysphoria.  That also was not pressed. 

9. The fifth order sought was that in the alternative again, Shay have parental responsibility for her own specific medical treatment.  Mr Boers was unable to indicate what power in the Family Law Act 1975 (Cth) (“the Act”) enabled the court to make such an order. I turn to the final order sought.

10. Having read the affidavit evidence of the applicants which is supported by a consultant child and family psychiatrist, Dr K and paediatrician Dr T, I am satisfied that Shay has been diagnosed as having gender dysphoria.  The treatment for that is also uncontroversial. 

11. Although the issue for the Court is no longer whether or not it is satisfied on the balance of probabilities that Shay has the requisite intelligence and understanding that I earlier described, because order 6 is no longer pressed, it may be observed that the two experts say she does have that capacity.  That becomes peripherally relevant because the parents are seeking, and indeed consenting to, a parenting order.  However, just because the parents seek and consent to a parenting order, does not mean that the Court should make it.  The Court still has the ultimate discretion in relation to whether or not the order should be made. 

12. The Court is empowered to make a parenting order if it is proper.  In contemplating that, there are some unusual features here.  First, Shay is just six months away from adulthood, where she can make her own decisions.  Secondly, the evidence relied upon by the applicants and in particular that of Dr T, was dated 29 December 2015.  There must be a question then, of what is the urgency in circumstances where Shay is about to turn 18 years of age.  Thirdly, the other expert evidence comes from the child psychiatrist.  That is dated September 2016.  Leaving aside the short few months delay there, I was told that the reason for the delay between December and September was that the psychiatrist had been on leave. 

13. It is not lost on me that the Court has been criticised in respect of these applications for the costs litigants have to bear, the delays in getting a hearing and the complications of its processes.  Apart from the personal view that, at least in Melbourne, those criticisms are without foundation, this is a case where the Court might justifiably question what the parties are doing if the whole basis of such an application is said to be about urgency of action. 

14. I turn, then, to the order relating to Shay’s decision-making competence because it is relevant to the parenting order and in particular whether the court should make the orders to which the parents consent. 

15. Obviously there are a number of aspects to this, most of which flow from the various authorities to which reference should be made.  It was in Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218, one about the sterilisation of a child, that the High Court of Australia considered and adopted the House of Lords decision in Gillick v West Norfolk AHA [1968] AC 112.  At [19], Mason CJ and Dawson, Toohey and Gaudron JJ described Gillick decision as “a persuasive authority”.  In the House of Lords, Lord Scarman said that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow and that this rate of development depended upon the individual child.  That statement has been adopted even though the Court went on to require court intervention in the special category of cases into which Marion fell. 

16. The Full Court of this Court in Re Jamie [2013] FamCAFC 110 focused on the competence of the child, specifically in relation to a gender dysphoria case. In this case, in my view, Re Jamie is not particularly relevant because of the nature of the orders that I am being asked to now make.  It is unnecessary for me also to deal with the question of the child’s competence per se as no declaration is sought.  In any event, all of the evidence points to Shay having that competence and capacity.

17. The relevance is really whether or not the proposed parenting order is proper.  The experts in this case say that Shay has gender dysphoria but also that she has the intelligence and understanding to understand what is proposed and, importantly, the consequences of any treatment.  The evidence of the two experts sets out the treatment detail and the various risks.  Dr T says that Shay has the intelligence and emotional maturity to consent to the procedure that Dr T recommends.  She also believes that Shay agrees to the procedure.  That particular statement is corroborated by the evidence of Shay’s parents. 

18. Shay has indicated to at least Dr T that she is able to understand what puberty blockers do and to comply with the necessary assessments which have led to the medical opinion that she was suitable for them and then in the future, to commence the treatment of oestrogen to feminise her body.  Dr T said that Shay had discussions with her about the use of the various treatments and, importantly, the complications that may occur.  All of those led to the decision by Dr T to say that Shay has the intelligence and understanding in relation to the medical process. 

19. Dr K is a child and adolescent psychiatrist at the X Hospital.  His evidence dated September 2016 was that the child appeared to understand the full extent of the treatment, particularly those as I have described in the evidence of Dr T, including the negative effects and the possibility of future changes of mind.  In his view, Shay knows exactly what she is doing and has the sufficient understanding and maturity to make the decision. 

20. In those circumstances, I find that Shay has the requisite intelligence and understanding to make those decisions.  The final question is what orders should be made. 

21. Mr Boers suggested that s 67ZC was the power often used in these sorts of cases. Section 67ZC - or the welfare jurisdiction - is problematic because it can be used where Part VII provisions of the Act otherwise do not apply. As the High Court said in Re Marion (supra), that provision can be used for that narrow category of cases where the court authorisation is required. 

22. The Court has power under Part VII of the Act to make parenting orders which can include orders in respect of any aspect of the care, welfare or development of a child and any other aspect of parental responsibility for a child – (ss 65D, 64B(1) and (2)).

23. Section 64B permits the Court to allocate parental responsibility and not just to those who have formally applied. If the parents can make the decision because it falls within their parental responsibility, but they are prepared to devolve that responsibility on their own child, particularly a child who is about to turn 18, that process is consistent with what the House of Lords said in Gillick and which was endorsed by the High Court in Re Marion (supra). 

24. In the House of Lords, as Lord Scarman said: 

    Parental rights … do not wholly disappear until the age of majority … But the common law has never treated such rights as sovereign or beyond review and control.  Nor has our own law ever treated the child as other than a person with capacities and rights recognised by law.  The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. 

25. Section 64B of the Act provides the power to make the orders sought. The rights of Shay and the recognition of her capacity by the court on the basis of the view of the experts means the request of the parents to formally devolve that responsibility is not only proper but in her best interests.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 November 2016.

Associate: 

Date:  24 November 2016