Re: Alex (2004) FLC 93-175 - Analysis, Decision, And Applicability

Background

The present case for discussion is Re: Alex (2004) FLC 93-175. This particular is a critical case which came before the Family Court of Australia with respect to allowing the treatment of a young individual who was initially female but wished to be male.

The present application was brought in by the legal guardian of Alex before the court in the year 2003 when Alex was 13 years old. This application was with respect to treatment of the medical condition of gender dysphoria faced by Alex. There were two stages of the treatment. He was to be administered with progestogen and oestrogen till he was 16 years old. This would suppress his menses. After he attained 16 years he would be administered with luteinising hormone releasing hormone and testosterone. This would initiate the process of becoming a male. There would be no surgical intervention till he attained 18 years. The respondents in this case were the mother and aunt of Alex. The case was intervened by the Human Rights and Equal Opportunities Commission who made submissions on the basis of applicable human rights principles.

Herein there is mention of only one judge who presided over the case i.e. Chief Justice Nicholson. On the basis of the evidence, he was convinced that the proposed treatment was in favour of Alex and would serve the best purposes. The application was made on the basis of section 67ZC of the Family Law Act 1975 (Cth). The judge relied on the decisions made by the High Court of Australia in the case of Gillick and Marion. On the basis of these cases he determined the fact whether Alex was capable to understand the consequences of the proposed treatment.

It seems that from the present case various issues had come before the judge. Taking consideration of all the factors it indicated that the proposed treatment would be in favour of Alex. The judge believed that the proposed treatment required the authorisation of the Family Court since it involved significant risks. Thus it can be concluded that the judge had rightly taken the correct stance within the case. There seems to be no error of judgement.

3) In the present question it is necessary to determine the applicability of the case of Alex in the current context. From the same research paper, a case has identified which has discussed the present case and is considered a landmark case. This is the case of Re: Jamie (2013) FamCAFC 110. This is the case where the Family Court mad an analysis of the previous cases of Marion and Alex. Justice Bryant, one of the three judges presiding over the case took cognizance of the Alex case. She decided that the propositions of the Alex case could be followed rather than the outcome of the case. The decision given in the case of Alex was widely criticised. It was said that the expert opinion given the instant case was limited to opinion based on psychiatry. The judge in this case had wrongly interpreted the case of Gillick and Marion to determine that Alex lacked the capacity to give consent to the proposed treatment.

Decision

However thinking about a hypothetical situation of approaching the Family Court involving a single judge it is necessary to analyse whether the Alex case will hold ground or not. The decision given by Judge Nicholson was based on number of considerations. He had relied on pertinent cases and legal sources. It is wrong to say that his analysis is flawed. In the capacity of a single judge he had used his reasonable mind and gave his decision on rational judgement. Thus it can be concluded that the decision carries weight and rationality.

4) There are many other cases which deal with aspect of treatment of children with gender dysphoria. To get access to these cases the Austlii website was accessed through Google Australia. Then the ‘databases’ tab was accessed. Within the database section, the key words used were children and gender dysphoria. A journal article was derived which was titled as ‘Children with Gender Dysphoria and the Jurisdiction of the Family Court’. The article was written by Felicity Bell in the year 2015. The article was published by the law journal of University of New South Wales. By going through the journal two cases were identified which dealt with the similar subject matter as that of the Alex case. One is the case of Secretary, Department of Health and Community Services v JWB (1992) HCA 15. This case is more popularly known as the Marion’s Case. Another case is Re: Lucy (2013) FamCA 518. The citation to the cases was given in the bibliography of the journal article.

5) State legislation- The most relevant state legislation of New South Wales which applies limit on the decision of the parents or the guardian with respect to decisions regarding special treatment of the child is the Minors (Property and Contracts) Act 1970 (NSW). The relevant section which speaks about the restriction is section 49 (2) of the Act. The present act was amended as on 8^th of July, 2015. It was renamed as Minor (Property and Contracts) Act 1970 (Act 60 of 1970). The latest amendment is the number 15. This present Act was searched from an article named as ‘Citizen child: Australian law and children’s rights’. This article was published in the year 1996 by the Australian Institute of Family Studies. The information about the amendments was derived from the official website of Austlii. From the official site it could be understood that the latest amendment started functioning from 8^th July 2015.

Analysis

Commonwealth legislation- The identified Commonwealth legislation which enshrines power to the court with respect to welfare of the child that includes medical treatment is the Family Law Act 1975. The relevant section that covers this aspect is section 79 of the Act. The present Act was recently amended in the year 2011 and it came into force on 7^th December 2011. The act has been renamed as Family Law Legislation Amendment (Family Violence and Other Measures) Act, 2011. The latest amendment is number 189 of 2011. The original Act was traced from a journal article which was traced from the official website of Austlii. The journal is named as ‘Proceedings in relation to children in the post cross-vesting era’. The article has been written by Dorothy Kovacs in the year 2000. The information about the latest amendment was derived from the official website of the Federal Register of Legislation.

