FAMILY LAW - JURISDICTION FAMILY LAW - MEDICAL PROCEDURES - Condition of transsexualism - Treatment of condition of transsexualism - Parental responsibility of parents to authorise treatment of transsexualism - Special medical procedure

e: Bernadette [2010] FamCA 94 (19 January 2010)

Last Updated: 1 March 2010

FAMILY COURT OF AUSTRALIA

RE: BERNADETTE (SPECIAL MEDICAL PROCEDURE)

[ 2010] FamCA 94

FAMILY LAW - JURISDICTION FAMILY LAW - MEDICAL PROCEDURES - Condition of transsexualism - Treatment of condition of transsexualism - Parental responsibility of parents to authorise treatment of transsexualism - Special medical procedure

Re: Alex [2004] FamCA 297; (2004) FLC 93-175 Re: Tyrone (2002) NSW Court of Appeal 414 Briginshaw [1938] HCA 34; (2002) 60 CLR 336 SMB & JWB Secretary Department of Health & Community Services [1992] HCA 15; (1992) 175 CLR 218

Family Law Act 1975 (Cth) Family Law Rules 2004 Marriage Act 1961 (Cth)

APPLICANTS:

The Father and The Mother

INTERVENOR

Director-General, Department of Human Services

INTERVENOR

Human Rights and Equal Opportunity Commission

INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW

FILE NUMBER OMITTED

DATE DELIVERED:

19 January 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

5 - 7 November 2007

REPRESENTATION

NAMES OF REPRESENTATIVES OMITTED

ORDERS

1. That orders 1, 2, 3 and 4 made on 7 November 2007, herein set out as follows, be and are hereby made on a final basis:
   • (1) That the child BERNADETTE the subject child born on ... January 1992 be entitled and permitted to be administered the following treatment for the condition of transsexualism:
     • (a) Hormonal treatment known as phase one treatment to block the onset of puberty; and
     • (b) Hormonal treatment known as phase two treatment.
   • (2) Such treatment is to commence on or after ... January 2008.
   • (3) That in the event of a proposed change in the child’s attending physicians the applicant father is to inform the Independent Children’s Lawyer, the Department of Community Services and the Human Right and Equal Opportunities Commission of such changes within seven days.
   • (4) That the subject child continue to receive counselling by psychiatrists Dr X and Dr Y at such frequency as is recommended by each of those psychiatrists.
2. That all outstanding applications and cross-applications be and are hereby discharged.
3. That all issues be removed from the Active Pending Cases List.
4. That all subpoena material be returned after the expiration of 56 days.

IT IS NOTED that publication of this judgment under the pseudonym Re Bernadette (Special Medical Procedure) is approved pursuant to s 121(9)(g) of theFamily Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER OMITTED

THE FATHER AND THE MOTHER

Applicant Parents

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Intervenor

And

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Intervenor

And

LEGAL AID COMMISSION OF NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. At the outset of this judgment I must examine with some care what it is that the applicants seek to have me do in this case. On 7 November 2007 an order was made on a final basis enabling Bernadette to receive hormone treatment, known as phase one treatment, to block the onset of puberty and hormone treatment, known as phase two treatment, to commence after ...January 2008.
2. Thus that which required determination were a number of questions posed by the applicants and to a lesser extent the other parties to the proceedings.
3. The applicant’s solicitor provided a Minute of Order as at 5 November 2007. That minute was in the following terms:
   1. That, whether by way of a separate decision pursuant to rule 10.13 of the Family Law Rules 2004 or by way of a stated case pursuant to section 94A of the Family Law Act 1975, there be a determination as to the following questions of law:

1.1 Does the parent of a child have the authority (whether as an incidence of parental responsibility pursuant to the Family Law Act 1975 and/or otherwise) to lawfully authorise the treatment of the said child in relation to the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria);

1.2 If the answer to either 1.1 is “No”, does the parent have the authority to lawfully authorise treatment for the child to block the onset of the child’s puberty (“Phase 1 Treatment”) in the course of the treatment of the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria) without an Order of a Court;

1.3 Is:

1.3.1 Phase 1 Treatment for the condition of transsexualism (also called gender identify disorder, gender dysphoria and gender identity dysphoria) and/or

1.3.2 Hormonal treatment to induce the secondary sexual characteristics of the child’s affirmed sex (“Phase 2 Treatment”) for the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria) a “special medical procedure” as identified in SMB and JWB; Secretary, Department of Health and Community Services [sic] (Re Marion) [1992] HCA 15; (1992) 175 CLR 218 (hereinafter referred to as “Marion’s case”) and for the purpose of Division 4.2.3 of the Family Law Act and Family Law rules 2004.

1.4 Is:

1.4.1 Phase 1 Treatment for the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria) and/or

1.4.2 Phase 2 Treatment for the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria)

“special medical treatment” within the meaning of the section 175(5) Children and Young Persons (Care and Protection Act 1998 (NSW).

1.5 Does the Family Court of Australia have the jurisdiction pursuant to the Family Law Act 1975 or otherwise to make and Order:

1.5.1 to permit and authorise the treatment of a child in relation to the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria);

1.5.2 to permit and authorise the parent of a child to lawfully authorise the treatment of the said child in relation to the condition of transexualism (also called gender identity disorder, gender dysphoria and gender identity dysphoria);

that the determination of the Form 1 application filed on 27 June 2005 be adjourned pending determination as sought by Order 1.

4. At the conclusion of the hearing, as has already been indicated, orders were made for the administration of phases 1 and 2 treatment. The parties then filed written submissions as to the final disposition of the matter. The solicitor for the applicants in the her extensive, highly detailed, and effective submissions said this at paragraph 6 of her submissions:
   6. As this Honourable court has already given approval for [Bernadette] to receive Phase 1 and Phase 2 medical treatment for adolescent transsexualism (“medical treatment for adolescent transsexualism”), the applicant parents contend that they need only now seek a determination of the following question of law (whether by way of a separate decision pursuant to rule 10.13 of the Family Law Rules 2004 or otherwise, or by way of a stated cause pursuant to section 94A of the Family Law Act:

“6.1 Does the parent of an adolescent minor and/or such minor (provided that such minor has a sufficient understanding and intelligence to enable him or her to understand fully what is proposed) have the authority to lawfully authorise medical treatment of that adolescent minor to arrest the onset of the minor’s puberty (“Phase 1 Treatment”) in the course of the medical treatment of the condition of transsexualism (also called gender identity disorder) without an Order of a Court?

