FAMILY COURT OF AUSTRALIA RE: KELVIN [2017] FamCAFC 258

[2017] FamCAFC 258 Coversheet and Orders Page 1

FAMILY COURT OF AUSTRALIA

RE: KELVIN

[2017] FamCAFC 258

CASE STATED – CHILDREN – Gender Dysphoria – Where s 67ZC(1) and s 69ZH

of the Family Law Act 1975 (Cth) confer power on the Family Court of Australia to

determine applications concerning the administration of stage 2 medical treatment for

Gender Dysphoria for children – Where s 49 of the Minors (Property and Contracts)

Act 1970 (NSW) and s 174 and s 175 of the Children and Young Persons (Care and

Protection) Act 1998 (NSW) do not affect these proceedings – Whether the Court

confirms its decision in Re: Jamie (2013) FLC 93-547 (“Re Jamie”) to the effect that

stage 2 treatment of a child for the condition of Gender Dysphoria in adolescents and

adults in the DSM-V requires the court’s authorisation pursuant to s 67ZC of the

Family Law Act 1975 (Cth), unless the child is Gillick competent to give informed

consent (Question 1) – Where this question can and should be answered by

considering whether it is appropriate to now depart from Re Jamie in order that the

law is able to effectively reflect the current state of medical knowledge – Where it is

unnecessary and inappropriate for the Court to find that Re Jamie is “plainly wrong”

in order to answer the question posed – Where there are legally relevant factual

differences between the two cases, namely advances in medical science regarding the

purpose for which the treatment is provided, the nature of the treatment, and the risks

involved in undergoing, withholding, or delaying treatment – Where the treatment

can no longer be considered a medical procedure for which consent lies outside the

bounds of parental authority and requires the imprimatur of the court – Where the

answer to question 1 is “no” – Whether it is mandatory to apply to the Family Court

of Australia for a determination whether the child is Gillick competent where stage 2

treatment is proposed, the child consents to the treatment and the parents and the

medical practitioners are in agreement (Question 2) – Where the nature of the

treatment no longer justifies court authorisation and the concerns identified in

Re Jamie do not apply – Where the answer to question 2 is “no” – Where it is

unnecessary to answer questions 3 to 6 of the stated case

Australian Constitution s 51(xxxvii)

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 174, 175

Commonwealth Powers (Family Law – Children) Act 1986 (NSW)

Family Law Act 1975 (Cth) ss 64B(2)(i), 65D(1), 67ZC, 69H, 69ZE, 69ZH,

91(1)(b)(ii), 94A

Minors (Property and Contracts) Act 1970 (NSW) s 49

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

Conway v The Queen (2002) 209 CLR 203

De Simone v Bevnol Constructions & Developments Pty Ltd (No 2) (2010) 30 VR 211

Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566

E. (Mrs) v Eve [1986] 2 S.C.R. 388

F Firm & Ruane and Ors (2014) FLC 93-611

Fowles v The Eastern and Australian Steamship Co Ltd (1913) 17 CLR 149

[2017] FamCAFC 258 Coversheet and Orders Page 2

Gett v Tabet (2009) 254 ALR 504

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219

CLR 365

Nguyen v Nguyen (1990) 169 CLR 245

P v P (1994) 181 CLR 583

PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service

(1995) 184 CLR 301

Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175

Re GWW and CMW (1997) FLC 92-748

Re Inaya (Special Medical Procedure) (2007) 38 Fam LR 546

Re: Jamie (2013) FLC 93-547

Re: Jaden [2017] FamCA 269

Re Lucy (Gender Dysphoria) (2013) 49 Fam LR 540

Re Sam and Terry (Gender Dysphoria) (2013) 49 Fam LR 417

Re: Sarah [2014] FamCA 208

Re Sean and Russell (Special Medical Procedures) (2010) 44 Fam LR 210

Secretary, Department of Health and Community Services v JWB and SMB (1992)

175 CLR 218

R v Ross-Jones; Ex Parte Beaumont (1979) 141 CLR 504

State of Queensland v B [2008] 2 Qd R 562

Telstra Corporation Ltd v Treloar (2000) 102 FCR 595

Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth)

Felicity Bell, “Children with Gender Dysphoria and the Jurisdiction of the Family

Court” (2015) 38(2) University of New South Wales Law Journal 426

J D Heydon, “How Far Can Trial Courts and Intermediate Appellate Courts Develop

the Law?” (2009) 9 Oxford University Commonwealth Law Journal 1

APPLICANT:

The Father

FIRST INTERVENOR:

A Gender Agenda Inc.

SECOND INTERVENOR:

Australian Human Rights

Commission

THIRD INTERVENOR:

Secretary for the

Department of Family and

Community Services

FOURTH INTERVENOR:

Attorney-General of the

Commonwealth

FIFTH INTERVENOR:

The Royal Children’s

[2017] FamCAFC 258 Coversheet and Orders Page 3

Hospital

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

456

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

30 November 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Strickland,

Ainslie-Wallace, Ryan &

Murphy JJ

HEARING DATE:

21 September 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 February 2017 (case

stated amended on

25 August 2017)

LOWER COURT MNC:

[2017] FamCA 78

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Painter SC with

Ms Palaniappan

SOLICITOR FOR THE APPLICANT:

Inner City Legal Centre

COUNSEL FOR THE FIRST

INTERVENOR:

Ms Walker QC with

Ms Bennett

SOLICITOR FOR THE FIRST

INTERVENOR:

Human Rights Law Centre

COUNSEL FOR THE SECOND

INTERVENOR:

Ms Younan

[2017] FamCAFC 258 Coversheet and Orders Page 4

SOLICITOR FOR THE SECOND

INTERVENOR:

Australian Human Rights

Commission

COUNSEL FOR THE THIRD

INTERVENOR:

Mr Anderson with

Mr Hume

SOLICITOR FOR THE THIRD

INTERVENOR:

Crown Solicitor’s Office

COUNSEL FOR THE FOURTH

INTERVENOR:

Ms Richardson SC with

Mr Herzfeld

SOLICITOR FOR THE FOURTH

INTERVENOR:

Australian Government

Solicitor

COUNSEL FOR THE FIFTH

INTERVENOR:

Mr Glass

SOLICITOR FOR THE FIFTH

INTERVENOR:

The Royal Children’s

Hospital Medico-Legal

Office

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

ORDERS

(1) The questions stated for the opinion of the Full Court be answered as follows:

Question 1: Does the Full Court confirm its decision in Re Jamie (2013) FLC

93-547 to the effect that Stage 2 treatment of a child for the

condition of Gender Dysphoria in Adolescents and Adults in the

Diagnostic and Statistical Manual of Mental Disorders (Fifth

Edition) DSM-5 (the treatment), requires the court’s authorisation

pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”),

unless the child was Gillick competent to give informed consent?

[2017] FamCAFC 258 Coversheet and Orders Page 5

Answer: No

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 (Bryant CJ at [136-137,

140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

Answer: No

Question 3: If the answer to question 2 is yes, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, should any

application for a declaration that the child is Gillick competent, be

dismissed?

Answer: Unnecessary to answer

Question 4: In the alternative, if the answer to question 2 is yes, if a finding is

made that the child was Gillick competent to give informed

consent, should any application for an order authorising the

administration of the treatment, be dismissed?

Answer: Unnecessary to answer

Question 5: If the answer to question 3 is no, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, is the jurisdiction and

power of the court enlivened, pursuant to s 67ZC of the Act, to

make a declaration that the child was Gillick competent to give

informed consent to the treatment?

Answer: Unnecessary to answer

Question 6: If the answer to question 4 is no, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, is the jurisdiction and

[2017] FamCAFC 258 Coversheet and Orders Page 6

power of the court enlivened, pursuant to s 67ZC of the Act, to

make an order authorising the administration of the treatment?

Answer: Unnecessary to answer

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: Kelvin 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).

[2017] FamCAFC 258 Reasons Page 1

Appeal Number: EA 30 of 2017

File Number: SYC 456 of 2017

The Father

Applicant

And

A Gender Agenda Inc.

First Intervenor

And

Australian Human Rights Commission

Second Intervenor

And

Secretary for the Department of Family and Community Services

Third Intervenor

And

Attorney-General of the Commonwealth

Fourth Intervenor

And

The Royal Children’s Hospital

Fifth Intervenor

And

Independent Children’s Lawyer

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

[2017] FamCAFC 258 Reasons Page 2

REASONS FOR JUDGMENT

THACKRAY, STRICKLAND & MURPHY JJ

INTRODUCTION

1. This matter comes before the Court by way of an amended case stated by Watts

J on 25 August 2017, pursuant to s 94A(1) of the Family Law Act 1975 (Cth)

(“the Act”).

2. The case stated arises from an application by the applicant father concerning

the administration of stage 2 medical treatment for Gender Dysphoria for his

then 16 year old child, “Kelvin”.

3. In essence, the questions stated for the opinion of this Court concern the effect

of the Full Court’s decision in Re: Jamie (2013) FLC 93-547 (“Re Jamie”) and

the role of the Family Court more generally in relation to stage 2 medical

treatment for Gender Dysphoria and the determination of Gillick competence

(Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; see

Re Jamie at [115] and Secretary, Department of Health and Community

Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) per Mason

CJ, Dawson, Toohey and Gaudron JJ at pages 237 – 238).

4. A Gender Agenda Inc., the Australian Human Rights Commission, the

Secretary for the Department of Family and Community Services, and the

Royal Children’s Hospital were granted leave to intervene. The

Attorney-General of the Commonwealth intervened as of right pursuant to

s 91(1)(b)(ii) of the Act.

THE FACTS AS SET OUT IN THE CASE STATED

5. We set out in full below the facts set out in the case stated (as amended in

circumstances described later in these reasons).

Gender Dysphoria

6. Gender Dysphoria is a term that describes the distress experienced by a person

due to incongruence between their gender identity and their sex assigned at

birth.

7. The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition

(DSM-5) (302.85 (F64.1) ICD-10-CM F64.1) defines Gender Dysphoria as

“the distress that may accompany the incongruence between one’s experienced

or expressed gender and one’s assigned gender. Although not all individuals

will experience distress as a result of such incongruence, many are distressed if

the desired physical intervention by means of hormones and/or surgery are not

available”. A diagnosis of Gender Dysphoria can be made when specific

criteria are met, the distress has been present for at least six months’ duration,

[2017] FamCAFC 258 Reasons Page 3

and when the condition is associated with clinically significant distress or

impairment in social, occupational, or other important areas of functioning.

Treatments

8. Treatment guidelines for the care of trans and gender diverse children and

adolescents are in place, with the World Professional Association for

Transgender Health Standards of Care version 7 (2011) and the Endocrine

Society Treatment Guidelines (2009) being the basis of treatment protocols

internationally, including throughout Australia.

9. Australia’s specific guidelines for the standards of care and treatment for

transgender and gender diverse children and adolescents are expected to be

available in September 2017 (in the form annexed to the affidavit of Associate

Professor Telfer sworn 7 August 2017).

10. Best practice medical treatment for Gender Dysphoria is offered following a

comprehensive multidisciplinary assessment. The multidisciplinary treating

team may include clinicians with experience in the disciplines of child and

adolescent psychiatry, paediatrics, adolescent medicine, paediatric

endocrinology, clinical psychology, gynaecology, andrology, fertility

counselling and services, speech therapy, general practice and nursing. These

treating professionals need to agree on the proposed treatment plan before it

can be implemented. Medical treatment is only commenced after physical

examination and blood tests confirm that the adolescent has entered into

puberty. Best medical practice is that the adolescent and their parents/guardians

must provide informed consent.

11. The existing medico-legal structure for stage 1, stage 2 and stage 3 treatment in

Australia requires at least one psychiatrist or clinical psychologist to confirm a

diagnosis of Gender Dysphoria in Adolescents prior to medical intervention.

12. Stage 1 treatment is “puberty blocking treatment” and the effects of this

treatment are reversible when used for a limited time for approximately three to

four years. Gonadotrophin releasing hormone analogue (GnRHa) are used for

stage 1 treatment and are administered via injection with the aim of reducing

the psychological distress associated with development and progression of the

unwanted, irreversible changes of the adolescent’s endogenous (biological)

puberty. It also allows the adolescent time to mature emotionally and

cognitively such that they can achieve maturity sufficient to provide informed

consent for stage 2 treatment. Stage 1 treatment is ideally commenced in the

early stages of puberty (known as Tanner Stage 2) which can occur from the

age of approximately nine to 12 years of age.

13. Stage 2 Treatment or “gender affirming hormone treatment” involves the use of

either oestrogen to feminise the body in those who have a female gender

identity or use of testosterone to masculinise the body in those who have a male

[2017] FamCAFC 258 Reasons Page 4

gender identity. This treatment is ideally commenced at an age where the

adolescent is sufficiently mature to be able to provide informed consent given

the irreversible nature of some of the effects of oestrogen and testosterone.

14. The irreversible physiological effects of oestrogen are breast growth and

decreased sperm production and partially irreversible effects are decreased

testicular volume and decreased terminal hair growth. The irreversible

physiological effects of testosterone are facial and body hair growth, scalp hair

loss, clitoral enlargement, vaginal atrophy and deepening of voice.

15. Stage 2 treatment for Gender Dysphoria may, but does not necessarily, cause

long term infertility. For individuals who were assigned male at birth,

oestrogen treatment may render the adolescent infertile over time. However,

options are explored with the adolescent regarding their future ability to have

biological children prior to the commencement of oestrogen use including

preserving their fertility using sperm preservation procedures prior to the

commencement of oestrogen use.