6) When speaking about section 49 (2) of the Minors (Property and Contracts) Act 1970 it was applicable in the case of Gillick v West Norfolk and Wisbech AHA (1986) AC 112. This particular case was found from the official website of the Australian Law Reform Commission. The citation of the case was found in the same website. When speaking about section 79 of Family Law Act 1975 the most relevant case is Secretary, Department of Health and Community Services v JWB (1992) HCA 15. This is more commonly known as the case of Marion. This particular case was found in the same website.

7) There is a common law jurisdiction offering power to courts regarding imposing decisions on the guardians and parents of the children. This is known as parens patriae jurisdiction. This is a Latin term. It has its base in the English common law. The term refers to a doctrine which provides in built power and authority to the government including the courts to safeguard the individuals who lawfully are not able to act on their own. This definition has been found from a free legal dictionary website. The term refers to the state’s guardianship over individuals who are disabled especially children under the control of their parents.

Robert Wang,

12/B, Blanchett Avenue,

NSW-290045

Sub- professional advice

Dear Mr Wang,

I have made reasonable amount of research on the instant subject matter. Gender dysphoria is a common symptom which occurs among young people especially teenagers. There are various cases that have been decided which have dealt with the current issue. The first issue regarding which advice is required is whether Ming at the age of 14 can consent regarding her own treatment. As per the Minors (Property and Contracts) Act 1970 (NSW), Ming is entitled to give her consent to the medical or dental treatment that she is supposed to undergo. Her consent will also act as an action for the other party in case there is an instance of assault or battery during her treatment. As per the act her parents can also provide consent with respect to her treatment.

You have to prove before the court that you are the valid guardian of Ming before the court. If you are unable to prove that, the court will exercise its own discretion. In the case of Re: Gillick (1986) AC 112 it is said that the power of the parents reduces as the child gets more competent. The right to interfere and consent with respect to the parents go away once the child attains the age of 16. In the present case however, Ming is still 14 years. Her parents have the right to interfere in her treatment as most of the legislations are not in favour of the age in which Ming is taking her decisions. The courts also have a general supervisory role to look after the interests of Ming. There is a common law jurisdiction known as parens patriae jurisdiction which vests such powers in the court.

Regards,

Solicitor

Bell, Felicity --- "Children With Gender Dysphoria And The Jurisdiction Of The Family Court" [2015] Unswlawjl 15; (2015) 38(2) University Of New South Wales Law Journal 426 (2017) Austlii.edu.au https://www.austlii.edu.au/au/journals/UNSWLawJl/2015/15.html#fn20

Bell, Felicity, "Children With Gender Dysphoria And The Jurisdiction Of The Family Court" (2015) 38 UNSWLawJ

Bowles, Kirraley, Age Of Consent To Medical Treatment (2017) Findlaw.com.au <https://www.findlaw.com.au/articles/432/age-of-consent-to-medical-treatment.aspx>

Capacity And Health Information (2017) Alrc.gov.au https://www.alrc.gov.au/publications/68.%20Decision%20Making%20by%20and%20for%20Individuals%20Under%20the%20Age%20of%2018/capacity-and-health-info

Family Law Legislation Amendment (Family Violence And Other Measures) Act 2011 (2017) Legislation.gov.au https://www.legislation.gov.au/Details/C2011A00189

Jantera-Jareborg, Maarit, The Child's Interests In Conflict: The Intersections Between Society, Family, Faith And Culture 2016 (Intersentia Ltd, 1st ed, 2016)

Kovacs, Dorothy, PROCEEDINGS IN RELATION TO CHILDREN IN THE POST CROSS-VESTING ERA (2017) www.austlii.edu.au https://www.austlii.edu.au/au/journals/FedLawRw/2000/5.pdf

Minors (Property And Contracts) Act 1970 No 60 (2015) Legislation.nsw.gov.au https://www.legislation.nsw.gov.au/#/view/act/1970/60

Parens Patriae (2017) TheFreeDictionary.com https://legal-dictionary.thefreedictionary.com/parens+patriae

Skene, Loane, Medical Procedures For Children (2017) aifs.gov.au https://aifs.gov.au/publications/citizen-child-australian-law-and-childrens-rights/8-medical-procedures-children

Smith, Malcolm K and Ben Mathews, "Treatment For Gender Dysphoria In Children: The New Legal, Ethical And Clinical Landscape" (2015) 202 The Medical Journal of Australia

Sperry, Len, Mental Health And Mental Disorders: An Encyclopaedia Of Conditions, Treatments And Well-Being (ABC-CLIO, 1st ed, 2015)

Strickland, Steven, To Treat Or Not To Treat: Legal Responses To Transgender Young People (2014) Familycourt.gov.au https://www.familycourt.gov.au/wps/wcm/connect/af23685e-3f1e-4295-a8b4-d0458cd96ec0/Speech-Strickland-Transgender+Young.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-af23685e-3f1e-4295-a8b4-d0458cd96ec0-lyjXAGg