6.2 In Phase 1 treatment for the condition of transsexualism (also called gender identity disorder) “special medical treatment” as defined in section 175 of theChildren and Young Persons (Care and Protection) Act 1998 (NSW)?

6.3 Does the parent of an adolescent minor and/or such minor (provided that the adolescent minor has a sufficient understanding and intelligence to enable him or her to understand fully what is proposed) have the authority to lawfully authorise hormonal medical treatment for the adolescent minor to induce the secondary sexual characteristics of the adolescent minor’s affirmed sex (Phase 2 Treatment”) in the course of the medical treatment of the condition of transsexualism (also called gender identity disorder) without an Order of a Court?

6.4 Is hormonal medical treatment to induce the secondary sexual characteristics of the adolescent minor’s affirmed sex (“Phase 2 Treatment”) for the condition of transsexualism (also called gender identity disorder) “special medical treatment” as defined in section 175 of the Children and Young Persons (Care and Protection)Act 1998 (NSW)?

5. It is argued by the solicitor for the applicants in her submissions in reply that the orders of 7 November were in fact interim orders. On the face of them, that does not appear to be so. The issue of whether they are interim or not was not the subject of any submission by the Independent Children’s Lawyer, The Director-General or the Human Rights & Equal Opportunity Commission.
6. The Director-General’s submissions at paragraph 15, set out what it is submitted by the Director-General are indeed the proper questions arising for determination, together with the answers to the questions as posed suggested by the Director-General.

(a) Do the parents of Bernadette have authority to provide lawful consent to medical treatment, involving the administration of puberty-suppressing drugs, to arrest eh onset of Bernadette’s puberty (“Phase 1 Treatment”) in the course of the medical treatment of the condition of transsexualism (also called Gender Identity Disorder) without an order of a court?

(The Director-General submits that this question be answered “No”).

(b) Do the parents of Bernadette have authority to provide lawful consent to medical treatment, involving the administration of puberty-suppressing drugs, in conjunction with female hormones, to induce in Bernadette female secondary sexual characteristics (“Phase 2 Treatment”).

(The Director-General submits that this question be answered “No”).

7. Clearly the Director-General seeks to limit the findings and answers to questions having specific application to Bernadette and her parents, and thus not dealing with the matter as one of general application.
8. In written submissions of the Equal Rights and Opportunity Commission at paragraph 1.6 identifies questions that the Commission indicate need be answered to determine questions raised in this matter by reference to an earlier document of the applicants. The questions they say need be answered are in these terms:
   • (a) Is transsexualism a condition that requires treatment (as so referred to by the majority as ‘malfunction or disease’) and, if so,

(b) Is the proposed treatment in this case appropriately carried out to treat the condition?

9. An unsuccessful attempt was made to settle terms of a stated case. Had that attempt proved successful, the matter would then have been referred to the Full Court of the Family Court pursuant to Section 94A(i) of the Family Law Act for the Full Court to “hear and determine the question”. However the matter did not proceed in that fashion and now remains for me to make a determination as to the issues I have sought to identify as being properly before me.
10. It is put by the applicant that it is not challenged that I can deal with the issues so raised by virtue of Part 10.3 of the Family Law Rules. I am satisfied that I can proceed in that fashion and propose to do so.
11. An area of significance, if not central importance to this case, is the contention of the applicants that the decision of Nicholson CJ as he then was in Re: Alex[1] was incorrectly decided. It is the applicant’s assertion that his Honour did not have the benefit of evidence (and submissions) such as are available to me. It is put, as I understand the submission, that had his Honour had the benefit of material with which I am blessed then his Honour’s judgment may well have been different, and the necessity for proceedings of this type that I am hearing may have been avoided, and may in future be avoided.
12. It is the contention of the Director-General that it would not be appropriate to answer questions which purport to have a general application. The Director-General makes clear in written submission that it is his contention that the determinations sought in the applicant’s submissions are not appropriately before me.
13. Further, the Director-General points out and it is clear that this is agreed to in the submissions of the Commission and the Independent Children’s Lawyer that the issue of the capacity of an adolescent minor to consent to treatment was not an issue in the hearing and accordingly no evidence or cross-examination to this point was put before me in the hearing. I am satisfied that this is so.
14. The Human Rights & Equal Opportunity Commission in its submissions makes particular reference to the parent’s amended application in a case of 8 August 2006 and takes from it this question of law:-

Does the parent of a child have the authority (whether as an incidence of parental responsibility pursuant to the Family Law Act 1975 (Cth) and/or otherwise) to lawfully authorise the treatment of the said child in relation to the condition of transsexualism (also called gender identity disorder, gender dysphoria and gender identify dysphoria) without an order of a Court.

15. The submissions of the Human rights and Equal Opportunity Commission do not specifically deal with the questions posed and identified in the applicant’s submissions beyond this point.
16. The contention of the Commission is that I would need to determine the following issues to be able to determine the question of parental authority. The Commission contends that the two questions for determination are:

(a) Is transsexualism a condition that request treatment (as so referred to by the majority as ‘malfunction or disease’) and, if so,

(b) Is the proposed treatment in this case appropriately carried out to treat the condition?

(See Para 1.6 (a) and (b) of the Commission’s submissions)

17. It is the contention of the Commission that if the answer to both questions is “Yes”, then a decision by the parents would normally be within the scope of parental authority.
18. The Independent Children’s Lawyer adopts, at least in part, the submissions of the Director-General as to the issues to be determined. The Independent Children’s Lawyer identifies the issues as follows:
    • 11.1 Does the parent of a child [Do the parents of [Bernadette]] have the authority to lawfully authorise the treatment of the said child in relation to the treatment of transsexualism without an order of a court;
    • 11.2 If the answer is “no”, does the parent [do the parents of [Bernadette]] have the authority to lawfully authorise treatment for the child to block the onset of the child’s puberty (stage 1 treatment) in the course of treatment of the condition of transsexualism without an order of a court;
    • 11.3 Is:

(i) Stage 1 treatment for the condition of transsexualism and/or

(ii) Hormonal treatment to induce the secondary sexual characteristics of the child’s affirmed sex (stage 2 treatment) for the condition of transsexualism a “special medical procedure” as identified in Re Marion (No 2) and for the purpose of Division 4.2.3 of the Family Law Act and Family Law Rules 2004.