16. So that it is clear, stage 2 treatment does not include stage 3 treatment which

treatment involves surgical interventions. Those interventions include:

a) Chest reconstructive surgery (also known as top surgery) (Re: Quinn

[2016] FamCA 617; Re: Tony [2016] FamCA 936; Re: Leo [2015]

FamCA 50; Re Lincoln (No. 2) [2016] FamCA 1071)

b) Phalloplasty

c) Hysterectomy

d) Bilateral salpingectomy

e) Creation of the neovagina

f) Vaginoplasty

Risks of not Providing Treatment

17. Failure to provide gender affirming hormones results in the development of

irreversible physical changes of one’s biological sex during puberty or the

development of changes that lead to the need for otherwise avoidable surgical

intervention such as chest reconstruction in transgender males or facial

feminisation surgery in transgender females.

18. The prolonged use of puberty blockers (stage 1 treatment) has long term

complications for bone density (osteopenia) namely osteoporosis and bone

fractures in adulthood. Best practice is to limit the time an adolescent is on

puberty blockers and then commence oestrogen or testosterone. Delaying stage

2 treatment for those on puberty blockers also results in psychological and

social complications of going through secondary school in a pre-pubertal state

which is inconsistent with the child’s peers.

[2017] FamCAFC 258 Reasons Page 5

19. The distress caused by Gender Dysphoria can lead to anxiety, depression, self-

harm and attempted suicide.

20. Individuals with Gender Dysphoria who commence cross sex hormone therapy

generally report improvements in psychological wellbeing. An affirmation of

their gender identity coupled with improvements in mood and anxiety levels

typically results in improved social outcomes in both personal and work lives.

21. For a transgender male, manifestations of increased body hair and deepening of

the voice are generally considered by them as positive.

22. For transgender females if stage 2 treatment is not administered another risk is

linear growth beyond their expected final height.

23. Some patients receiving treatment for Gender Dysphoria have reported

purchasing hormones over the internet or illegally obtaining hormones through

prescriptions written for other people. They have also reported that oestrogen

and testosterone are cheap and freely available over the internet or through

friends or acquaintances. Accessing hormones in this way is dangerous for

several reasons including the risks of complications from blood borne viruses

such as Hepatitis B, Hepatitis C and HIV contractible with shared use of

needles and syringes and the taking of inappropriate dosages of hormones

which can be life threatening.

Kelvin

24. Kelvin was assigned female at birth in 2000.

25. Kelvin’s parents were never married.

26. Kelvin’s parents separated in 2003.

27. In April 2014, when he was in year 8, Kelvin transitioned socially as a

transgender person.

28. Throughout 2015 Kelvin attended upon doctors for referrals for his general

health and wellbeing.

29. In April 2015 Kelvin commenced being known by his preferred name at

school.

30. In April 2015 Kelvin attended upon a psychologist and continued to do so for

10 sessions.

31. In June 2015 Kelvin attended upon an endocrinologist. He attended a further

appointment with this doctor in August 2016.

32. In October 2015 Kelvin commenced attending upon an accredited counsellor

and mental health social worker.

33. In July 2016 Kelvin attended upon a psychiatrist.

34. In July and August 2016 Kelvin attended upon a psychologist.

[2017] FamCAFC 258 Reasons Page 6

35. Kelvin has experienced all aspects of the DSM-5 diagnostic criteria for Gender

Dysphoria since he was nine years of age.

36. Kelvin has been diagnosed as having Gender Dysphoria as defined in the

Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

37. Kelvin’s history of Gender Dysphoria has resulted in significant problems with

anxiety and depression including self-harming for which he has been

prescribed medication. Kelvin’s mental health has improved since taking steps

towards a medical transition.

38. Kelvin has not undergone stage 1 treatment and as a consequence has

experienced female puberty which has caused him significant distress.

39. Stage 2 treatment is necessary for Kelvin’s ongoing psychological health and

overall wellbeing.

40. Kelvin’s parents both support Kelvin commencing stage 2 treatment for Gender

Dysphoria.

41. Kelvin is now 17 years old. He wishes to commence stage 2 treatment for

Gender Dysphoria.

42. Kelvin’s father, by way of Initiating Application filed 25 January 2017, sought

the following declaration and, in the alternative, the following order:

That the Court declares the child [Kelvin] born ...00 is competent to

consent to the administration of Stage 2 treatment for the condition of

Gender Dysphoria in Adolescents and Adults in the Diagnostic and

Statistical Manual of Mental Disorders (2013) DSM-5.

In the alternative:

That the court authorise the administration of Stage 2 treatment for the

condition of childhood Gender Dysphoria in Adolescents and Adults in the

Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5

under s 67ZC of the Family Law Act on and from a date to be determined

by the treating medical team of [Kelvin’s] on the basis that it is in the best

interests of [Kelvin].

43. In support of the father’s application, he filed expert reports of Dr R, a

psychologist, Dr S, a psychiatrist and Dr H an endocrinologist.

44. Kelvin has been found to be Gillick competent, to consent to stage 2 treatment

for Gender Dysphoria, but no declaration or order to that effect has yet been

made by the court.

45. Stage 2 treatment for Kelvin’s Gender Dysphoria involves the administration of

testosterone to initiate the secondary sexual characteristics and appearance of

the male sex. These include facial hair, deepened voice, increased

muscle/strength, body fat redistribution, cessation of menses, clitoral

[2017] FamCAFC 258 Reasons Page 7

enlargement and vaginal atrophy as well as skin oiliness/acne and scalp hair

loss. Kelvin’s physical changes will be those of masculinisation. On the

positive side testosterone therapy typically results in increase muscle strength,

stamina and energy levels. On the negative side there can be problems with

acne and male pattern balding.

46. Adverse medical outcomes such as liver dysfunction, hypertension and

polycythaemia are uncommon, particularly in Kelvin’s age group.

47. Psychologically, the treatment will allow Kelvin to continue to develop his self-

esteem, the confidence in his body and appearance and to consequently develop

the congruence necessary for a healthy future outlook. The purpose of Kelvin

undergoing stage 2 treatment is to further align Kelvin’s physical gender

characteristics with his inner gender identity. That treatment is necessary to

promote Kelvin’s wellbeing and to relieve his suffering. If the treatment were

carried out, the short and long-term effects would likely include the further

promotion of a healthy and integrated identity, positive self-concept and

capacity to form relationships and evolve into a healthy and well-adjusted

adult. Relief from ongoing gender identity-related cognitions of guilt and

worthlessness, low mood and sadness would take place.

48. For Kelvin if stage 2 treatment was not carried out his overall health and

wellbeing is almost certain to deteriorate especially as his mental and physical

health is heavily dependent on the perception of himself as male.

49. If stage 2 treatment is not carried out Kelvin will experience ongoing intense

frustration and feelings of isolation, disgust with his physical body (which

Kelvin continues to actively experience with respect to his female genitalia)

and consequent difficulty forming relationships. These factors are recognised

as triggers for suicide attempts.

50. If the testosterone treatment is not carried out, there is a potential Kelvin may

obtain illicit drugs which are common place in gymnasiums. These

preparations are unregulated with no guarantee regarding their efficacy or

safety. Kelvin using drugs in this way would not afford him the benefit of

regular blood tests and periodic review. Medically supervised hormone

treatment is an exercise in harm minimisation.

Court Outcomes, Delay and Costs

51. Between 31 July 2013 and 16 August 2017 the Family Court has dealt with

63 cases involving applications for either stage 2 or stage 3 treatment for

Gender Dysphoria. In 62 of those cases the outcome has allowed treatment.

The most common outcomes were:

a) Declaring a child Gillick competent to consent (26)

b) Finding the child is Gillick competent to consent (22)

[2017] FamCAFC 258 Reasons Page 8

c) Finding Gillick competence and making a declaration (7)

52. In the one case where an application was dismissed the child was 17 years and

11 months at the time of the hearing and the application was not supported by

evidence that would allow the court to make a positive finding that the child

was Gillick competent.

53. In 39 of the 63 cases the date of the filing of the Initiating Application is

recorded in the judgment. The average time between filing and the making of a

finding or orders was 26 days (23 days if two cases are removed from that

sample where the trial judge gave reasons as to why those cases took 49 and

39 days respectively, which reasons were not related to the court delaying

dealing with the matter).

54. In a qualitative study of 12 families undertaken by Fiona Kelly in 2016.

Ms Kelly found that the average delay experienced by those families was eight

months from the time that the process was initiated until the adolescent

commenced treatment (that is a different period from the filing of an

application to the provision of an outcome by the court). Fiona Kelly’s 2016

study found the financial costs of the court proceedings varied between those

12 families between $8,000 and $30,000.

55. The fifth intervenor, the Royal Children’s Hospital Gender Service in Victoria

is a specialist unit comprising of a team from multiple disciplines including

Paediatrics, Psychiatry, Psychology, Endocrinology, Gynaecology, Nursing and

Speech Pathology. Since its commencement in 2003, the Gender Service has

received 710 patient referrals including 126 between 1 January 2017 and

7 August 2017.

56. 96 per cent of all patients who were assessed and received a diagnosis of

Gender Dysphoria by the 5th intervenor from 2003 to 2017 continued to

identify as transgender or gender diverse into late adolescence. No patient who

had commenced stage 2 treatment had sought to transition back to their birth

assigned sex. No longitudinal study is yet available.

Other Inferences

57. Pursuant to s 94A(2) of the Act any other inference, whether of fact or law,

which the Full Court might draw from the following documents which for the

purposes of the case stated were before the judge:

a) Reasons for Judgment in Re Kelvin [2017] FamCA 78

b) Diagnostic and Statistical Manual of Mental Disorders Fifth Edition

(DSM-V) (pages 451 – 459)

c) Gender Dysphoria Decisions and Results since Re Jamie

[2017] FamCAFC 258 Reasons Page 9

d) World Professional Association for Transgender Health, Standards of

Care for the Health of Transexuals, Transgender and Gender

Nonconforming People (7

edition) 2011

e) The affidavit of Associate Professor Michelle Marian Telfer

(unredacted) filed 8 August 2017

f) Hembree, W; Cohen-Kettenis, P; Delemarre-van de Waal, H; Gooran,

LJ; Meyer III, WJ; Spack, NP; Tangpricha, V; and Montori, VM –

‘Endocrine Treatment of Transexual Persons: An Endocrine Society

Clinical Practice Guideline’ (2009) 94(9) Journal of Clinical

Endocrinology & Metabolism, 3132

g) Giordana, S – Children with Gender Identity Disorder: A Clinical,

Ethical and Legal Analysis, Routledge, 2012

h) De Vries, A; McGuire, J; Steensma, T; Wagenaar, EC; Doreleijers, TA;

and Cohen-Kettenis, PT – ‘Young adult psychological outcome after

puberty suppression and gender reassignment’ Pediatrics 2014; 134:

696-704

i) Whithall, J – ‘Childhood Gender Dysphoria and the Responsibility of

the Courts’ Quadrant, May 2017, pp 18-25

j) Steensma, TD; McGuire, JK; Kreukels, BPC; Beekman, AJ; and Cohen-

Kettenis, PT – ‘Factors associated with desistence and persistence of

childhood gender dysphoria: A quantitative follow-up study’ Journal of

the American Academy of Child & Adolescent Psychiatry Volume 52(6)

582-590, June 2013

k) Vander Laan, DP; Postema, L; Wood, H; Dingh, D; Fantus, S; Hyuan, J;

Leef, J; Bradley, SJ; and Zucker, KJ – ‘Do Children With Gender

Dysphoria Have Intense/Obsessional Interests?’ Journal of Sex

Research, 52(2) 213-219, 2015

l) Costa, R and Colizzi, M – ‘The effect of cross-sex hormonal treatment

on gender dysphoria individuals’ mental health: a systemic review’

Neuropsychiatric Disease and Treatment, 2016: 12 1953-1966

THE QUESTIONS OF LAW

58. The following are the questions stated for the opinion of the Full Court in the

case stated:

1. Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-

547 to the effect that Stage 2 treatment of a child for the condition of

Gender Dysphoria in Adolescents and Adults in the Diagnostic and

Statistical Manual of Mental Disorders (Fifth Edition) DSM-5 (the

treatment), requires the court’s authorisation pursuant to s 67ZC of

[2017] FamCAFC 258 Reasons Page 10

the Family Law Act 1975 (Cth) (“the Act”), unless the child was

Gillick competent to give informed consent?

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 (Bryant CJ at [136-137,

140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

3. If the answer to question 2 is yes, given statements made by the Full

Court in Re Jamie, if a finding is made that the child was Gillick

competent to give informed consent, should any application for a

declaration that the child is Gillick competent, be dismissed?

4. In the alternative, if the answer to question 2 is yes, if a finding is

made that the child was Gillick competent to give informed consent,

should any application for an order authorising the administration of

the treatment, be dismissed?

5. If the answer to question 3 is no, given statements made by the Full

Court in Re Jamie, if a finding is made that the child was Gillick

competent to give informed consent, is the jurisdiction and power of

the court enlivened, pursuant to s 67ZC of the Act, to make a

declaration that the child was Gillick competent to give informed

consent to the treatment?

6. If the answer to question 4 is no, given statements made by the Full

Court in Re Jamie, if a finding is made that the child was Gillick

competent to give informed consent, is the jurisdiction and power of

the court enlivened, pursuant to s 67ZC of the Act, to make an order

authorising the administration of the treatment?

PRELIMINARY ISSUES

59. There are three preliminary issues which need to be resolved before we can

embark upon addressing the questions of law posed in the case stated.

The Court’s Jurisdiction

60. Does the Family Court have jurisdiction to determine the father’s application?

If not, it would be unnecessary to answer the questions stated.

[2017] FamCAFC 258 Reasons Page 11

61. This question was addressed in extenso by the Attorney-General, who

submitted that the Court does have jurisdiction. Neither the applicant father,

nor ultimately any of the intervenors submitted otherwise, save and except it

seems the Royal Children’s Hospital. Only the Secretary for the Department of

Family and Community Services submitted that the Court did not have

jurisdiction to make the declaration of Gillick competence the father sought.

