Re: Tara

[2016] FamCA 406

FAMILY COURT OF AUSTRALIA

RE: TARA [2016] FamCA 406

FAMILY LAW – MEDICAL PROCEDURES – Childhood gender dysphoria – Where the Court declares that the child is competent to consent to the administration of Stage 2 treatment.

Family Law Act 1975 (Cth) s 67ZC

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie (2013) FLC 93-547

APPLICANT:	The Mother
RESPONDENT:	The Father

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 26 May 2016

JUDGMENT OF: Rees J

HEARING DATE: In Chambers

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

IT IS DECLARED

1. That Tara who was born on … 1999 is competent to consent to the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

IT IS ORDERED

1. That the full name of Tara, her family members, her hospital, the Independent Children’s Lawyer, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Tara’s parents’ lawyers, and any other fact or matter that may identify Tara shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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 number and lawyers’ names.

2. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother

Applicant

And

The Father

Respondent

REASONS FOR JUDGMENT

1. The Mother has applied for a declaration that the child, known as Tara, who was born in 1999 is competent to consent the administration of Stage 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

2. In the alternate, the mother seeks an order that she be authorised to consent to the proposed treatment.

3. Tara’s father has filed an affidavit in which he deposed that he supports the application.

4. The treatment which is proposed for Tara is hormone therapy for transition from male to female. No surgical intervention is proposed at this time.

5. An Independent Children’s Lawyer (“ICL”) has been appointed for Tara. The ICL appeared at the hearing and made submissions in support of the orders sought by the mother.

6. Although the relevant Child Welfare Authority is not a named respondent to the application, the application and supporting affidavits were served upon the Secretary of the Authority (“the Secretary”) who appeared by counsel. Counsel for the Secretary advised the Court that the Secretary had made all necessary enquiries and did not wish to participate further in the proceedings. With the consent of the applicants and the ICL, the Secretary was given leave to withdraw.

THE LAW

1. The issue of the role of the Family Court of Australia in cases involving childhood gender identity disorders was definitively explored in the decision of Re: Jamie (2013) FLC 93-547 (“Re: Jamie”) by the Chief Justice and Finn and Strickland JJ. In separate judgments their Honours each determined that in cases where the proposed treatment is irreversible without surgical intervention the issue for the Court is to determine whether the child is competent within the meaning of the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick competent”). Their Honours held unanimously that in the event that the Court finds that the child is Gillick competent then the authority of the Court is not required to authorise the treatment.

2. At paragraph 140 of her Honour’s judgment, the Chief Justice said:

   I summarise the decision that I have reached in relation to these matters:

   a)Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

   b)If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

   c)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.

   d)If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

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

   f)If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

3. Finn J said at paragraph 188:

   If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.

4. Strickland J said at paragraphs 195–196:

   In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation.  This would not be the case though where the child is able to give consent to the proposed treatment.

   Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

5. The issue therefore in relation to Tara is whether or not she is Gillick competent to consent to hormone therapy.

6. The ability of a child to make his or her own decision in respect of medical treatment depends upon that child’s having sufficient understanding and intelligence to make the decision. It is a question of fact in each individual case and falls to be determined on the evidence of the individual capacity of the particular child. 

THE EVIDENCE

1. Tara’s mother swore an affidavit on 22 February 2016. She deposed that Tara is an average student at her school. The mother deposed that Tara is generally a quiet and sensitive girl who prefers to listen rather than to talk. However, the mother deposed that Tara can be passionate and persuasive with her opinions when she wants to be.

2. The mother deposed that Tara finds out information for herself before coming to a decision and is then likely to discuss the information she has gleaned before making her own decision. The mother believes that Tara understands that the side effects of the treatment which is proposed include the reduction of sterility and increased risk of other conditions, such as heart disease and cancer but that Tara is “impatiently excited” to start the next phase of her transition. Tara does not plan to have any surgery until she is at least 18 years of age.

3. Tara’s father deposed:

   In so far as her life experience allows, I feel confident that [Tara] has analysed as many issues as we could think of posing to her for analysis. [Tara] has done this (sic) the presence of counsellors, doctors, psychologists, and psychiatrists. I am of the opinion that [Tara’s] position on her gender identity comes from her true feelings of disconnect between his male anatomy and female gender identity.