11.4 Is:

• (i) Stage 1 treatment for the condition of transsexualism and/or

(ii) Stage 2 treatment for the condition of transsexualism “special medical treatment within the meaning of section 175 (5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

11.5 Does the Family Court of Australia have the jurisdiction pursuant to the Family Law Act 1975 or otherwise to make an order:

• (i) To permit and authorise the treatment of a child [Bernadette] in relation to the condition of transsexualism;

(ii) to permit and authorise the parent of a child [the parents of [Bernadette]] to lawfully authorise the treatment of the said child in relation to the condition of transsexualism.

19. Prior to the commencement of the hearing there had been some concern as to jurisdiction because the child’s parents were not at that time married. I am satisfied that the parties married each other in October 2007. I am satisfied that the ceremony of marriage undertaken by the parents in October 2007 is a valid marriage in Australia[1].
20. As a result of that marriage and by virtue of Section 89 of the Marriage Act the subject child is a legitimate child of her parents as from birth. Further pursuant to Section 60F(i)(b) of the Family Law Act, I am satisfied the child is the child of the marriage of the applicants. Therefore there can be no impediment to jurisdiction.

BRIEF HISTORY

21. A brief history of this matter is as follows:
22. The mother was born in 1962. She is the biological mother of the subject child.
23. The father was born in 1965. He is the biological father of the subject child.
24. The parties lived together from September 1988 continuously. They married in October 2007 in the United States of America. I am satisfied that is a marriage recognised as valid as I have already found.
25. The parties’ oldest child was born in January 1992. He was assigned to the male sex. He was named ... and his birth was registered accordingly.
26. The applicants have two other children; a son born in May 1996 and a daughter born in February 1999.
27. The subject child was treated as a male child by her family members.
28. From the age of about three the subject child commenced showing female behaviour, preferences and traits. The child has for some time continuously identified herself as a female.
29. She has expressed a wish to live as a female.
30. The subject child’s self identification as a female became more pronounced as she matured. She commenced to use the Christian name “[Bernadette]” on a private basis at some stage prior to 14 August 2004. On that date she commenced to live as a female.
31. Bernadette experienced difficulties at her school as a result of her transsexualism.
32. The child and her parents commenced to see Dr X, a child and adolescent psychiatrist in about 1998. They have continued to consult Dr X on a regular basis since that time.
33. On 27 May 2004, in a report prepared by her, Dr X asserted that Bernadette met the DSM IV criteria for the diagnosis of Gender Identity Disorder (Childhood) 382.6. She further stated that Bernadette exhibited clear features of childhood transsexualism.
34. In October 2004, following meetings between the parents Dr X, New South Wales Education and G High School, Bernadette commenced in term four of year seven at that school. She was enrolled and known as Bernadette N. Bernadette has been attending the school since that time.
35. Since 26 October 2004, Bernadette has lived as a female in her family and private situation and on a public basis. 

THE AFFIDAVIT MATERIAL

36. The affidavit material before me consisted of affidavits sworn by :

(a) The father sworn 22 June 2007;

(b) The mother sworn 22 June 2007;

(c) Dr X of 7 August 2007 together with her report of 23 October 2007;

(d) Professor Z sworn 20 August 2007;

(e) Associate Professor H sworn 6 August 2007;

(f) Professor D sworn 2 November 2007;

(g) Dr K sworn 5 November 2007;

(h) Dr Y sworn 6 August 2007;

(i) Professor W sworn 5 November 2007;

(j) Professor T sworn 5 November 2007.

In addition I have received a large body of material from the applicants’ solicitor. I set out hereunder a list of those documents:

1. Delemarre and Cohen-Kettenis, Clinical Management of Gender Identity Disorder In Adolescents: A Protocol on Psychological And Paediatric Endocrinology Aspects; European Journal of Endocrinology (2006) 155 S131-S137;
2. Smith, Goozen and Cohen-Kettenis, Adolescents With Gender Identity Disorder Who Were Accepted Or Rejected For Sex Reassignment Surgery A Prospective Follow-Up Study, J.AM.Acad. Child Adolesc. Psychiatry, 40:4, April 2001;
3. Cohen-Kettenis and Goozen, Pubertal Delay As An Aid In Diagnosis And Treatment Of A Transsexual Adolescent European Child & Adolescent Psychiatry, 7:246-248 (1998);
4. Kulper and Cohen-Kettenis, Sex Reassignment Surgery: A Study of 141 Dutch Transsexuals Archives of Sexual Behaviour, Vol 17, No. 5, 1988;
5. Cohen-Kettenis, Goozen & Others, Sex Reassignment of Adolescent Transsexuals: A Follow-Up Study J.AM ACAD. Child Adolesc. Psychiatry, 36.2, February 1997;
6. Diamond and Govier, Abstract: Dichotic Listening Among Transsexuals: Preliminary Evidence for Organizational Brain Differences International Academy for Sex Research (ISAR) Annual Meeting 8-11 August 2007 Vancouver, British Columbia, Canada;
7. Diamond, Biased-Interaction Theory of Psychosexual Development: “How Does One Know if One is Male or Female? Sex Roles (2006) 55:589-600
8. Beh and Diamond, Ethical Concerns Related to Treating Gender Non-Conformity in Childhood and Adolescence: Lessons From the Family Court Of Australia Case School of Law, Health Matrix: Journal of Law-Medicine, Volume 15, Number 2, Summer 2005;
9. Diamond, Paediatric Management of Ambiguous And Traumatized Genitalia, The Journal of Urology Vol 162, 1021-1028, Sept 1999;
10. Diamond and Beh, The Right To Be Wrong – Sex and Gender Decisions: http://hawaii.edu/PCSS/online_artcls/TheRightToBeWrong.htm;
11. Professor L.J.G. Gooren, Closing Speech to The Council of Europe: 23rd Colloquy on European Law: Transsexualism, Medicine and Law April 14-16, 1993;
12. Nicholson, Harrison and Sandor, The Role Of The Family Court In Medical Procedure Cases, Australian Journal of Human rights, Volume 2, Number 2;
13. Gender Identity Research & Education Society (GIRES), 2006 Update and Review Of International Issues and Developments In The Treatment of Adolescent Transsexualism hhtp://www.gires.org.uk/:
14. GIRES et al., Atypical Gender Development – A Review International Journal of Transgenderism, 9(1) p29-44 (206);
15. Tanner, Stages of Adolescent Physical Growth J Pediatr 107 (3): 317 and various;
16. United Kingdom Parliamentary Forum on Transsexualism (Lynne Jones MP, Chair), Guidelines For Health Organisations Commissioning Treatment Services For Individuals Experiencing Gender Dysphoria And Transsexualism 6 April 2005;
17. Spack, Transgenderism Lahy Clinical Medical Ethics, Lahey Clinic Foundation Inc (Fall 2005)