We agree that the Court has jurisdiction for the following reasons, adopting

much of what was said by the Attorney-General.

62. There are two issues, namely the extent to which s 67ZC(1) of the Act confers

power to authorise treatment and make a declaration of Gillick competence,

and the extent to which s 69H(1) of the Act confers jurisdiction upon the Court

to do so.

63. The relevant provisions of the Act are as follows:

a) Section 69H(1), which is within div 12 of pt VII, provides:

Jurisdiction of Family Court, State Family Courts, Northern

Territory Supreme Court and Federal Circuit Court

(1) Jurisdiction is conferred on the Family Court in relation to

matters arising under this Part.

b) For present purposes, s 69ZE provides:

Extension of Part to the States

(1) Subject to this section and section 69ZF, this Part extends to

New South Wales, Victoria, Queensland, South Australia

and Tasmania.

(2) Subject to this section and section 69ZF, this Part extends to

Western Australia if:

(a) the Parliament of Western Australia refers to the

Parliament of the Commonwealth the following

matters or matters that include, or are included in, the

following matters:

(i) the maintenance of children and the payment

of expenses in relation to children or child

bearing;

(ii) parental responsibility for children; or

(b) Western Australia adopts this Part.

(3) This Part extends to a State under subsection (1) or (2) only

for so long as there is in force:

[2017] FamCAFC 258 Reasons Page 12

(a) an Act of the Parliament of the State by which there is

referred to the Parliament of the Commonwealth:

(i) the matters referred to in subparagraphs

(2)(a)(i) and (ii); or

(ii) matters that include, or are included in, those

matters; or

(b) a law of the State adopting this Part.

(4) This Part extends to a State at any time under subsection (1) or

paragraph (2)(a) only in so far as it makes provision with

respect to:

(a) the matters that are at that time referred to the

Parliament of the Commonwealth by the Parliament

of the State; or

(b) matters incidental to the execution of any power

vested by the Constitution in the Parliament of the

Commonwealth in relation to those matters.

c) In addition, s 69ZH provides:

Additional application of Part

(1) Without prejudice to its effect apart from this section, this

Part also has effect as provided by this section.

(2) By virtue of this subsection, Subdivisions BA and BB of

Division 1, Divisions 2 to 7 (inclusive) (other than

Subdivisions C, D and E of Division 6 and sections 66D,

66M and 66N), Subdivisions C and E of Division 8,

Divisions 9, 10 and 11 and Subdivisions B and C of Division

12 (other than section 69D) have the effect, subject to

subsection (3), that they would have if:

(a) each reference to a child were, by express provision,

confined to a child of a marriage, and

(b) each reference to the parents of the child were, by

express provision, confined to the parties to the

marriage.

(3) The provisions mentioned in subsection (2) only have effect as

mentioned in that subsection so far as they make provision

with respect to the parental responsibility of the parties to a

marriage for a child of the marriage, including (but not being

limited to):

[2017] FamCAFC 258 Reasons Page 13

(a) the duties, powers, responsibilities and authority of

those parties in relation to:

(i) the maintenance of the child and the payment

of expenses in relation to the child; or

(ii) whom the child lives with, whom the child

spends time with and other aspects of the care,

welfare and development of the child; and

(b) other aspects of duties, powers, responsibilities and

authority in relation to the child:

(i) arising out of the marital relationship; or

(ii) in relation to concurrent, pending or

completed divorce or validity of marriage

proceedings between those parties; or

(iii) in relation to the divorce of the parties to that

marriage, an annulment of that marriage or a

legal separation of the parties to that marriage,

that is effected in accordance with the law of

an overseas jurisdiction and that is recognised

as valid in Australia under section 104.

(4) By virtue of this subsection, Division 1, Subdivisions C, D and

E of Division 6, section 69D, Subdivisions D and E of

Division 12 and Divisions 13 and 14 and this Subdivision,

have effect according to their tenor.

d) Section 67ZC, which is within sub-div E of div 8 of pt VII, provides:

Orders relating to welfare of children

(1) In addition to the jurisdiction that a court has under this Part

in relation to children, the court also has jurisdiction to make

orders relating to the welfare of children.

…

(2) In deciding whether to make an order under subsection (1) in

relation to a child, a court must regard the best interests of

the child as the paramount consideration.

…

64. As to the power to authorise treatment and make a declaration of Gillick

competence, the Explanatory Memorandum to the Bill which introduced

[2017] FamCAFC 258 Reasons Page 14

s 67ZC (Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth))

at [319] recorded that it:

provides the court with jurisdiction relating to the welfare of children in

addition to the jurisdiction that the court has under Part VII in relation to

children. This jurisdiction is the parens patriae jurisdiction explained by

the High Court in SMB and JWB; Secretary, Department of Health and

Community Services (Re Marion) (1992) 175 CLR 218.

65. Thus, as the Attorney-General submits, “s 67ZC(1) should be understood as

conferring power on the Court, on the application of a parent, to grant any

authorisation necessary in circumstances of the kind considered in Marion’s

case” (see Minister for Immigration and Multicultural and Indigenous Affairs v

B (2004) 219 CLR 365 per Gleeson CJ and McHugh J at [51] – [53]).

66. Similarly, the Court has power to make a declaration, on the application of a

parent, that a child is Gillick competent to consent to proposed treatment. As

the Attorney-General identifies, there are three sources for that power, namely

s 67ZC, the Court’s general powers conferred by s 34(1) of the Act (see R v

Ross-Jones; Ex Parte Beaumont (1979) 141 CLR 504 at 509 per Gibbs J), and

the Court’s power to make “parenting orders” (s 65D(1) and s 64B(2)(i)) (see

Re: Sarah [2014] FamCA 208 at [30] – [43]; Re Sean and Russell (Special

Medical Procedures) (2010) 44 Fam LR 210 at [96] – [108]; Re Lucy (Gender

Dysphoria) (2013) 49 Fam LR 540).

67. We agree with the Attorney-General that the contrary view of Carew J in

Re: Jaden [2017] FamCA 269 at [22] – [33] should be rejected. We note that

the Secretary for the Department of Family and Community Services relies on

this case in support of his submission that this Court has no power to make a

declaration that a child is Gillick competent to consent to proposed treatment,

but that submission cannot be maintained.

68. Carew J adopts an unduly narrow view of the provisions conferring power on

the Court, whereas such provisions should in fact be construed as liberally as

possible (for example see PMT Partners Pty Ltd (In Liq) v Australian National

Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ,

Gaudron and McHugh JJ; Conway v The Queen (2002) 209 CLR 203 at [36]

per Gaudron A-CJ, McHugh, Hayne and Callinan JJ). In particular, references

in the legislation to “orders” should not be construed as to exclude

“declaration”.

69. Turning to the issue of jurisdiction, as explained by the Attorney-General, “the

power to make orders of the kind [in question here] is confined to cases where

this Court has jurisdiction in accordance with the terms of Div 12 of Pt VII”,

and “[t]he provisions operate differently in the case of a child of a marriage, on

one hand, and the case of an ex-nuptial child, like Kelvin, on the other.”

[2017] FamCAFC 258 Reasons Page 15

70. In the former case, s 69ZH applies, and even if s 67ZC(1) is read as only

referring to a child of the marriage, the making of orders of the kind the subject

of these proceedings falls within that paragraph (see the discussion of Marion’s

case in P v P (1994) 181 CLR 583, at 599 – 601 per Mason CJ, Deane, Toohey

and Gaudron JJ).

71. In the latter case, s 69ZE applies. In accordance with s 69ZE(3), Pt VII of the

Act applies to New South Wales because there is in force the Commonwealth

Powers (Family Law – Children) Act 1986 (NSW) (“the New South Wales

Act”) (see s 3(1) of that Act).

72. Section 69ZE of the Act and s 3(1) of the New South Wales Act engage

s 51(xxxvii) of the Constitution, and relevantly the matter that is referred to the

Parliament of the Commonwealth is “the custody and guardianship of, and

access to, children” (s 3(1)(b) of the New South Wales Act).

73. As explained by the High Court in P v P (at page 601), provisions permitting

parents to seek authorisation from the Family Court for the administration of

treatment are “directly concerned with parental rights and the custody and

guardianship of infants”. In other words, such provisions are with respect to the

guardianship of children, and the referral is sufficient to support the making of

orders of the kind in issue here.

74. We note, as submitted by the Attorney-General, that this conclusion is not

impacted by the change in language in the Act from the time of the New South

Wales Act. As explained by Murphy J in Re Lucy, the bundle of rights

comprising guardianship includes or is included within the notion of “parental

responsibility” within the meaning of s 69ZE(3)(a) of the Act.

75. Nor is the conclusion denied by the terms of s 69ZH(2). As s 69ZH(1) makes

clear, the application of Pt VII for which s 69ZH(2) provides, is “without

prejudice to” its application apart from s 69ZH. Section 69ZH(2) thus makes

provision for the application of Pt VII in addition to that for which s 69ZE

provides (see also Re Lucy at [56] – [62]).

The Effect of New South Wales Legislation

76. What is the effect, if any, on these proceedings of s 49 of the Minors (Property

and Contracts) Act 1970 (NSW) and ss 174 and 175 of the Children and Young

Persons (Care and Protection) Act 1998 (NSW).

77. This was a question addressed by all of the intervenors, with only A Gender

Agenda Inc. arguing that s 49 “has modified the common law so that a child of

16 is competent to consent to medical treatment (including Stage 2 treatment)

and no assessment of Gillick competence is required” (Amended Submissions

filed 14 September 2017 at paragraph 1). Of course, if A Gender Agenda Inc. is

correct in this submission, then it would be unnecessary to answer question 2 of

[2017] FamCAFC 258 Reasons Page 16

the case stated. Once again though, we are persuaded by the submissions of the

Attorney-General.

78. Section 49 of the Minors (Property and Contracts) Act 1970 (NSW) provides:

(1) Where medical treatment or dental treatment of a minor aged less

than sixteen years is carried out with the prior consent of a parent or

guardian of the person of the minor, the consent has effect in

relation to a claim by the minor for assault or battery in respect of

anything done in the course of that treatment as if, at the time when

the consent is given, the minor were aged twenty-one years or

upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged

fourteen years or upwards is carried out with the prior consent of the

minor, his or her consent has effect in relation to a claim by him or

her for assault or battery in respect of anything done in the course of

that treatment as if, at the time when the consent is given, he or she

were aged twenty-one years or upwards.

(3) This section does not affect:

(a) such operation as a consent may have otherwise than as

provided by this section, or

(b) the circumstances in which medical treatment or dental

treatment may be justified in the absence of consent.

(4) In this section:

…

medical treatment means:

(i) treatment by a medical practitioner in the course of the

practice of medicine or surgery, or

(ii) treatment by any person pursuant to directions given in the

course of the practice of medicine or surgery by a medical

practitioner.

79. That provision modifies the approach adopted by the courts in relation to

medical treatment in two ways. First, s 49(1) provides that consent of the

parent or guardian is effective as a defence to a claim of assault or battery, and

that would be so even if the minor is Gillick competent to consent on their own

behalf.

80. Secondly, s 49(2) provides that the minor’s consent is effective to provide that

same defence, and that would prima facie be so even if the minor is not Gillick

competent.

[2017] FamCAFC 258 Reasons Page 17

81. As the Attorney-General submits, being limited to a claim by the minor for

assault or battery:

… where medical treatment is proposed to be administered to a child, s 49

does not provide an answer to the whole of the law’s concern with the

quality of that child’s consent, or the parental consent on his or her behalf,

identified in Marion’s case … Treating doctors cannot rely on s 49 to

provide an answer to a criminal charge if they do not obtain parental

consent in the case of a child who is not Gillick competent or if, in relation

to such a child, there is no application to the court to authorise treatment of

a kind to which parents cannot consent. Accordingly, if … the

circumstances are ones in which the common law requires authorisation by

the court, that is not altered by s 49.

(Submissions filed 30 August 2017 at paragraph 110)

82. In any event, because in this case Kelvin is Gillick competent, it is immaterial

whether the effect of s 49(2) would have been to render Kelvin able to consent

to stage 2 treatment, even absent such a finding.

83. Section 174(1) of the Children and Young Persons (Care and Protection) Act

1998 (NSW) deals with emergency medical treatment, and stage 2 treatment

cannot be characterised as such. Thus, it has no effect on these proceedings.

84. Section 175(1) of that Act limits the circumstances in which specified kinds of

medical treatment (defined in s 175(5)) can be carried out on a child under

16 years of age. If stage 2 treatment can be brought within that category,

s 175(2) provides alternatives to obtaining authorisation from the Family Court.

However, it does not permit a child under 16 years of age to consent, or to

authorise a child’s parent to do so on his or her behalf. Thus it has no relevant

effect in these proceedings, and in any event, Kelvin is over 16 years of age.

The Form and Content of the Case Stated

85. There are serious issues arising from the form and content of the stated case.

86. First, it is essential that the case state the ultimate facts found by the court

below, but not the evidence upon which the ultimate facts were found (De

Simone v Bevnol Constructions & Developments Pty Ltd (No 2) (2010) 30 VR

211 at 215).

87. Here, his Honour’s order of 16 February 2017 stating the case identifies the

facts as the facts “set out in [his] Reasons for Judgment delivered on

16 February 2017”. At [17] – [31] of those reasons, a factual background of the

matter is set out, but that appears to comprise the evidentiary facts before

his Honour, rather than the “ultimate facts” found by his Honour. Fortunately,

this alone does not prevent a full court from addressing the case stated. Here,

on 25 August 2017 the primary judge amended the case stated by setting out in

detail the facts agreed between the father, the Independent Children’s Lawyer

[2017] FamCAFC 258 Reasons Page 18

(“ICL”) and the intervenors for the purposes of the case stated. That plainly

overcomes the difficulty inherent in the original order, and enables this Court to

perform its function, subject to one matter which we explain as follows.