4. Dr W, Clinical Associate Professor of Endocrinology, provided a report to the Court dated 16 November 2015. Associate Professor W reported:

   [Tara] has seen a number of treating medical professionals as previously indicated all of whom support the diagnosis. Through a series of visits with each of the treating medical professionals, [Tara] has developed trust and confidence in the doctor-patient relationship. In particular in my consultations with [Tara] she has felt more freely able to express her preferences with respect to treatment as she was fairly cautious and reserved at her first visit, probably not fully understanding the goals of therapy at her fist (sic) visit. She now more freely expresses her desire to be female and is understanding of the two-step process.

   In my discussions with [Tara], it is quite clear that [Tara] has a very clear understanding of the proposed treatment and the two stages, firstly using puberty blocking treatment which [Tara] has already commenced and secondly the commencement of oestrogen therapy to achieve more female phenotypical features.

5. Associate Professor W reported:

   [Tara] has a full understanding of what the treatment involves and believes is (sic) completely consistent with her maturational stage and education currently in year 10 at school. [Tara] has had no emotional disturbance with commencing puberty blockers and I think in fact will have a significant improvement in mood with commencement of oestrogen therapy and she has managed the hormone deficient stage extremely well without any adverse effects on mood and that is probably where most mood disturbance occurs. [Tara] is also aware that phase 2 treatment with oestrogen therapy may have consequences that cannot be entirely foreseen at the time of the decision. It appears that [Tara] is, to the greatest extent possible, free from temporary factors such as pressure or pain that could impair her judgement in providing her consent to the procedure.

6. Dr K, a consultant child, adolescent and adult psychiatrist, provided a report in relation to Tara dated 10 November 2015. The report was based on assessment interviews conducted by Dr K with Tara on 8 May, 15 May, 28 August 2015 and a further assessment on 4 November 2015.

7. In the report Dr K noted:

   [Tara] demonstrated a capacity to comprehend and retain both existing and new information regarding the proposed treatment. She was able to integrate knowledge about the treatment, modified her existing knowledge when new information was presented for consideration, and incorporated both existing and new information in a rational discussion concerning the proposed treatment.

   [Tara] was able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of Phase 2 treatment. [Tara] understood that she would be taking oral medication in the form of female sex hormones (primarily or exclusively oestrogen) for many years and possibly for the rest of her life. She learned and accepted that she will also be taking an anti-androgen agent while her body retains the capacity to produce its own testosterone in physiologically significant amounts. She understood that this treatment needs to be accompanied by regular medical monitoring and supervision, including occasional blood tests to check the hormone level. She understood that the changes will be gradual and accumulative over months to years.

   [Tara] demonstrated that she was able to describe the advantages for her of Phase 2 treatment. She told me that the oestrogen will cause body fat redistribution to promote development of a female body shape, an unpredictable amount of breast development and a change in skin texture. [Tara] recounted the advantages of anti-androgen treatment as being the minimisation of facial and body hair growth and an inhibition of further muscle development. [Tara] saw the major advantage of the above physical changes as enabling a greater degree of subjective psychological comfort as her body comes into line with her strong sense of being female in gender, leading to a reduction in gender dysphoria. [Tara] anticipates that this will enhance her personal happiness, enable a greater enjoyment of life and an increased ease in social relationships.

   [Tara] was able to describe the disadvantages of Phase 2 treatment including the inconvenience of taking medication on a daily basis (which she perceived as very minor), the possibility of being more prone to depression and anxiety, reduced energy, weight gain and an increased likelihood of blood clots. [Tara] told me that she has given full consideration to sperm storage, accepted that this is best done prior to commencement of Phase 2 treatment but has ultimately decided against it due to the strong dislike of sexually utilising her male genitalia.

   [Tara] was able to weight the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with Phase 2 treatment. She expressed a clear and informed decision to commence this treatment as soon as possible.

   [Tara] acknowledged and understood that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that she had before the commencement of treatment, and that further support in these regards may be of benefit.

   [Tara] was fully alert and in a clear state of consciousness when assessed. She is not suffering from any other mental health problem or general medical condition at a clinically significant level. She denied being under the influence of pressure of any other person or institution. It is therefore my opinion that [Tara] is free to the greatest extent possible from temporary factors that could impair her judgement in providing consent to the procedure.

8. I am satisfied on all of the evidence that Tara, aged 17 years, has sufficient intelligence and understanding to make the decision to commence therapy, and as requested by her mother, a declaration will be made accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 May 2016.

Associate: 

Date:  26 May 2016