http://www.lahey.org/NewsPubs/Publications/Ethics/JournalFall2005/

18. The Harry Benjamin Standards of Care For Gender Identity Disorders, Sixth Version World Professional Association for Transgender Health Inc. (WPATH), February 2001, http://www.wpath.org/;
19. Wallbank, Re Kevin in Perspective 9 Deakin L. Rev. 461, 468-73 (2004)
37. There were exhibited before me photographs of the subject child and further reports of Professor Z together with a photocopy of the child’s passport showing her as female. 

THE HEARING BEFORE ME

38. In the hearing before me I heard evidence from the following:

(a) Dr X;

(b) The father;

(c) Professor Z;

(d) Associate Professor H;

(e) Professor D;

(f) Professor K

39. The Dutch professors Doctors W and T were not required for cross examination in respect of their affidavits.
40. I do not propose to set out in great detail the evidence of the witnesses who were called. Each of the experts was indeed a preeminent and highly qualified person in his or her field.
41. The evidence that they gave in written or oral form was given with the full weight of their expertise and in an endeavour to assist the court in reaching a determination.
42. Dr X’s evidence was that she had first been consulted when Bernadette was seven. She saw the child every six months initially and in June 2005 it became six weekly and it remains so. A diagnosis was made of gender identify disorder by application of DSM IV criteria. She said the child was making strong statements about her wishes and that an early onset of oberservable criteria makes diagnosis less controversial and more clear cut.
43. The doctor said that she could not say with 100% accuracy the cause of the disorder. She described a spectrum of brain sex differentiation. She said that she had reached a fairly confident view about the child following a long history and early onset. She said she had been a constant visitor in the child’s life. She considered that is was highly unlikely that Bernadette would grow out of her current wish to alter her birth sex.
44. The doctor indicated that a clinician needed to exclude the fact that the child was experiencing unresolved issues and said that in this case she has excluded this situation. She said that if the child did not receive the next stage of treatment she was likely to self harm. She said that if the stage 1 treatment were discontinued she would expect a full recovery of fertility but not if stage 2 had been implemented. She said the child was age appropriately aware and had discussed surgery but not until at least the age of 18 years. The child has also met the expert team in Melbourne and had discussions with them. She said that the commencement of stage 2 was indicated and there was no alternative treatment available.
45. To the Independent Children’s Lawyer she indicated that there were some differences between what might be described as the “British approach” and the “American and Dutch approach”. She said that most Australian practitioners followed the British, more cautious, approach. However, the Dutch approach was not mutually exclusive. She said that having read the report of Professor T she was not caused to change her view. She did not know about the issue of extraction of sperm. She said, however, that if sperm were to be harvested, Bernadette would need to undergo puberty as a male. She said that in a general sense, Stage 1 could be seen as a part of a diagnostic stage.
46. She again repeated that in the absence of appropriate treatment the child may self harm. Additionally she said that children may endeavour to obtain drugs themselves, for the purpose of self medication. For example it was not difficult to obtain oestrogen in the form of a contraceptive pill. They may then take excessive doses without proper monitoring which could lead to kidney and liver damage and the cause of blood clots.
47. The father gave evidence of his wish for the procedure to proceed and the difficulties that his daughter had undergone prior to commencing to live as a female.
48. Professor Z gave evidence by telephone. He described the difference between the British and Dutch schools (as he described them) as the British school not blocking until the completion of puberty. He said however, that to intervene earlier is more humane. He said he believed that Bernadette should proceed to stage 2 on attaining her 16th birthday. He spoke of some of the difficulties of a male to female change after puberty as the requirement to remove facial hair and the cost of some $10,000 for electrolysis over a period of five years for complete removal of hair.
49. He said that in phase 1 the testes were arrested not shrunken.
50. He said that phase 2 would probably cause a reduction in the size of the testes.
51. He said that if sperm were to be harvested it would need a removal from the drug for some years. The recovery of fertility could be enhanced by the administration of drugs but he would not adopt this course. He said it was not possible for Bernadette to say there would be no change in orientation and that diagnosis of adolescence was difficult. He again spoke of the British approach that changes in puberty should be allowed to obtain certainty.
52. He said that Bernadette’s commencement at 13 ½ was entirely appropriate. He said that 16 for stage 2 was an arbitrary figure. He said it was difficult for adolescents to give proper and informed consent and this had to be looked at on a case by case basis. He said that the affect on bone density should be small. However he said that long term data should be assessed. He said that he had read Dr K’s material in relation to bone density, and he had read the article by the Dutch Professors.
53. Dr H then gave evidence by phone. She said she was at the Children’s Hospital and was not treating or involved with the treatment of any other child. She was asked about sperm extraction and said that there needed to be puberty for the viable sperm to be extracted. In light of the treatment envisaged, it was her understanding that sperm would not be viable. However she cautioned that fertility was not her area of expertise. The child, she said, showed no emotion in discussions about fertility and later said that a biological link with a child no longer concerned her. The doctor said the nature of this treatment can raise questions about the roles of the professionals involved. She said she knew little about the difference between the identified schools i.e. the British and the Dutch but that she was aware that the British school allowed puberty to occur. She said that this view was held by an ethics committee to whom she had presented this case. However, she said that views had differed as to whether to suppress or allow the child to experience puberty as a male and this required a reference to the court.
54. Dr D gave evidence by phone. Asked about the expression “cured” in relation to treatment for this situation, he said “cured” inferred there was something to be cured. There was debate whether adolescence should be treated to halt puberty or be allowed to experience it. He indicated that the Dutch school favoured halting puberty, the British school believed that puberty should be experienced and the American school was somewhere in between. He said that if treatment was stopped there would be a return of fertility but it would depend on how long the child had been receiving oestrogen and the doses involved. The longer the treatment, the higher the dosage, the greater the affect on fertility.
55. He said persons in Bernadette’s situation would see their situation as deeply disturbing, and they would be seriously distressed at the dichotomy between brain and body. They would want to be accepted as their brain presents, and not as their body presents. It is for this reason that the treatment is therapeutic. He said there was some medical opinion that the condition was caused by psychological factors.
56. Dr K gave evidence by telephone. He said that some persons do not decide until adulthood to proceed with treatment. He sees people who affirm their sex at an early stage.
57. He said that decisions about treatment require a team of experts working together over a period of time. Weight to be given to the wishes of the patient depend on individuals and factors such as maturity. It was important to sort out other psychiatric comorbidites which could affect and confuse the issue. He said that parents cannot confirm a child’s sex and that he was aware of situations where children had been raised in opposing gender.
58. He said he was aware of cases where children wanted treatment and the parents did not. Such situations were difficult and he had endeavoured to persuade the parents. He spoke of a situation where the parents had separated and did not agree. He said that in the United States he did not know what the legal situation was as to authorisation. He spoke of the suicide rate for young persons with transgender difficulties as being high. Out of four patients he had seen, three had attempted suicide.
59. He said that major concerns as to the Dutch approach had been allayed by a study. He said that bone density tests indicated that full mass had been regained but long term data needed to be assessed. He said that it was impossible to guarantee fertility. He said that there was one view that puberty must be undertaken to ensure full brain development. He said when the drug regime was lifted he would expect a child to move back into puberty in six to twelve months. He said he was impressed with the improvement in patients who commenced hormone treatment who had previously been labelled with anxiety, depression or bi-polar disorder. He described DSM4 as a self-fulfilling prophecy. He described The Netherlands as a lucky place where reassignment was available to all with no need for legal permission. He said that teenagers denied treatment will find ways to self-medicate.
60. Dr Y was called by telephone. He said that as a need for safeguards there should be two psychiatrists, a team approach and ongoing counselling. He said that he was seeing the child six weekly. He had seen her about phase 1, which he considered appropriate, and the child was anxious to continue treatment. He had been impressed by the way she had handled it. He said that by changing her name, school and progressing in treatment was behaving in a sensible way. Since starting blockers she had improved. He said that if the child had not undergone stage 1 it was possible that she would have left home and got hormones any way available to her. He said her life would have been very much worse if he had not assisted her.
61. This then comprised the evidence before me in written and oral form. 