88. It is unclear from the case stated and from the submissions we have received,

what we are to do with the contents of [51] – [54] set out above under the

heading “Court Outcomes, Delay and Costs”. In no sense can they be described

as ultimate facts, and they are plainly not facts relevant to the questions asked.

We were given no meaningful assistance by any of the parties in understanding

on what basis these paragraphs find their way into the stated case, and thus we

propose to ignore them.

89. At first blush [55] and [56] set out above might be seen to be in that same

category, but there were helpful submissions made by at least two of the

intervenors as to the use that we can make of those paragraphs despite them not

being able to be described as ultimate facts found by his Honour. Those

submissions explained how those paragraphs, based as they are on the affidavit

of Associate Professor Michelle Marian Telfer filed 8 August 2017 (see [57(e)]

above), demonstrate the advances in medical science in treating and

understanding Gender Dysphoria, and we will take those paragraphs into

account where appropriate.

90. Secondly, and perhaps more importantly, a primary judge has no power to

reserve a question that does not arise on the facts stated, and it is

inappropriate for a full court to answer such a question (Director of Public

Prosecutions, South Australia v B (1998) 194 CLR 566 at [11] – [12] per

Gaudron, Gummow and Hayne JJ; Bass v Permanent Trustee Co Ltd (1999)

198 CLR 334 at [47] – [49] per Gleeson CJ, Gaudron, McHugh, Gummow,

Hayne and Callinan JJ).

91. Here, prima facie, question 1, and possibly question 2, are in that category.

92. In relation to question 1, it is only relevant to the circumstance of a child who

is not Gillick competent, since the Full Court in Re Jamie made it clear that the

Court’s authorisation for treatment is not required in the case of a child who is

Gillick competent. However, his Honour found that Kelvin is Gillick competent

to consent to stage 2 treatment for Gender Dysphoria, and that is a fact stated

for this Court. Thus, the question of whether Court approval is required where

the child is not Gillick competent, does not arise on the facts stated.

93. As to question 2, his Honour has found that Kelvin is Gillick competent, and

thus it might be thought that the question of whether it is mandatory to apply to

the Court for a determination on Gillick competence does not arise on the facts

stated.

94. The Attorney-General argues that question 1 does arise on the facts stated

“because of the link between questions 1 and 2”. He submits that question 2

[2017] FamCAFC 258 Reasons Page 19

arises on the facts stated, notwithstanding his Honour’s finding of Gillick

competence, because “no dispositive orders have yet been made on the

application made by Kelvin’s father”, and “[i]f an application to the Court is

unnecessary, that may be a factor tending against the making of any orders by

the primary judge, in the exercise of his Honour’s discretion” (Submissions

filed 30 August 2017 at paragraph 79).

95. If that submission is correct, and question 2 does arise and can be answered, the

link with question 1 is said to be that that question “arises at least as a step

along the way to answering question 2” (Submissions filed 30 August 2017 at

paragraph 80).

96. In relation to question 2, it is plainly arguable that his Honour has gone too far

by concluding that Kelvin is Gillick competent and then stating a case as to

whether it is mandatory to apply to the Court for that very determination. The

first application made to his Honour was for a declaration that Kelvin is Gillick

competent, and his Honour has proceeded on that application and then made

the necessary finding. The fact that he has not yet made dispositive orders can

only be seen to provide a basis for questions 3 to 6 of the stated case.

97. Further, that outcome is consistent with the terms of s 94A(1) itself. That

subsection provides that a primary judge can seek the opinion of a Full Court

“before the proceedings are further dealt with”. Here, the relevant finding has

been made, and before taking the next step, a question can be asked of the Full

Court as to what if any order or declaration should be made. Any question

about whether it is mandatory to make an application to determine Gillick

competence is hypothetical given the stage the proceedings have reached.

98. It could reasonably be argued that what his Honour should have done, given the

stage that the proceedings had reached, was to complete the case and let any

aggrieved party appeal.

99. What then of question 1? If question 2 does not arise on the facts stated, then

nor does question 1, given the “link” relied on is that the answer to question 1

affects the answer to question 2.

100. However, if we are wrong about question 2, does question 1 still arise? In our

view it does not.

101. It is an insufficient basis to support a question simply because, as the argument

goes, if the answer to question 1 is no, then the answer to question 2 is also no.

Question 1 cannot be confined to being a question that arises as a step along the

way to answering question 2. Primarily, it is a stand-alone question which as

explained above simply does not arise on the facts stated, and it is hypothetical.

102. In these circumstances it is “inappropriate” for this Court to answer questions 1

and 2. However, that does not mean we cannot in fact answer the questions; to

do so is only “inappropriate”. Given that this case stated has advanced to the

[2017] FamCAFC 258 Reasons Page 20

point of a hearing, in which we have received extensive submissions from all

parties, we intend to answer questions 1 and 2. Indeed, as senior counsel for the

first intervenor said during oral submissions:

Can I briefly also address your Honours on whether question 1 arises or

perhaps how it arises. In my submission, it does arise for this court’s

determination, because although questions 1 and 2 have been, if you like,

conceptually teased out as two separate questions, fundamentally, the issue

confronting the trial judge and now confronting this court, is who can give

authorisation for treatment, stage 2 treatment, for a person, a young person

with gender dysphoria. Should it be the court? Could it be the parents?

Could it be the child? That’s the overarching issue that confronts the court.

(Transcript, 21 September 2017, p 67, l 10 – 17)

103. We also take comfort that it is open to this Court to answer questions 1 and 2,

in what the High Court said in another context in Bass v Permanent Trustee Co

Ltd (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at

[51] – [52]).

104. Finally, as noted by the Attorney-General (Submissions filed 30 August 2017,

at paragraph 2), the issues raised in this case are of “general importance” and

need to be resolved “as soon as possible”. We agree with that sentiment,

although it is disappointing that the call for legislative intervention following

Re Jamie went unheeded.

105. The third matter of concern is the issue of “inferences”.

106. Section 94A(2) of the Act provides as follows:

Case Stated

…

(2) The Full Court may draw from the facts and the documents any

inference, whether of fact or of law, which could have been drawn

from them by the Judge.

107. In relation to the facts stated, neither the applicant, the ICL nor any of the

intervenors identified any inference that could be drawn from those facts for

the purposes of the case stated.

108. However, on 25 August 2017 the primary judge made the following order:

2. Subject to any other order the Full Court might make, no later than

seven days before the commencement of this matter is listed before

the Full Court each party and the Independent Children’s Lawyer

give to all other parties, the Independent Children’s Lawyer and the

Appeals Registrar notice of any inference to be drawn from any

document referred to in paragraph 50 of the Facts in the Stated

Case.

[2017] FamCAFC 258 Reasons Page 21

109. On 29 August 2017 his Honour amended that order by changing the paragraph

number referred to from 50 to 52.

110. As can be seen the heading immediately above [57] herein (which was

paragraph 52 in the case stated), reads “Other Inferences”, and then the

paragraph lists a number of documents, including his Honour’s reasons for

judgment.

111. In accordance with his Honour’s order, the Australian Human Rights

Commission and the Secretary for the Department of Family and Community

Services filed further written submissions setting out the inferences that they

suggest can be drawn from the documents in [57] above. The Royal Children’s

Hospital also tendered to this Court at the hearing of the stated case a written

submission responding to the submissions of the Secretary for the Department

for Family and Community Services.

112. The other intervenors took the position that:

a) no inference need be drawn from the documents because all relevant

factual information for the purposes of the case stated is contained in the

agreed facts, and indeed some of those facts, and in particular those

explaining the current state of medical science in relation to the

treatment of Gender Dysphoria are drawn from the material in the

documents in [57] above; and

b) in any event, no inference should be drawn that is contrary to the agreed

facts or that is controversial (Fowles v The Eastern and Australian

Steamship Co Ltd (1913) 17 CLR 149 at 196 per Gavan Duffy and Rich

JJ), or where there is doubt about what inference should be drawn.

113. At least one intervenor queried whether any inference could be drawn given

that the admissibility of the documents was in question. The provenance of

many of the documents was unclear, the qualifications and expertise of the

authors of most of the documents had not been established, and none of the

authors had been the subject of cross-examination before the primary judge, or

at all. Thus, applying the terms of s 94A(2), if the documents were not

admissible before the primary judge, and his Honour could not draw any

inference of fact or law from them, then we are not able to draw any inference.

114. We accept though that all relevant and necessary information that might be

drawn from those documents is before us in the stated facts, and we do not

propose to draw any further inferences.

THE BROADER CONTEXT FOR THE CASE STATED

115. Before proceeding to deal with each of the questions stated, we cannot help but

observe that this case, and other earlier cases involving Gender Dysphoria,

have attracted widespread media attention. Insofar as the reporting of the legal

[2017] FamCAFC 258 Reasons Page 22

issues is concerned, at least some of the reports have, at best, been incomplete

and, at worst, inaccurate.

116. We think it important to emphasise that the Court in this case is concerned to

examine, within the confines of the questions stated, whether there is any role

for the Family Court in cases where there is no dispute between parents of a

child who has been diagnosed with Gender Dysphoria, and where there is also

no dispute between the parents and the medical experts who propose the child

undertake treatment for that dysphoria. To paraphrase counsel for the Royal

Children’s Hospital, the question is why should the family of a child in one

wing of the Hospital be forced to come to court before recommended medical

treatment commences when the family of a child in another wing of the

Hospital is not required to do so, in circumstances where both forms of

treatment carry a significant risk of making the wrong decision as to a child’s

capacity to consent and with both forms of treatment the consequences of a

wrong decision are particularly grave.

117. The decision in each case that comes before the Court relates to the specific

circumstances of the individual child the subject of the proceedings. They are

neither prescriptive nor permissive of broader issues that may be raised in

public debate. Importantly the Court has always recognised the exquisitely

difficult decisions confronting parents in these cases and what we consider is

an appropriate concern about intruding into the lives of parents whom the

evidence reveals to be loving, caring and supportive of their child. For

example, as was said by Murphy J in Re Sam and Terry (Gender Dysphoria)

(2013) 49 Fam LR 417:

102. … a decision that court authorisation is necessary can be seen to

intrude upon the lives of loving, caring and committed parents who

live daily their children’s difficulties, who are intimately aware of

the day-to-day difficulties confronted by their children and who deal

with their numerous (serious) concerns on a daily basis. Those

exceptionally difficult day-to-day tasks are accompanied by a

miscellany of difficult day-to-day decisions and those decisions fall

upon them, not others. I also accept that parents who fit that

description can legitimately say that they know their children better

than anyone, much less a court, ever will. There is real legitimacy

to a position adopted by parents who fit that description that it is

them, and not the court, who, together with appropriately qualified

expert clinicians, are best placed to decide what is right for their

children. I am also not unaware that cost and stress will attend court

authorisation. As I said in Re Sean and Russell, it would be sad if

the courtroom was to replace a caring, holistic environment within

which an approach by parents and doctors alike could deal with

difficult decisions.

[2017] FamCAFC 258 Reasons Page 23

118. Further, it is important to point out that in each and every case in which

authorisation has been sought from this Court for treatment for Gender

Dysphoria relying upon Re Jamie and, before it, Re Alex: Hormonal Treatment

for Gender Identity Dysphoria (2004) FLC 93-175 (“Re Alex”), the decision

has been informed by comprehensive evidence from a miscellany of medical

specialists from different disciplines (for example, psychiatry, psychology,

paediatrics, and endocrinology) and by evidence from parents, or those

otherwise charged directly with the care, welfare and development of the child

concerned. That evidence has revealed, without exception, a careful,

comprehensive and considered medical/psychiatric assessment involving

multiple disciplines.

119. By way of corollary, in no case has contradictory evidence been forthcoming,

including from the Independent Children’s Lawyers, to challenge the

desirability of the relevant treatment. At least some of the parties in this case

use that fact to argue that court proceedings, with the attendant stress and

expense, have no practical utility and suggest that this, of itself, is a significant

pointer to this Court holding that there is no role for courts in the process,

absent a dispute between parents or between parents and doctors. However, we

accept that the fact that there has, at least until now, been a requirement for

court involvement, may in itself serve as a filter of the types of case where

stage 2 treatment is recommended and undertaken. The issue we must

determine is whether the law should now require such a filter in cases of

Gender Dysphoria, when no such filter is required in most cases involving

other medical conditions.

QUESTION 1

Does the Full Court confirm its decision in Re Jamie (2013) FLC 93-547

to the effect that Stage 2 treatment of a child for the condition of Gender

Dysphoria in Adolescents and Adults in the Diagnostic and Statistical

Manual of Mental Disorders (Fifth Edition) DSM-5 (the treatment),

requires the court’s authorisation pursuant to s 67ZC of the Family Law

Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give

informed consent?

The Application of Marion’s Case

120. The first stated question posed in the case stated begs, implicitly, a more

fundamental question, namely whether any principle or principles emerging

from the decision of the High Court in Marion’s case bound the Court in Re

Jamie, and binds this Court, to find that court authorisation is required for stage

2 treatment of Gender Dysphoria.

121. The argument here is that the Full Court in Re Jamie incorrectly interpreted and

applied the principles in Marion’s case. It is said that the plurality in Marion’s

[2017] FamCAFC 258 Reasons Page 24

case only dealt with sterilization which was “non-therapeutic”, and their

decision does not provide a basis for requiring court authorisation where the

treatment is therapeutic.