DISCUSSION AND CONCLUSIONS

62. As I have said the orders of 7 November 2007 enabled the child to have appropriate treatment up to her attaining adulthood. The issues that now remain are the issues identified by the various parties in their submissions to me.
63. In addition to material in relation to this case and this child the applicant’s submissions, both originally and in reply, seem to raise issues well outside the issues particular to this case. They raise issues that may well be described as issues of general application.
64. I accept that much of the submissions and material put to me on behalf of the applicants are matters arising out of their genuine concern and interest in the difficulties experienced by young people other than Bernadette.
65. Notwithstanding the submission of the Director General that I should only effectively deal with the questions posed on his behalf (see paragraph 6), I propose to deal with the questions as posed and presented as requiring answer by the applicants in their written submissions to me. I am of the view that the submissions, the submissions in reply, raise issues that the other parties had not had an opportunity to deal with, for the simple reason that they were not raised in the applicant’s original submissions. However, as I have already alluded to, those submissions clearly seek to have me give answers of general application rather than deal with the issues specifically relating to this child. I accept that issues arising in this case may well be matters of general interest and concern. However, I am of the view that it would be unsafe to determine the questions raised as matters of general or theoretical application. The evidence that I have heard is particular to this case and this young person.
66. The New South Wales Court of Appeal in Re: Tyrone[2] in paragraph 3 of a judgment in relation to construction of a section of the Child and Young Persons (Care and Protection) Act 1998:

“The function of courts is to decide real disputes where the parties are in contest. It is not to decide questions which as between the parties have become academic, however important they may be to one of those parties for future cases.”

67. Whilst I accept the situation here is not on all fours with the matter determined by their Honours. I am respectfully of the view that what their Honours said is absolutely correct. Notwithstanding the provisions of rule 10.3 it is not, in my view the function of the single judge to make what might be called “findings of general application for future use”. That does not mean, of course, that I am precluded from reaching my own conclusions, and if necessary, distinguishing earlier judgments.
68. To find as an apparent matter of general application that it was or was not a matter for parental responsibility could be to do a disservice to other persons contemplating treatment. To say as a rule of general application that parents could or could not authorise such treatment could mean that parents without the full understanding, that the parents in this case clearly have, could make a decision which was ill informed and may well have a disastrous long term affect on a child, either by permitting or denying the child access to treatment. As I have already said I am not dealing here with the capacity of a child to give an informed consent.
69. However, as I have identified it, one of the corner stones of the applicant’s case is that I should find that the decision in Re: Alex[3] was wrongly decided. I will return to that issue shortly. 

THE STANDARD OF PROOF

70. So far as the standard of proof is concerned, I am satisfied that the strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. The more serious questions to be determined the higher degree of evidence of a real and probative value required for a decision maker to be satisfied that the issue has been proven. [4]
71. I am satisfied as to put me in the submissions of the Equal Opportunities Commission that in considering whether the evidence in this case can satisfy the court that a decision for authorisation for such treatment lies within parental power, I must have regard to the gravity of the consequences that might flow from the finding that I ultimately make.
72. I am satisfied that the authorisation of the treatment sought a matter of real significance, affecting at least the future life of the young person and highly probably that of the young person’s parent or parents.

FURTHER DISCUSSION AND CONCLUSIONS

73. It is patently obvious from the submissions of the applicants that they seek to have me find that the decision of Chief Justice Nicholson, as he then was, in Re: Alex[5] was wrongly decided.
74. In that case the learned Chief Justice found that the therapies sought should be administered. His Honour then made a declaratory order authorising that be done.
75. His Honour identified particular factors for consideration in matters of this kind and made findings in respect of them. I propose in these reasons for judgment to deal with those factors as they apply to Bernadette and thereafter make general comment about their ability to a general authorisation for parents to give consent.
76. The matters that his Honour identified were as follows:
    • (i) The particular condition of the child or young person requiring procedure or treatment;
    • (ii) The nature of the procedure or treatment proposed;

(iii) The reasons for which it is proposed that the procedure or treatment ought to be carried out;

(iv) The alternative courses of treatment that are available in relation to that condition;

(v) The desirability and effect of authorising the procedure for treatment proposed rather than available alternatives;

(vi) The physical effects on the child or young person and the psychological and social implications for the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment;

(vii) The nature and degree of any risk to the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment;

(viii) The views (if) expressed by the guardian(s) of the child or young person, a person who is entitled to the custody of the child or young person, a person who is responsible for the daily care and control of the child or young person, and the child or young person himself, to the proposed procedure or treatment and to any alternative procedure or treatment and to any alternative procedure or treatment.

Question (i) : the particular condition of the child.

77. The condition of Bernadette has been described as gender identity dysphoria or adolescent transsexualism. Simply put, Bernadette although born a male believes herself to be female and has affirmed her female sex. She has lived as a female since 2004.
78. One of the major questions in this case is whether or not transsexualism is a malfunction or a disease or a natural variation to be found in human beings where brain sex and genitalia are different. The argument of the applicants is that such a situation does not occur as a result of disease or malfunction, and accordingly should not be treated as such.
79. In this case I am not satisfied that the medical evidence was clear cut so as to enable me to say precisely what was the cause of transsexualism or gender dysphoria.
80. Clearly in the joint report of Professors T and W a report was attached which went to this issue. The question was put “Do you agree that the most likely or feasible explanation for transsexualism is that it is the incongruence in a human being between sexual differentiation of the brain and the balance of the sexually differentiated body”. The response what was that the phenomenon was a very complex one, at the moment we do not have enough data to prove that is the most likely explanation.
81. That report was evidence put before the court by the applicants. It was not the subject of cross-examination or further examination in chief.
82. I accept that the Dutch material appears to clearly indicate that a person’s sexually identity is determined by their “brain sex” and not by their genitalia or other aspects of their physical appearance or presentation.
83. The submissions of the applicants are, as I have said, lengthy and carefully drawn. However, on a reading of the whole of the evidence I am not able to say conclusively what it is that is the cause or causation of transsexualism.
84. I am satisfied that Bernadette’s wish to live as a woman is highly unlikely to change in the future.

Question (ii): The nature of the procedure or treatment:

85. I am satisfied that in the circumstances of this case the administration of the stage 1 and stage 2 treatments are part of a single treatment. However, I am satisfied that I should identify the two stages and I am satisfied that stage 1 treatment consists of the administration of gonadotrophin releasing hormone analogue (GnRHa) at an early stage of pubertal development (known as Tanner Stage 2) to suppress the onset of puberty in conjunction with ongoing psychiatric assessment and treatment (Stage 1 or Phase 1 treatment).
86. Stage or Phase 2 consists of the administration of cross sex hormones (oestrogen in an adolescent seeking affirmation in the female sex and testosterone in an adolescent seeking affirmation in the male sex) after the young person has turned 16 years of age to induce the physical characteristics of the affirmed sex (Stage 2 or Phase 2 treatment).
87. I am satisfied that stage 1 treatment, on the evidence that I have heard, can be ceased and its affect reversed. So far as stage 2 is concerned, I am satisfied that it would be possible to reverse that treatment so that in the event of stage 1 and stage 2 having been entered it would still be possible for Bernadette to retain male characteristics. Bernadette can of course cease or decline treatment at any time.
88. This, in this particular case, is a matter of some significance.
89. I am satisfied that Bernadette has considered the difficulties with fertility and I am satisfied on the evidence that I have heard that she does not view the loss of her capacity to be a biological parent as something that diminishes or affects her wish to be female.
90. I am also aware that the British view is that brain development continues throughout adolescence and thus if adolescence is blocked there maybe potential damage to the brain. This aspect is dealt with by the Dutch Professors who comment on the need for a study on the brains of adolescent transsexuals to endeavour to detect functional affect and difficulties. I am not satisfied that this is a potential aspect of the matter that would cause me to be of itself concerned that the treatment should not be permitted prior to adolescence.

Question (iii): The reasons for which it is proposed that the procedure or treatment ought to be carried out;

91. The reasons for the proposed procedure or treatment are clear. As I have said, Bernadette has lived as a woman for some time. She is, I am satisfied on the evidence that I have heard, particularly from Dr X a highly qualified psychiatrist having dealt with her for some years, that her view is one that is deeply and consistently held.
92. Bernadette has expressed her concern at not being able to undergo the treatment that she seeks so as to enable her to live her life in that which she is absolutely positive is her true sex.

Question (iv): The alternative courses of treatment that are available in relation to that condition;

93. I am satisfied that there is no proper and viable alternative course of therapy or treatment
94. The alternatives to the current proposals are that the child awaits the onset of male puberty before commencing treatment to realign her physical sex with her brain sex.
95. I am satisfied however that there is considerable difference between what might be described as the British school and the Dutch school as to whether or not Bernadette should be allowed to experience puberty as a male. To my mind that would appear to be the only matter that might be considered as an alternative.