122. Further, it is argued that in speaking of “[c]ourt authorization [being] required,

first, because of the significant risk of making the wrong decision, either as to a

child’s present or future capacity to consent or about what are the best interests of

a child who cannot consent, and secondly, because the consequences of a wrong

decision are particularly grave” (at 250) the plurality in Marion’s case were still

only referring to non-therapeutic sterilization.

123. Before dealing with those arguments it is important to recognise the context in

which decisions about the authority of parents to authorise medical treatment

for their non-Gillick competent children arise. The right and responsibility of

parents to decide upon medical treatment for their non-Gillick competent

children, reflected through the prism of the children’s best interests, is the

default position, not the exception. (See for example State of Queensland v B

[2008] 2 Qd R 562; Re Inaya (Special Medical Procedure) (2007) 38 Fam LR

546). In Marion’s case, the plurality put it this way (at 239 – 240):

Where this parental power exists, two principles are involved. First, the

subjective consent of a parent, in the sense of a parent speaking

for the child, is, ordinarily, indispensable. That authority emanates from a

caring relationship. Secondly, the overriding criterion to be applied

in the exercise of parental authority on behalf of a child is the welfare

of the child objectively assessed. That these two principles become, for all

practical purposes, one is a recognition that ordinarily a parent of a child

who is not capable of giving informed consent is in the best position to act

in the best interests of the child. Implicit in parental consent is understood

to be the determination of what is best for the welfare of the child.

124. Any court authorisation for that treatment is a departure from the exercise of a

right and responsibility ordinarily vested in parents. Of course, routine

treatments for everyday medical conditions embrace that parental right and

responsibility and do not require court authorisation. However, other

circumstances may dictate the need for court intervention. For example

disputes between parents or experimental or novel treatment or treatment for

unusual or novel conditions can present difficulties; those circumstances may

require a determination by a court of the best interests of the relevant child, in

other words by a source other than those who would usually be regarded as

being “in the best position to act in the best interests of the child”.

125. In addition, other proposed treatments, or treatments for other conditions,

collectively described in Marion’s case [at 232, 239, 240, 249, 250 and 253] as

“special cases” are productive of a requirement for court authorisation

irrespective of unanimity on the part of parents and the medical experts. In

those “special cases” the usual parental right and responsibility for deciding

[2017] FamCAFC 258 Reasons Page 25

upon their child’s care is abrogated in favour of court determination. Marion’s

case dealt with one such treatment in the circumstances of the girl for whom it

was proposed. A central component of deciding whether Marion’s case requires

this Court to answer to the first stated question in the affirmative is deciding

whether the decision is specific to the treatment proposed for “Marion” and/or

to cases directly analogous to her circumstances.

126. In strict point of principle, Marion’s case is binding upon this Court only in

respect of non-therapeutic sterilization of a child who is not Gillick competent

and who, by reason of disability, will never be Gillick competent. Needless to

say, however, any statements by the High Court which might be seen, strictly,

as obiter are, and should be, highly persuasive where relevant.

127. The first point to be made is that statements made in Marion’s case by both the

plurality and by Brennan J in the course of discussing the scope of parental

power to consent to medical treatment on behalf of children who are not Gillick

competent are indicative of the principles enunciated not being restricted to

sterilization. For example, in posing the question “Is sterilization a special

case”, the plurality said, at 239, that if it is clear that the child (through

intellectual disability) is:

… incapable of giving valid informed consent to medical treatment, the

second question arises; namely, whether there are kinds of intervention

which are, as a general rule, excluded from the scope of parental power to

consent to; specifically whether sterilization is such a kind of intervention.

(Emphasis added)

128. Similarly, as the plurality later acknowledged at 240, the arguments advanced,

at least from the Commonwealth were to the effect that “there are kinds of

intervention which are excluded from the scope of parental power …”

(Emphasis added).

129. In their joint judgment Mason CJ, Dawson, Toohey and Gaudron JJ said this

(at 249 – 250):

There are, in our opinion, features of a sterilization procedure or,

more accurately, factors involved in a decision to authorize

sterilization of another person which indicate that, in order to ensure

the best protection of the interests of a child, such a decision should

not come within the ordinary scope of parental power to consent to

medical treatment. Court authorization is necessary and is, in

essence, a procedural safeguard. Our reasons for arriving at this

conclusion, however, do not correspond precisely with any of the

judgments considered. We shall, therefore, give our reasons. But

first it is necessary to make clear that, in speaking of sterilization in

this context, we are not referring to sterilization which is a by-

product of surgery appropriately carried out to treat some

malfunction or disease. We hesitate to use the expressions

[2017] FamCAFC 258 Reasons Page 26

“therapeutic” and “non-therapeutic”, because of their uncertainty.

But it is necessary to make the distinction, however unclear the

dividing line may be.

As a starting point, sterilization requires invasive, irreversible and

major surgery. But so do, for example, an appendectomy and some

cosmetic surgery, both of which, in our opinion, come within the

ordinary scope of a parent to consent to. However, other factors

exist which have the combined effect of marking out the decision to

authorize sterilization as a special case. Court authorization is

required, first, because of the significant risk of making the wrong

decision, either as to a child’s present or further capacity to consent

or about what are the best interests of a child who cannot consent,

and secondly, because the consequences of a wrong decision are

particularly grave.

130. As can be seen it was recognised by the plurality in Marion’s case that there is

an “unclear dividing line between cases which must be authorised by a court

and those which may not” (also see Re Sean and Russell and Re Sam and

Terry). Equally, the distinction between what might be regarded as

“therapeutic” or “non-therapeutic” is in some cases by no means easy to draw.

As Brennan J said in Marion’s case, at 274, “… factual difficulties are

unavoidable in deciding whether medical treatment is therapeutic or non-

therapeutic”.

131. The decision in Marion’s case, and more specifically the comments made

within it, examples of which we have just given, have not been taken as

limiting the cases in which court authorisation is required to sterilization (for

example see Re GWW and CMW (1997) FLC 92-748 per Hannon J at 84,108;

Re Sean and Russell at [61]; and Re Sam and Terry at [83] – [85]). What

became unclear though, as the law developed, is whether those comments were

only applicable where the treatment was non-therapeutic.

132. In Re Jamie, both Finn J and Strickland J referred to and relied on what

Brennan J (who was in dissent, but not on this point) said in Marion’s case as

to the therapeutic/non-therapeutic distinction. His Honour explained it in the

following way (at 269):

It is necessary to define what is meant by therapeutic medical treatment. I

would define treatment (including surgery) as therapeutic when it is

administered for the chief purpose of preventing, removing or ameliorating

a cosmetic deformity, a pathological condition or a psychiatric disorder,

provided the treatment is appropriate for and proportionate to the purpose

for which it is administered. “Non-therapeutic” medical treatment is

descriptive of treatment which is inappropriate or disproportionate having

regard to the cosmetic deformity, pathological condition or psychological

disorder for which the treatment is administered and of treatment which is

administered chiefly for other purposes.

[2017] FamCAFC 258 Reasons Page 27

133. The important point his Honour there makes in relation to therapeutic medical

treatment is in the proviso, namely “provided the treatment is appropriate for

and proportionate to the purpose for which it is administered.” That introduces

an element of proportionality into the discussion, and that is what was picked

up by their Honours (for example see Finn J at [180]). In other words, it is

necessary to weigh up the therapeutic benefits of the treatment against the

risks.

134. Evident from what Brennan J said, and in the reasons of the plurality, is a focus

upon the means by which the parameters of parental authority might be

determined. It is recognised that treatment that might have grave or irreversible

consequences can nevertheless fall within the scope of parental authority

because of the purpose to which the treatment is directed. Equally, treatment

that might not meet the description of having “grave or irreversible

consequences” might nevertheless fall outside of the scope of parental authority

because of its novelty, or its experimental nature, or its place outside of

accepted medical science and, as such, may render it treatment that “is

administered chiefly for other purposes”.

135. Of course, challenges to a form of treatment that might fit that description can

be the province of individual challenge by a person or body with relevant

standing. Issues of the instant kind arise when a particular treatment poses the

question, as the majority put it in Marion’s case, “Is [the] procedure a kind of

intervention which is, as a general rule, excluded from the scope of parental

power?” (Emphasis added).

136. Because the issue at hand is a general rule applicable in all cases of a particular

type and the focus is upon the limit of parental authority, the “special cases” in

which parental authority is abrogated must take account of the fact that:

Proportionality and purpose are the legal factors which determine the

therapeutic nature of medical treatment. Proportionality is determined as a

question of medical fact. Purpose is ascertained by reference to all the

circumstances but especially to the physical or mental condition which the

treatment is appropriate to affect.

(Marion’s case, per Brennan J at 274).

137. Thus, we consider that no binding principle emerging from Marion’s case

requires this Court, or required the Court in Re Jamie, to hold that court

authorisation is necessary for stage 2 treatment for Gender Dysphoria for a

child who is not Gillick competent.

138. However, dicta in Marion’s case is strongly persuasive of the proposition that

the types of medical treatment for which court authorisation is required are

neither closed nor confined to sterilization of a child who is not, and never will

be, Gillick competent. Rather, as a general rule, whether court authorisation is

[2017] FamCAFC 258 Reasons Page 28

required will be dependent upon the entirety of the circumstances surrounding

the particular treatment.

139. The same dicta is indicative of the importance of ascertaining whether a

particular treatment is therapeutic or non-therapeutic in treating the “cosmetic

deformity, pathological condition or psychiatric disorder” in question. That in

turn must depend upon, among other things, evolving medical science which,

notoriously, occurs at a very rapid pace.

The Background to Re Jamie

140. In the lead up to Re Jamie the state of the law was very much influenced by the

decision of Nicholson CJ in Re Alex, being the first case in which the Family

Court had been asked to provide authorisation for treatment for a young person

who was born biologically female but who identified as male. The treatment

sought was both stage 1 and stage 2, and his Honour found that court

authorisation was necessary for both stages, presumably it seems on the basis

that (at [195]):

The current state of knowledge would not, in my view, enable a finding that

the treatment would clearly be for a “malfunction” or “disease” and thereby

not within the jurisdiction of this Court as explained by the majority in

Marion’s case …

His Honour also reasoned (at [196]):

… There are significant risks attendant to embarking on a process that will

alter a child or young person who presents as physically of one sex in the

direction of the opposite sex, even where the Court is not asked to authorise

surgery …

141. As was sought to be emphasised in Re Jamie (at [79]), Nicholson CJ in Re Alex

found that the application before him “would seem a novel one and [he] was

not referred to any Australian or overseas authority with similar fact

characteristics”. The “novel” application before his Honour and, by inference,

the “novel” treatment to which the application referred, shaped Nicholson CJ’s

interpretation which, in turn, shaped single-instance judgments thereafter. It is

important to understand that Re Jamie occurred in that context and was the first

decision of the Full Court in which these issues were determined.

142. The evidentiary context in which applications were heard subsequent to

Nicholson CJ’s judgment is also important in understanding how the law

developed. It was assumed that the law required court authorisation for

(relevantly) stage 2 treatment and there was an absence of contradictory

argument and contrary evidence placed before the Court accordingly. Thus,

whatever reservations were held by judges or concerns for the expense and

stress that court authorisation required, decisions were given accordingly and

those decisions in turn gave shape to the decision in Re Jamie.

[2017] FamCAFC 258 Reasons Page 29

143. For example, despite the sentiments expressed in the passage earlier quoted, in

Re Sam and Terry, the reasons for judgment which were delivered on the same

day as the reasons for judgment in Re Jamie, Murphy J found that stage 2

treatment in that case was “therapeutic” and then said this:

99. Yet, I do not consider that the judgments in Marion’s Case when

read as a whole intend the assignation to a treatment that it is

“therapeutic” or “non-therapeutic” to be of itself solely

determinative of the question of whether court authorisation is

required. Rather, when read as a whole, the judgments in Marion’s

Case suggest a test that consists of assessing together the purpose of

the treatment and its potential consequences.

100. The proposed stage 2 treatments for each of Terry and Sam carry

significant risks and will also have irreversible effects on each of

them in differing ways. For each, the proposed hormonal treatment

carries an increased risk of breast cancer and may adversely affect

fertility. The treatment will also have irreversible physical effects,

such as, in Terry’s case, the growth of facial hair and deepening of

voice and, in Sam’s case, the redistribution of muscle mass and body

fat. Those side effects are significant in themselves but they are also

significant because they are side effects designed to effect hormonal

changes and overt manifestations consistent with a gender different

to each child’s birth gender.

101. There are, I think, “significant risk[s] of making the wrong

decision, … as to [each child’s] present or future capacity to

consent” and I think that when the consequences are expressed as

being steps on the path to changing gender, the consequences can be

described as grave. As Nicholson CJ put it in Re Alex “[t]here are

significant risks attendant to embarking on a process that will alter a

child or young person who presents as physically of one sex in the

direction of the opposite sex, even where the Court is not asked to

authorise surgery”.

…

103. However, the High Court in Marion’s Case also pointed out that,

sometimes, the immediate interests of parents may conflict with the

long-term interests of children who are currently unable to

(lawfully) consent to treatment which they desire. Sometimes a

longer view might also conflict with immediate desires of children,

even those whose views are mature. And, so too, might a longer

view conflict with a recommendation of medical practitioners.

Those circumstances do not necessarily lead to a result that a court

will reach a conclusion different to the parents or the child or

doctors (or a combination of them). But, it does, in my view, mean

that a court should be the decision-maker who considers all of the

relevant interests and considerations and the decision-maker who,

[2017] FamCAFC 258 Reasons Page 30

among those interests and considerations, predominates what it

considers to be the best interests of the relevant children.

(Emphasis in original)

The Decision in Re Jamie

144. In Re Jamie the question before the Full Court was whether court authorisation

was required for both stage 1 and stage 2 treatment of children with Gender

Identity Dysphoria. In other words, were the treatments medical procedures for

which consent lies outside the bounds of parental authority and require the

imprimatur of the Court.