Question (v): The desirability and affect of authorising the procedure for treatment proposed rather than available alternatives:

96. All medical experts agree that the treatment proposed is entirely appropriate for the child. It will enable her to be involved in her chosen sexual identity from this point on. There is concern from the evidence that I have heard that if therapy were not undertaken the child may cause herself harm and may endeavour to self-medicate with drugs not properly obtained. I am satisfied that any degree of risk at the hands of medical practitioners directly involved with Bernadette’s treatment is as best can be assessed minimal.

Question (vi): The physical affects on the child or young person and the psychological and social implications for the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment:

97. I am satisfied Bernadette is aware of side affects that may be involved.
98. I am satisfied that Bernadette has considered the difficulties with fertility and I am satisfied on the evidence that I have heard that she does not view the loss of her capacity to be a biological parent as something that diminishes or affects her wish to be female.
99. I am satisfied on the evidence I have heard that there appears to be no real long term concern as to her bone density provided proper medical safe guards are in place. I am satisfied that the stage 2 treatment may include breast and nipple development which may require surgical intervention were there to be a change in the wish to proceed to live as a female. However, I am satisfied in this case on the material I have heard that that is a most unlikely development.
100. As I have already said if the treatment is not permitted there is to my mind a prospect of self-harm or self-medication. I am further satisfied that in all the circumstances, if treatment were not to be administered, Bernadette would become unhappy and that unhappiness may lead to behavioural difficulties.

Question (vii): The nature and degree of any risk to the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment:

101. I have set out what I believe to be the countervailing considerations above. I am satisfied and here I refer to Re: Alex, her developmental socialisation would be jeopardised to her long term detriment if authorisation were refused.

Question (viii): The views (if) expressed by the guardian(s) of the child or young person, a person who is entitled to the custody of the child or young person, a person who is responsible for the daily care and control of the child or young person, and the child or young person himself, to the proposed procedure or treatment and to any alternative procedure or treatment and to any alternative procedure or treatment.

102. I am satisfied that both of Bernadette’s parents are conscious of their child’s needs and are supportive of her in that which is proposed. That is not to say that the parents have not in the past had real, and if I may say so, proper concerns in relation to this matter. However, after hearing the evidence of Bernadette’s father I am satisfied that he is now himself satisfied that this is the appropriate and proper course for his daughter to adopt.
103. It can thus be seen that the questions that I have answered in respect of Bernadette are matters requiring considered, thoughtful and mature consideration, particularly by the potential decision makers.
104. One of the matters to which I have been alerted is that it may well be that other parents or guardians involved in decisions as to whether or not treatment should be provided will not have the depth of information and expert evidence that Bernadette’s parents have been able to assemble and put before the court. They simply, through no fault of their own, may not be as well informed as are Bernadette’s parents as to the pros and cons of such a decision.
105. Further there is to my mind a situation of concern in the event that, if there is more than one parent or guardian, that agreement between them cannot be reached.
106. I am satisfied that the principles identified by the High Court in the decision of SMB and JWB Secretary Department of Health and Community Services[6]have application to this case. I am satisfied that the over-riding criterion is the child’s best interests. I am satisfied that the majority judgment of the High Court made it clear that the child’s bests interests is itself a limit of parental power.
107. There is no doubt that the best interest principle is the Family Court’s paramount consideration when exercising its’ jurisdiction.
108. In my view, subsections (1) and (2) of Section 67ZC of the Family Law Act are applicable. Those subsections are in the following terms:

(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.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.

(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.

Note:   Sections 60CB to 60CG deal with how a court determines a child’s best interests.

109. Clearly in that case their Honours were dealing with the sterilization of an intellectually disabled child. However, the judgment itself gave an indication that sterilization was not the only type of treatment which might fall outside parental consent.
110. Their Honour’s at page 252 say:

“The far reaching consequences of a general rule of allowing guardians consent to all kinds of medical treatment, as well as the consequences of a wrong decision in any particular case, are also relevant.”