145. Before the Court were the appellant parents, an ICL, and two intervenors,

namely the public authority, and the Australian Human Rights Commission. We

note that the Commonwealth Attorney-General was invited to intervene but that

invitation was not taken up.

146. The ICL’s position, and that of the public authority, was that court authorisation

was required for both stage 1 and stage 2 treatment, relying primarily on Re

Alex (e.g. see [35] – [38], [39] – [45]). The Australian Human Rights

Commission submitted that absent a dispute about the proposed course of

treatment, court authorisation should not be required for stage 1 (see [47]), but

otherwise in relation to stage 2 treatment (for example see [52]).

147. Bearing in mind that Re Jamie was an appeal, limited by the grounds of appeal

and the reasons of the trial judge, the Full Court agreed with the trial judge’s

findings on the evidence, and in particular the medical and expert evidence

before her Honour, that stage 1 treatment is therapeutic in nature, and is fully

reversible. Further, that it is not attended by grave risk if a wrong decision is

made, and it is for the treatment of a malfunction or disease, being a

psychological rather than a physiological disease. Thus, absent a controversy, it

fell within the wide ambit of parental responsibility reposing in parents when a

child is not yet able to make his or her own decisions about treatment.

148. In adopting those findings the Full Court departed from Re Alex, explaining

that not only the state of medical science had moved on, but the Court’s

understanding of the same had evolved.

149. As to stage 2 treatment, again, on the evidence, and in particular the medical

and expert evidence before the trial judge, the Full Court agreed with the trial

judge’s findings that although stage 2 treatment is therapeutic in nature, it was

also irreversible in nature (at least not without surgery). Thus, as Finn J said at

[182]:

… in a case such as this, the therapeutic benefits of the treatment would

have to be weighed or balanced against the risks involved and the

consequences which arise out of the treatment being irreversible, and this

[2017] FamCAFC 258 Reasons Page 31

would seem to be a task appropriate for a court, given the nature of the

changes that stage two of the treatment would bring about for the child.

150. In other words, and recalling what Brennan J said at 269 in Marion’s case, and

for those reasons, it was for the Court to authorise such treatment.

Departure from Re Jamie

151. It seems that the first stated question has been interpreted as asking this Court

to “overrule” the Full Court decision in Re Jamie, but that is not what the

question requires. In its terms it asks whether this Full Court “confirm[s] its

decision in Re Jamie … to the effect that Stage 2 treatment … requires the

court’s authorisation … unless the child [is] Gillick competent to give informed

consent”.

152. That question can and should be answered by considering whether it is

appropriate to now depart from Re Jamie in order that the law is able to

effectively reflect the current state of medical knowledge. It is readily apparent

that the judicial understanding of Gender Dysphoria and its treatment have

fallen behind the advances in medical science.

153. That is the primary focus of the submissions of the Australian Human Rights

Commission, and it is recognised as an available and necessary approach by the

applicant, the ICL and each of the other intervenors. For example, the

Attorney-General put it this way:

32. One example not mentioned in this catalogue is the possibility that a

common law rule formulated by a previous intermediate appellate

court on the basis of a particular factual understanding comes to be

seen as plainly wrong because the factual understanding has altered.

That may be so because the factual material upon which the first

court proceeded was, even at the time, infirm. But it may also be so

because, due to developments in science or some other relevant

field, the generally accepted factual understanding has changed. In

either case, a sufficient change in factual understanding may

warrant a departure from a previous decision.

(Submissions filed 30 August 2017)

154. That this is the appropriate approach here is exemplified in the question itself.

It refers to “Stage 2 treatment of a child for the condition of Gender Dysphoria

in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental

Disorders (Fifth Edition) DSM-V”, but that edition was not the edition that was

before the Court in Re Jamie, and thus to that extent as well, the question is

flawed, although that is not the point we are making here. The edition before

the trial judge and the Full Court in Re Jamie was DSM-IV, which was

published in 1994 and then updated in 2000.

[2017] FamCAFC 258 Reasons Page 32

155. DSM-V was mentioned by Bryant CJ in Re Jamie (at [69] and [91]), but that

was because it had only just been published, namely in May 2013. At the time

of the hearing of the appeal in 2012, DSM-IV was the edition that was before

the Full Court, and there was no application to reopen the hearing of the appeal

to make submissions in relation to the changes brought about by the fifth

edition.

156. As explained in the oral submissions of senior counsel for A Gender Agenda

Inc., the change from the fourth edition to the fifth edition in May 2013 was

significant. In the former edition the “condition” was described as a Gender

Identity Disorder, but in the latter edition it is described as Gender Dysphoria.

Thus, it is no longer described as a “disorder”, and further, and significantly,

there was

… a change from the recognition of gender identity disorder to a

recognition of gender dysphoria and, of course, the latter focusses very

much on the dysphoria as the disorder to be treated rather than the issue of

identity, and identity itself is no longer regarded as any kind of pathology.

(Transcript, 21 September 2017, p 66, l 20 – 23)

157. Subtyping by sexual orientation was also deleted in DSM-V, and the diagnosis

for children was separated from that for adolescents and adults.

158. For a child to now be diagnosed with Gender Dysphoria, there must be a

marked incongruence between one’s experienced/expressed gender and

assigned gender, of at least six months’ duration, as manifested by at least six

identified criteria. These criteria must include “a strong desire to be of the other

gender or an insistence that one is the other gender, or some alternative gender

different from one’s assigned gender”. For adolescents, “there must be a

marked incongruence between one’s experienced/expressed gender and

assigned gender, of at least six months’ duration, as manifested by at least two

identified criteria – no criterion is mandatory. For both, the condition must also

be associated with clinically significant distress, or impairment in social,

school, occupational or other important areas of functioning” (DSM-V, page

451).

159. There is no question that the state of medical knowledge has evolved since the

decision in Re Jamie. Apart from the change from DSM-IV to DSM-V,

importantly, there is the development of standards of care for the treatment of

Gender Dysphoria in young people. As again explained by senior counsel for

A Gender Agenda Inc.:

… There’s international standards developed by the international

transgender health body that are found in document [57(d)], but also we

would say, importantly, referred to in the case stated in paragraph 3, so

they are picked up and acknowledged in the case stated as an international

set of standards and, of course, there’s the Australian standards that are

[2017] FamCAFC 258 Reasons Page 33

annexed to the Telfer affidavit and also referred to in the body of the case

stated at paragraph 4. And so the court can see that, those standards are

being developed and, plainly enough, the Australian standards were not in

place at the time that Re Jamie was decided.

(Transcript, 21 September 2017, p 66, l 27 – 35)

160. Senior counsel continued:

In addition, we have evidence from Dr Telfer which has made its way into

the case stated at paragraph [55] about the experience of the gender service

of the Royal Children’s Hospital over a period from 2003 to 2017, which

also encompasses, therefore, new medical knowledge and, in particular, at

paragraph [56] Dr Telfer’s affidavit – I’m sorry the case stated, picking up

from Dr Telfer’s affidavit, the case stated records as a fact that 96 per cent

of patients treated for gender dysphoria at the Royal Children’s Hospital

continue to identify as transgender into late adolescence and so one sees

some evidence there about persistence of gender dysphoria. Again, we

would say that data is new.

(Transcript, 21 September 2017, p 66, l 37 – 45)

161. And finally, and very importantly, as also put by senior counsel for A Gender

Agenda Inc., there is increased knowledge of the risks associated with not

treating a young person who has Gender Dysphoria (see [17] – [23] above).

162. The consensus of the applicant, the ICL and all but one of the intervenors, is

that the development in the treatment of and the understanding of Gender

Dysphoria allows this Court to depart from the decision of Re Jamie. In other

words, the risks involved and the consequences which arise out of the treatment

being at least in some respects irreversible, can no longer be said to outweigh

the therapeutic benefits of the treatment, and court authorisation is not required.

This is so, of course, only where the diagnosis has been made by proper

assessment and where the treatment to be administered is in accordance with

the best practice guidelines described in the case state.

163. The one intervenor who is out of step is the Secretary for the Department of

Family and Community Services. The Secretary says in effect that court

authorisation of stage 2 treatment should continue to be required. But for the

reasons we have given, we do not agree with that submission.

164. The treatment can no longer be considered a medical procedure for which

consent lies outside the bounds of parental authority and requires the

imprimatur of the Court.

165. It is also important to note that that outcome is not unexpected. As some of the

intervenors record, Re Jamie can be viewed as being decided at a particular

point in time, and at a particular stage in the development of legal principle,

and even more importantly of medical science (for example see the applicant’s

[2017] FamCAFC 258 Reasons Page 34

submissions filed 5 June 2017 at paragraph 34). It would not be heresy to

suggest that, in relation to stage 2 treatment, Re Jamie would be decided

differently today.

166. Thus, to the extent that the question can be answered, and despite the flaw in it,

the answer is “no”.

167. We note though that in answering that question we are not saying anything

about the need for court authorisation where the child in question is under the

care of a State Government Department. Nor, are we saying anything about the

need for court authorisation where there is a genuine dispute or controversy as

to whether the treatment should be administered; e.g., if the parents, or the

medical professionals are unable to agree. There is no doubt that the Court has

the jurisdiction and the power to address issues such as those.

168. That is sufficient to dispose of this question, but unless there be any doubt

about the validity of that approach, we need do no more than look at the

principles relevant to when intermediate courts of appeal may depart from their

own earlier decisions.

169. The submissions of the applicant, the ICL and three of the five intervenors,

namely, the Attorney-General, A Gender Agenda Inc., and the Royal Children’s

Hospital, all focus on the well settled principle that a later Full Court will

consider itself free to depart from an earlier decision if that decision can be said

to be “plainly wrong” (for example see Nguyen v Nguyen (1990) 169 CLR 245

per Dawson, Toohey and McHugh JJ at 268 – 270; Gett v Tabet (2009) 254

ALR 504 at [261] – [301]; and F Firm & Ruane and Ors (2014) FLC 93-611 at

[163]). It is said that this Court should find that the decision in Re Jamie fits

that description.

170. Although it is not specified in the context of the plea to “overrule” Re Jamie,

we assume that what is being referred to is that part of the decision in Re Jamie

where the Full Court upheld the trial judge in finding that court authorisation

was required for stage 2 treatment, and in finding that it was for the Court to

determine whether a child is Gillick competent. Indeed, it is always necessary

to be acutely aware of the specific questions asked in a case stated, and the

former issue arises in question 1 of that case, and the latter issue in question 2.

171. However, in our view, it is unnecessary and indeed inappropriate for this Court

to find that Re Jamie was “plainly wrong” in order to answer question 1 and

question 2.

172. Although the general approach of intermediate appellate courts is that they

should follow their previous decisions unless persuaded that they are “plainly

wrong”, the application of that approach is dependent on a finding that no

distinction can be drawn between the facts on which the prior decision is based

and the facts before the subsequent court (F Firm & Ruane and Ors at [163]).

[2017] FamCAFC 258 Reasons Page 35

Here, it is beyond doubt that a relevant distinction can be made and there are

“legally relevant factual differences between the two cases”.

173. In his written submission, as referred to already, the Attorney-General says

(at paragraph 32) that an example of where a previous decision can be found to

be “plainly wrong” is where “a common law rule formulated by a previous

intermediate appellate court on the basis of a particular factual understanding

comes to be seen as plainly wrong because the factual understanding has

altered”. The Attorney continued, “[t]hat may be so because the factual material

upon which the first court proceeded was, even at the time, infirm. But it may

also be so because, due to developments in science or some other relevant field,

the generally accepted factual understanding has changed. In either case, a

sufficient change in factual understanding may warrant a departure from a

previous decision.”

174. That submission is undoubtedly correct, but rather than being a basis to find the

previous decision “plainly wrong”, it is an example of where a subsequent

court can depart from an earlier decision without needing to find that that

decision was “plainly wrong” in the sense that that is usually understood,

namely, there being an error of law (see Gett v Tabet at [261] – [301]). As the

former Justice Heydon noted in a 2009 article, “How Far Can Trial Courts and

Intermediate Appellate Courts Develop the Law?” (2009) 9 Oxford University

Commonwealth Law Journal 1 at n67:

On occasion a decision may be overturned, not because it was wrong when

decided, but because it is thought that new circumstances make a new rule

desirable: Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221

(PC) 241.

(Also see Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 per Branson,

Finkelstein and Gyles JJ at [28]).

175. We have set out above the legally relevant factual differences in the evidence

before the Full Court in Re Jamie as compared with the stated facts here (also

see transcript, 21 September 2017, p 44, l 12 – 28, p 45, l 1 – 8). In short, those

differences relate to the advances in medical science regarding the purpose for

which the treatment is provided, the nature of the treatment, and the risks

involved in undergoing, withholding or delaying treatment.

176. We pause to note that senior counsel for A Gender Agenda Inc. submitted

(at transcript, 21 September 2017, p 64, l 29 – 37) that the bases on which an

earlier decision can be departed from, namely where there is effectively a

factual distinction, and where it can be argued that the earlier decision was

“plainly wrong” are “alternatives”. However, that is not strictly in accordance

with authority, and the first enquiry is always whether there is a factual

difference between the two cases that has relevant legal significance. If there is,

then the earlier decision can be departed from on that basis, and it is

[2017] FamCAFC 258 Reasons Page 36

unnecessary to consider whether the earlier decision was “plainly wrong”. That

also accords with the principle highlighted in Nguyen v Nguyen at 269, that a

finding that a previous decision was “plainly wrong” should be made only with

caution, and in particular only where necessary for determination of the matter

before the court. Clearly, this is not such a case.

177. We confirm that in our view, it is unnecessary, and by reference to the

questions posed in this case stated, inappropriate, for this Court to find that Re

Jamie was “plainly wrong”. The stated question can and should be answered by

considering whether it is appropriate to now depart from Re Jamie in order that

the law effectively reflects the current state of medical knowledge.