111. Certainly, as I have found the evidence, the affect of the treatment which has already been ordered will have an affect on Bernadette’s fertility. As I understand the evidence, unless Bernadette is withdrawn from the treatment which by order of 7 November she is to receive then it is, I am satisfied, for any sperm to be harvested from Bernadette that would, at a later time, have the prospect of producing a biological child. Therefore, the child will be for all intents and purposes sterile as a result of these procedures. I am satisfied that the provisions of Section 175 of the Child and Young Persons (Care and Protection) Act 1998 (NSW) has relevance in this case. By Section 3 a child is defined as a person under the age of 16 years. Clearly that has no application in the present case to the present child.
112. Section 175 of the Child and Young Persons (Care and Protection) Act refers to a procedure involving sterilization. However, by virtue of Section 3 of that Act, a child is defined as a person under the age of 16 years. Clearly that has no application in the present case to the present child.
113. It was not argued in this case that the child could herself authorise treatment. In that situation, medical authorisation would usually fall within what might be described as the ordinary scope of parental responsibility. Certainly Marion’s case refers to “health, function or disease” when dealing with the distinction between therapeutic and non-therapeutic treatment.
114. It is clear, as I have already endeavoured to explain, the cause of the condition is unable to be precisely defined. There may be a biological cause to genetic and endocrionic influences. It may be that an individual experiencing sexual differentiation of brain and body would experience that situation as a malfunction. This is taken from the evidence of Dr D. It is clear, however, that there is expert opinion that the actual cause remains uncertain. The two opposing views seem to be that it has a biological basis, on the other hand, results from mental illness. In this case none of the experts expressed a view that mental illness was a satisfactory explanation. There was criticism of attempts to treat transsexualism as a mental illness. Dr K made it clear that by not treating people with transsexualism medically, we were creating mental illness rather than starting with a mental illness that we need to find some way of treating medically.
115. I am satisfied that in this case it is appropriate and necessary for me to consider sections of the Family Law Act which are applicable.
116. Section 60B sets out the objects of the Act and the principles underlying those objects. I do not propose to set them out in full in these reasons for judgment.
117. Section 60B, however, makes it clear that children ought to have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests. I am satisfied that in this case both parents have been deeply involved in the processes surrounding Bernadette’s treatment. I am satisfied that the relationship of both parents with Bernadette is close, loving and supportive.
118. I am satisfied that Bernadette’s parents have sought to protect their daughter from physical or psychological harm by assisting her to the best of their ability in obtaining the treatment that she requires to live her life as a fulfilled woman. I am satisfied that the parents have done their best to provide adequate and proper parenting for this child.
119. Clearly, as I have already said in dealing with section 67Z, the child’s best interests are the paramount consideration. This section is in similar terms to Section 60CA of the Act. I am told then how a court determines what is in a child’s best interests. The primary considerations are the child having a meaningful relationship with both parents and the need to protect the child from harm. I believe I have dealt with these aspects previously in my reasons for judgment. One of the matters that I consider significant is the first of the additional considerations within Section 60CC(3)(a) any views expressed by the child and factors underlying those views. I am satisfied that the child’s view are to be given serious weight and taken into account appropriately. I am satisfied that there is nothing underlying Bernadette’s views that would cause me concern.
120. The child in this case clearly wishes to proceed. I am satisfied on the evidence I have heard that so far as is possible, and I consider this has been done in an appropriate and age appropriate fashion, Bernadette has considered that undergoing the therapy will result in her losing the ability to produce biological children. Nonetheless, I am satisfied that her views are well formed and have been strongly held over an extensive period of time. I am satisfied that she has worked competently and sensibly with those assisting her to obtain that which she seeks to achieve.
121. Having made findings in relation to, and having endeavoured to examine and identify the difficulties in making a decision which would have general application I turn to the issue as I identify it.
122. Is this a case where I should permit the parents to authorise the treatment for a child with there being no need for the court to be in any way involved in this decision?
123. I am not satisfied that the evidence before me establishes that there has been such a change in the state of medical knowledge that I should find that I am able to disregard the views of the High Court or indeed of the former Chief Justice in Re: Alex. My concern is as to making the wrong decision as was referred to by his Honour in Alex. The risk of making a wrong decision was a primary factor influencing their Honours of the High Court in Marion’s case.
124. As conceded by the Director General, orders for phase 1 and 2 for Bernadette were made by consent. However, that which is appropriate in one case has no necessary general application. As I have said to the point of boredom, it is the intention of the applicant’s to obtain to what appear to be findings that would have a general application. However, as a matter of general application, a number of issues may arise, for example, parents may have competing interests and concerns. I am satisfied there still remains grave dispute within the medical community as to the best treatment that can be offered. I am satisfied that until there is a clear cut line of authority within the medical profession, it would be difficult for parents to reach an informed conclusion in every case.
125. I acknowledge that this case has been conducted with great attention to detail on the part of the applicants in an attempt to put before the court all relevant evidence to lead to the court deciding in favour of the applicants. However, in all the circumstances in this case I am unable to say that the medical evidence presented to me has demonstrated conclusively the cause of transsexualism so as to enable me to find that it is a normally occurring factor of human development. I am thus not satisfied that on that test, that transsexualism is a condition that falls within the range of matters that can be addressed and seen as falling within the parameters of normal parental responsibility to authorise treatment.
126. For the reasons I have endeavoured to set out, to try and make any form of order or declaration that would be seen as enabling any parent or guardian to authorise treatment of the type involved in this case could be to expose children, the subject of such authorisations, to unwarranted risks. It would not, I am satisfied, be in the best interests of every child to enable parents or guardians to give such consent. Accordingly, I am satisfied that in the best interests of children it is necessary for the court to retain the power to authorise treatment in respect of a particular child when treatment of this kind is contemplated. The court may in appropriate cases, being satisfied on evidence put before it, find that in that particular case it is appropriate to permit the parents or guardians in that particular case to authorise treatment. However, that remains a matter for determination on a case by case basis.
127. I have come to the conclusion that I must answer the questions posed by the applicant as “No” in each case.
128. So that there can be no misunderstanding as to the status of orders on 7 November 2007 I confirm that orders 1, 2, 3 and 4 of that day are final orders.
129. I thus answer the questions posed by the applicants in their submissions to me as follows:
     17. 6.1 Does the parent of an adolescent minor and/or such minor (provided that such minor has a sufficient understanding and intelligence to enable him or her to understand fully what is proposed) have the authority to lawfully authorise medical treatment of that adolescent minor to arrest the onset of the minor’s puberty (“Phase 1 Treatment”) in the course of the medical treatment of the condition of transsexualism (also called gender identity disorder) without an Order of a Court?

A. No

17. 6.2 In Phase 1 treatment for the condition of transsexualism (also called gender identity disorder) “special medical treatment” as defined in section 175 of theChildren and Young Persons (Care and Protection) Act 1998 (NSW)?
1. No
17. 6.3 Does the parent of an adolescent minor and/or such minor (provided that the adolescent minor has a sufficient understanding and intelligence to enable him or her to understand fully what is proposed) have the authority to lawfully authorise hormonal medical treatment for the adolescent minor to induce the secondary sexual characteristics of the adolescent minor’s affirmed sex (Phase 2 Treatment”) in the course of the medical treatment of the condition of transsexualism (also called gender identity disorder) without an Order of a Court?
1. No.
17. 6.4 Is hormonal medical treatment to induce the secondary sexual characteristics of the adolescent minor’s affirmed sex (“Phase 2 Treatment”) for the condition of transsexualism (also called gender identity disorder) “special medical treatment” as defined in section 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)?
1. No.

130. I make the following orders:
     1. I confirm orders 1, 2, 3 and 4 made on 7 November 2007 are final orders.
     2. I otherwise dismiss all outstanding applications and cross-applications.
     3. I remove all issues from the pending cases list.
     4. I order that all subpoena material be returned after the expiration of 56 days.

I certify that the preceding One Hundred & Thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: JM:JK

Date: 19 January 2010

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[1] Re: Alex [2004] FamCA 297; (2004) FLC 93-175

[1] Section 88D(i) of the Marriage Act.

[2] Re: Tyrone (2002) NSW Court of Appeal 414

[3] Re: Alex [2004] FamCA 297; (2004) FLC 93-175

[4] Briginshaw [1938] HCA 34; (1938) 60 CLR 336

[5] Re: Alex [2004] FamCA 297; (2004) FLC 93-175

[6] SMB and JWB Secretary Department of Health and Community Services [1992] HCA 15; (1992) 175 CLR 218