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 (Bryant CJ at [136-137, 140(e)]; Finn J at

[186] and Strickland J at [196] Re Jamie)?

178. Again it is necessary to put what was said about Gillick competence in

Re Jamie into context.

179. Bryant CJ relevantly stated:

136. The second and more vexing question posed is who should

determine the question of Gillick competence. Is it the medical

doctors, or is it necessary for an application to the court to be made

for an assessment as to whether the child is competent to give

informed consent to the procedure?

137. With some reluctance I conclude that the nature of the treatment at

stage two requires that the court determine Gillick competence. In

Marion’s case, the majority held that court authorisation was

required first because of the significant risk of making the wrong

decision as to a child’s capacity to consent, and secondly because

the consequences of a wrong decision are particularly grave.

138. It seems harsh to require parents to be subject to the expense of

making application to the court with the attendant expense, stress

and possible delay when the doctors and parents are in agreement

[2017] FamCAFC 258 Reasons Page 37

but I consider myself to be bound by what the High Court said in

Marion’s case.

180. It is said that her Honour has erred because nothing was said in Marion’s case

about who should determine Gillick competence, and certainly it was not

suggested that the court should be tasked with that responsibility.

181. That is entirely correct, but her Honour is not suggesting otherwise in those

paragraphs. What her Honour is saying is that because court authorisation is

required where there is the significant risk of making the wrong decision and

the consequences of a wrong decision are particularly grave, it was also

appropriate that the Court determine Gillick competence. In other words, the

nature of the treatment requires that to be the case (also see Finn J at [185] –

[186]).

182. Now, of course, if as appears to be the case, the nature of the treatment no

longer justifies court authorisation, and the concerns do not apply, then there is

also no longer a basis for the Court to determine Gillick competence.

183. Again, there is no need to consider whether the Full Court in this respect was

“plainly wrong” in order to depart from that aspect of the decision. In other

words, as we have identified, there is a factual difference between the two cases

that has relevant legal significance, or as the Attorney-General would put it,

there has been a change in the factual understanding on which the earlier

decision was based.

184. Thus, the answer to question 2 is “no”.

QUESTIONS 3 – 6

185. Questions 3 and 4 only arise if the answer to question 2 is yes. Given that this

Court’s answer to question 2 is no, it is unnecessary to answer those questions.

186. Questions 5 and 6 are consequential to the answers to questions 3 and 4, and

given it is unnecessary to answer questions 3 and 4, it is also unnecessary to

answer questions 5 and 6.

AINSLIE-WALLACE & RYAN JJ

187. The relevant facts, statutory provisions and the questions in the stated case are

set out in the joint judgment of Thackray, Strickland and Murphy JJ. We agree

with the conclusion reached, that a child who is capable of giving informed

consent (Gillick competent) can authorise stage 2 treatment for Gender

Dysphoria and it is not necessary for a court exercising jurisdiction under the

Family Law Act 1975 (Cth) (“the Act”) to so find. We also agree that where a

child is incapable of giving valid consent, those who have parental

responsibility for the child may authorise treatment; again, without requiring

the court’s imprimatur.

[2017] FamCAFC 258 Reasons Page 38

188. Our reasoning which leads to that conclusion differs to their Honours’ because

we are of the view that the Full Court in Re: Jamie (2013) FLC 93-547 (“Re

Jamie”), having determined that stage 2 treatment was therapeutic, should not

have applied the principles propounded in Secretary, Department of Health and

Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

concerning authorisation of a particularly grave non-therapeutic procedure for a

child who did not and would never have the capacity to consent.

189. Marion’s case was central to the approach adopted in Re Jamie and is important

for what it does and does not say. Marion’s case does not stand for the

proposition that consent to a therapeutic procedure which has grave or

irreversible consequences is outside the scope of parental power or outside the

consent of a competent child. Nor does it erect a freestanding obligation to

obtain a court finding that a child is Gillick competent before his or her consent

can be given effect. In our view the principles that emerge from Marion’s case

when applied to Re Jamie should have resulted in the conclusion that in

relation to stage 2 treatment for Gender Dysphoria the court has no role to play

unless there is a dispute about consent or treatment.

Marion’s case and medical and surgical procedures

190. To give context to the discussion which follows, it was established in Marion’s

case that the welfare jurisdiction conferred on the Family Court encompasses

the substance of the traditional parens patriae jurisdiction. It follows that just

as the parens patriae jurisdiction is very broad, so too is the Family Court’s

welfare jurisdiction, subject to the Constitution, whether overriding or

recognised by the Act (Marion’s case at 294; Minister for Immigration and

Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 390). The

Court’s power is, in fact, broader than that of a parent or guardian as the Court

is able to authorise action, for example non-therapeutic sterilization, which is

beyond the scope of parental authority.

191. Although the jurisdiction is very broad, it is exercised cautiously. In deciding to

control or ignore the parental right the Court should do so only when judicially

satisfied that the welfare of the child requires that the parental right should be

suspended or superseded (Marion’s case at 280).

192. E. (Mrs) v Eve [1986] 2 S.C.R. 388 (“Re Eve”), a decision of the Canadian

Supreme Court, was approved by the High Court in Marion’s case as to the

scope of the parens patriae jurisdiction and makes it clear that the parens

patriae jurisdiction exists for the purpose of taking care of those who are not

able to take care of themselves (Re Eve at 425 – 426; Marion’s case at 258).

The jurisdiction must be examined in accordance with its informing principle;

namely, to do what is necessary for the benefit, and in the interests, of the

person in need of protection (Re Eve at 414, 427). In other words, as explained

in Re Eve, the jurisdiction is informed by the purpose it serves.

[2017] FamCAFC 258 Reasons Page 39

193. Marion’s case was concerned with the administration of non-therapeutic

treatment to prevent pregnancy of a child who would never have the capacity to

consent to the procedure. It came after Re Eve which concluded that as the

parens patriae jurisdiction could only be exercised for the benefit of the

incompetent person and non-therapeutic sterilization could not safely be said to

be in the person’s best interests, the procedure could not be authorised under

that jurisdiction. In Marion’s case the High Court concluded that, in the

exercise of the welfare power, the court could authorise non-therapeutic

sterilization as a special category or case.

194. A hysterectomy was proposed for Marion for the purpose of preventing

pregnancy and menstruation with its psychological and behavioural

consequences. An ovariectomy was proposed to stabilise hormonal fluxes so as

to eliminate behavioural responses and consequential stress. Marion’s parents

applied to the Family Court for an order authorising these surgeries or, in the

alternative, a declaration that they could consent to the procedures. In deciding

that the parents could not consent to the procedures without court authorisation,

the High Court distinguished between “therapeutic” and “non-therapeutic”

procedures and qualified parental power in relation to a decision to authorise a

particularly grave, non-therapeutic procedure for a child who lacked the

capacity to give informed consent.

195. At 249 – 250, Mason CJ, Dawson, Toohey and Gaudron JJ said:

There are, in our opinion, features of a sterilization procedure or, more

accurately, factors involved in a decision to authorize sterilization of

another person which indicate that, in order to ensure the best protection

of the interests of a child, such a decision should not come within the

ordinary scope of parental power to consent to medical treatment. Court

authorisation is necessary and is, in essence, a procedural safeguard. Our

reasons for arriving at this conclusion, however, do not correspond

precisely with any of the judgments considered. We shall, therefore, give

our reasons. But first it is necessary to make clear that, in speaking of

sterilization in this context, we are not referring to sterilization which is

a by-product of surgery appropriately carried out to treat some

malfunction or disease. We hesitate to use the expressions “therapeutic”

and “non-therapeutic”, because of their uncertainty. But it is necessary to

make the distinction, however unclear the dividing line may be.

As a starting point, sterilization requires invasive, irreversible and major

surgery. But so do, for example, an appendectomy and some cosmetic

surgery, both of which, in our opinion, come within the ordinary scope of a

parent to consent to. However, other factors exist which have the combined

effect of marking out the decision to authorize sterilization as a special

case. Court authorization is required, first, because of the significant risk of

making the wrong decision, either as to a child’s present or future capacity

to consent or about what are the best interests of a child who cannot

[2017] FamCAFC 258 Reasons Page 40

consent, and secondly, because the consequences of a wrong decision are

particularly grave.

(Our emphasis)

196. It was accepted that sterilization was a step of last resort, which was a

convenient way of saying that alternative and less invasive procedures had

failed and it was medically certain that no other procedure or treatment would

work. The gravity of the decision was such that, given the child’s lack of

capacity, it was important that the decision to authorise was taken free from the

potentially conflicting interests of those charged with caring for the seriously

disabled child (Marion’s case at 251, 259).

197. If there was any doubt that the constraints on parental power to authorise

medical procedures discussed in Marion’s case were limited to non-therapeutic

procedures which have the features identified in the paragraphs quoted above,

that uncertainty was dispelled in P v P (1994) 181 CLR 583 (“P v P”).

198. In P v P, a parent of a 16 year old girl, who was mentally disabled and lacked

the capacity to consent, applied for an order from the Family Court to authorise

an operation to render the child permanently infertile. The child was resident in

New South Wales where the proposed sterilization would take place. Certain

state laws prohibited the carrying out of the proposed sterilization unless it was

in accordance with an order of the Supreme Court of New South Wales. In the

course of deciding that the state law did not qualify the general welfare

jurisdiction conferred on the Family Court and that the Court had jurisdiction to

make the proposed order, the plurality of Mason CJ, Deane, Toohey and

Gaudron JJ explained the ratio of Marion’s case as follows (at 597):

The distinction which s. 45(2) of the Guardianship Act draws between the

“special treatment” which is “necessary” to save life or prevent serious

damage to health and other “special treatment” is, in the case of a medical

procedure involving sterilization, imprecise and difficult to apply in a

borderline case. Nonetheless, some such distinction has commonly been

seen as of critical importance in cases dealing with the power of parents or

the jurisdiction of courts to authorize such a procedure in the case of an

incapable child. A comparable but more precise (and more stringent)

distinction was drawn by the Court in Secretary, Department of Health and

Community Services v J.W.B. and S.M.B. (Marion’s Case) (38) where the

majority judgment of Mason C.J., Dawson, Toohey and Gaudron JJ. makes

clear that the decision in that case that the authorization of a medical

procedure involving sterilization “falls outside the ordinary scope of

parental powers and therefore outside the scope of the powers, right and

duties of a guardian under … the Family Law Act” (39) is confined to

sterilization which is not “a by-product of surgery appropriately

carried out to treat some malfunction or disease” (40). It is convenient

to refer to sterilization which is not a by-product of such surgery as

“planned sterilization”.

[2017] FamCAFC 258 Reasons Page 41

(Our emphasis)

199. For present purposes, the propositions to be drawn from Marion’s case are:

 Sterilization (which is invasive, irreversible and major surgery) is

medical treatment to which a legally competent person can consent

(234);

 It is primarily the prospect of surgical intervention which attracts the

interests of the law because, without legally effective consent, such

intervention would constitute an offence and a tort (232 – 235);

 In the case of a child, a parent generally has, at common law and under

the Act, power to consent to medical treatment of their child (237);

 At common law, a parent is no longer capable of consenting on the

child’s behalf when the child achieves a sufficient understanding and

intelligence to enable him or her to fully understand what is

proposed (Gillick competent) (237 – 238);

 Where a child is not Gillick competent, the scope of parental power to

consent to medical treatment is wide but does not extend to non-

therapeutic sterilization (239 and 250);

 The reasons why non-therapeutic sterilization of an incapable child is

outside the parental power to consent to medical treatment are:

(a) It requires invasive, irreversible and major surgery;

(b) There is a significant risk of making the wrong decision, either as

to a child’s present or future capacity to consent or about the best

interest of a child who cannot consent; and

(250 – 252); and

 Where a child is not Gillick competent, it is necessary to apply to the

court to authorise non-therapeutic sterilization in accordance with Part

VII of the Act (257).

200. Marion’s case does not:

 Foreclose taking a similar approach to the necessity for authorisation of

analogous non-therapeutic medical or surgical treatment for a child who

lacks legal capacity;

 Address the situation of a Gillick competent child who refuses

permission for medically necessary treatment; or

 Support court intervention in relation to therapeutic procedures to which

a legally competent person can consent.

[2017] FamCAFC 258 Reasons Page 42

201. It follows that factors such as the gravity of the intervention only arise for

consideration if the proposed treatment is non-therapeutic. We thus agree with

the submission of the Royal Children’s Hospital that based on Marion’s case

there is no reason in principle to distinguish between the approaches to be

taken to the forms of therapeutic treatment of Gender Dysphoria.

Re Alex and the approach to Gender Dysphoria

202. Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-

175 (“Re Alex”) was the first case in which the Family Court was asked to

authorise treatment for a child diagnosed with Gender Dysphoria (then known

as Gender Identity Disorder). A finding that Alex was Gillick competent was

not made and the application was brought by the child’s legal guardian who

sought authorisation for stage 1 and stage 2 treatment. The case was conducted

on the basis that stages 1 and 2 comprised a clinical program which should be

viewed as a single regime.

203. In deciding that court authorisation was required for both stages, Nicholson CJ

summarised the effect of Marion’s case as follows:

152. However, two further issues arise from the High Court of

Australia’s decision in Secretary, Department of Health and

Community Services v JWB and SMB (1992) FLC 92-293; (1992)

175 CLR 218 (Marion’s case) which is the relevantly binding

Australian authority:

 whether the child or young person is himself competent to

consent; and

 whether the subject matter of the application is a “special medical

procedure” to which a parent or guardian cannot consent.

153. Marion’s case involved an application for the sterilisation of a 14-

year-old teenager with a severe intellectual disability for the purpose

of “preventing pregnancy and menstruation with its psychological

and behavioural consequences”. The gravamen of the decision was

that if a child or young person cannot consent her/himself to a

medical procedure, parental consent (which for present purposes

may be equated with that of a guardian) is ineffective where the

proposed intervention is:

 invasive, permanent and irreversible; and

 not for the purpose of curing a malfunction or disease.

204. Nicholson CJ was not satisfied that the proposed treatment addressed a

“malfunction” or “disease” and it was thus “not within the jurisdiction of this

Court as explained by the majority in Marion’s case” [195]. However, even

though only stage 2 involved irreversible consequences, because the

[2017] FamCAFC 258 Reasons Page 43

application was presented as “a single package” and because “[t]here are

significant risks attendant to embarking on a process that will alter a child or

young person who presents as physically of one sex in the direction of the

opposite sex”, the scope of parental power to consent to medical treatment was

qualified and court authorisation was required for both procedures [196].

205. Re Alex was generally followed and the question of the approach to gender

dysphoria did not arise for consideration by the Full Court until Re Jamie.

However, over time the expert evidence adduced in the cases reflected

advances in medicine and by 2013 at least one judge was satisfied that stage 1

treatment was therapeutic and that for a child who could not validly consent,

approval for treatment was within the scope of parental responsibility (Re Lucy

(Gender Dysphoria) (2013) 49 Fam LR per Murphy J).

206. Murphy J took the same approach in Re Sam and Terry

(Gender Dysphoria) (2013) 49 Fam LR 417 (“Re Sam and Terry”) and went on

to conclude that stage 2 treatment was also therapeutic. However, his Honour

was of the view that Marion’s case did not exclude qualifying parental power in

relation to procedures that were therapeutic and was satisfied that court

authorisation for stage 2 was required. His Honour said:

99. Yet, I do not consider that the judgments in Marion’s case when

read as a whole intend the assignation to a treatment that it is

“therapeutic” or “non-therapeutic” to be of itself solely

determinative of the question of whether court authorisation is

required. Rather, when read as a whole, the judgments in Marion’s

case suggest a test that consists of assessing together the purpose of

the treatment and its potential consequences.

100. The proposed Stage 2 treatments for each of Terry and Sam carry

significant risks and will also have irreversible effects on each of

them in differing ways. For each, the proposed hormonal treatment

carries an increased risk of breast cancer and may adversely affect

fertility. The treatment will also have irreversible physical effects,

such as, in Terry’s case, the growth of facial hair and deepening of

voice and, in Sam’s case, the redistribution of muscle mass and

body fat. Those side effects are significant in themselves but they

are also significant because they are side effects designed to effect

hormonal changes and overt manifestations consistent with a gender

different to each child’s birth gender.

101. There are, I think, “significant risk[s] of making the wrong

decision, … as to [each child’s] present or future capacity to

consent” and I think that when the consequences are expressed as

being steps on the path to changing gender, the consequences can be

described as grave. As Nicholson CJ put it in Re Alex “[t]here are

significant risks attendant to embarking on a process that will alter a

child or young person who presents as physically of one sex in the

[2017] FamCAFC 258 Reasons Page 44

direction of the opposite sex, even where the Court is not asked to

authorise surgery.”

207. The approach adopted in Re Sam and Terry resonates with that which was

adopted in Re Jamie.

Re Jamie

208. It is important to observe at the outset that the Full Court in Re Jamie

considered itself bound by the principles emerging from the High Court

decision in Marion’s case and it is in the application of Marion’s case that we

consider the decision in Re Jamie to be plainly wrong. In our view the

submissions of the applicant, A Gender Agenda Inc., the Royal Children’s

Hospital, the Attorney-General and the ICL which argue Re Jamie was plainly

wrong should be addressed.

209. We do not agree that the factual differences between Re Jamie and this case

foreclose consideration of whether the former is plainly wrong. The statements

of principle made in Re Jamie attributed to Marion’s case are erroneous. We are

concerned that unless this is made clear, there is a risk that in the future

Re Jamie might be interpreted as providing a basis for court involvement in

therapeutic procedures which on a proper application of Marion’s case come

within the scope of parental authority or the capacity of a legally competent

child. These cases rarely involve a contradictor and the relief sought is almost

always given (facts 46 and 47; [51] and [52] above). As this case demonstrates

the opportunity for appellate consideration rarely arises. The issue should not

remain unresolved.

210. Although it was submitted by the public authority in Re Jamie that the

proposed treatment to be administered in stages 1 and 2 was not to address a

malfunction or disease of the body, and, consistent with Marion’s case was thus

non-therapeutic, the Court found that Gender Identity Disorder is a

psychological condition recognised in both the DSM-IV and DSM-V.

Bryant CJ said:

98. Thus where the question is whether the treatment relates to a disease

or malfunctioning of organs, including psychological or psychiatric

disorders, then, in my view, if the treatment is in response to a

disorder, even a psychological or psychiatric one, it is administered

for therapeutic purposes. …

211. So too at [176] Finn J considered that nothing in Marion’s case restricted the

consideration of therapeutic and non-therapeutic procedures to those addressing

only bodily as opposed to psychological malfunction or disease.

212. This finding having been made, it followed that the proposed treatment was

solely therapeutic, having no non-therapeutic application.

[2017] FamCAFC 258 Reasons Page 45

213. From that decision, it would then follow that if the Court was in fact to apply

the principles in Marion’s case, that in respect of neither stage 1 nor stage 2

treatment was anything required other than the consent of the legally competent

child or, absent capacity, that of the child’s parents.

214. However, the Court distinguished between the nature and consequences of the

treatment to be administered in stages 1 and 2 and concluded that as the effects

of stage 1 treatment are wholly reversible, no court authorisation was required

whereas it was necessary in relation to stage 2. In drawing a distinction

between two aspects of the same therapeutic regime we consider the Court in

Re Jamie to have erred. This is revealed at [137] in the reasons of Bryant CJ

where her Honour said:

With some reluctance I conclude that the nature of the treatment at stage

two requires that the court determine Gillick competence. In Marion’s case,

the majority held that court authorisation was required first because of the

significant risk of making the wrong decision as to a child’s capacity to

consent, and secondly because the consequences of a wrong decision are

particularly grave.

215. See too at [177] where Finn J said:

Brennan J, in his reasons in Marion’s case, was able to explain the

therapeutic – non-therapeutic distinction (including, it should be noted,

particularly for present purposes, in relation to psychiatric disorders) in the

following way (at 269):

It is necessary to define what is meant by therapeutic medical

treatment. I would define treatment (including surgery) as

therapeutic when it is administered for the chief purpose of

preventing, removing or ameliorating a cosmetic deformity, a

pathological condition or a psychiatric disorder, provided the

treatment is appropriate for and proportionate to the purpose for

which it is administered. “Non-therapeutic” medical treatment is

descriptive of treatment which is inappropriate or disproportionate

having regard to the cosmetic deformity, pathological condition or

psychiatric disorder for which the treatment is administered and of

treatment which is administered chiefly for other purposes.

216. Her Honour concluded that the definitions of Brennan J were of assistance in

determining the issues in Re Jamie [178].

217. At [180] her Honour said:

Stage two of the proposed treatment presents greater problems if only

because it is, … “irreversible in nature” … This consideration must, in my

view, remain important, even when it is accepted that the treatment can be

categorised as therapeutic, and in this regard the concept of proportionality

referred to by Brennan J must come into play.

[2017] FamCAFC 258 Reasons Page 46

218. Finn J therefore concluded:

181. In the passage cited above from the majority judgment in Marion’s

case, it was recognised that some forms of medical treatment are

irreversible and yet do not require court authorisation. However,

their Honours proceeded to hold that such authorisation was

required at least for sterilization “because of the significant risk of

making the wrong decision, either as to a child’s present or future

capacity to consent or about what are the best interests of a child

who cannot consent”, and also because of the “particularly grave”

consequences of a wrong decision.

182. Such risks of a wrong decision and the grave consequences of a

wrong decision must similarly exist in relation to stage two of the

proposed treatment in this case when regard is had to the effects of

that treatment as explained by Dessau J in the passages from her

Honour’s reasons earlier set out. Thus, in my view, in a case such as

this, the therapeutic benefits of the treatment would have to be

weighed or balanced against the risks involved and the

consequences which arise out of the treatment being irreversible,

and this would seem to be a task appropriate for a court, given the

nature of the changes that stage two of the treatment would bring

about for the child.

…

186. Nevertheless, I have concluded that at least the question of a child’s

capacity to consent to treatment which has the irreversible effects of

stage two treatment must remain a question for the court. I have

reached this conclusion because of the requirement by the High

Court majority in Marion’s case for court authorisation for

irreversible medical treatment in circumstances 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, as they would be in

this case.

219. Strickland J agreed at [195] and [196] that the therapeutic benefits of stage 2

treatment needed to be balanced against the risk of making a mistake as to the

competence of the child and the consequences attendant on the irreversibility of

the treatment. His Honour also found that court authorisation was required

where the child was not Gillick competent and whether the child was Gillick

competent was a threshold matter which the court must decide.

220. We agree with Felicity Bell in her article “Children with Gender Dysphoria and

the Jurisdiction of the Family Court” (2015) 38(2) University of New South

Wales Law Journal 426 at 441 that this interpretation of Brennan’s J’s

dissenting judgment disregards its broader context, namely his conclusion that

neither parents nor the courts have the power to authorise a non-therapeutic

[2017] FamCAFC 258 Reasons Page 47

medical procedure of a person who lacked capacity to consent. Brennan J

found it was thus necessary to define what is meant by therapeutic medical

treatment and said that treatment is therapeutic when administered “for the

chief purpose of preventing, removing or ameliorating a cosmetic deformity, a

pathological condition or a psychiatric disorder, provided the treatment is

appropriate for and proportionate to the purpose for which it is administered”

(at 269).

221. Brennan J said at 274:

It needs no argument to show that a malignant tumour of the uterus justifies

the performance of an hysterectomy or that multiple cysts on an ovary may

dictate its surgical removal. However, where menstruation produces or is

likely to produce a psychiatric disorder of such severity as to require its

suppression … consideration must be given to the different treatments

reasonably available and appropriate to suppress menstruation and to their

medical advantages and disadvantages in order to ensure that the least

invasive of the treatments is selected. Proportionality and purpose are the

legal factors which determine the therapeutic nature of medical treatment.

Proportionality is determined as a question of medical fact. Purpose is

ascertained by reference to all the circumstances but especially to the

physical or mental condition which the treatment is appropriate to affect.

222. Thus it can be seen that Brennan J defined therapeutic treatment by the twin

considerations of purpose and proportionality. Thus, as Bell writes at 441 “the

question of proportionality goes to determining the initial, fundamental

question of whether the treatment is therapeutic, which is ‘determined as a

question of medical fact’. It is not balanced against undertaking a therapeutic

treatment” (emphasis in original).

223. In Re Jamie it was not suggested that the proposed treatment was not

appropriate or proportional to treat the condition of Gender Identity Disorder or

that it was to be administered for a purpose other than the identified treatment

of the disorder. There could thus be no argument that both stages of treatment

were therapeutic in the sense defined by Brennan J.

224. Despite finding the treatment to be administered in both stages to be

therapeutic in nature, the Court distinguished between the two not by reference

to whether the treatment was therapeutic or not but by reference to the

consequences of the administration of that treatment; that is, that it was

irreversible. As counsel for the Royal Children’s Hospital submitted, to do so is

to confuse the nature, form and characteristics of therapeutic treatment with the

consequences of that treatment and to do so is not giving effect to the

determination in Marion’s case.

225. In our opinion, by eliding the outcome of therapeutic treatment with the risks

and consequences identified in Marion’s case which removed non-therapeutic

sterilization from the realm of parental consent, we are of the view that the Full

[2017] FamCAFC 258 Reasons Page 48

Court erred in its application of Marion’s case and thus the decision should not

be followed.

Conclusion

226. We therefore answer the questions in the case stated by Watts J as follows:

Question 1: Does the Full Court confirm its decision in Re Jamie (2013) FLC

93-547 to the effect that Stage 2 treatment of a child for the

condition of Gender Dysphoria in Adolescents and Adults in the

Diagnostic and Statistical Manual of Mental Disorders (Fifth

Edition) DSM-5 (the treatment), requires the court’s authorisation

pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”),

unless the child was Gillick competent to give informed consent?

Answer: No.

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 (Bryant CJ at [136-137,

140(e)]; Finn J at [186] and Strickland J at [196] Re Jamie)?

Answer: No.

Question 3: If the answer to question 2 is yes, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, should any

application for a declaration that the child is Gillick competent, be

dismissed?

Answer: Unnecessary to answer.

Question 4: In the alternative, if the answer to question 2 is yes, if a finding is

made that the child was Gillick competent to give informed

consent, should any application for an order authorising the

administration of the treatment, be dismissed?

[2017] FamCAFC 258 Reasons Page 49

Answer: Unnecessary to answer.

Question 5: If the answer to question 3 is no, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, is the jurisdiction and

power of the court enlivened, pursuant to s 67ZC of the Act, to

make a declaration that the child was Gillick competent to give

informed consent to the treatment?

Answer: Unnecessary to answer.

Question 6: If the answer to question 4 is no, given statements made by the

Full Court in Re Jamie, if a finding is made that the child was

Gillick competent to give informed consent, is the jurisdiction and

power of the court enlivened, pursuant to s 67ZC of the Act, to

make an order authorising the administration of the treatment?

Answer: Unnecessary to answer.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a

true copy of the reasons for judgment of the Honourable Full Court (Thackray,

Strickland, Ainslie-Wallace, Ryan & Murphy JJ) delivered on 30 November

2017.

Associate: A. Becker

Date: 30 November 2017