Re: Devin
[2025] FedCFamC1F 211
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Devin [2025] FedCFamC1F 211
File number: By Court order file number is supressed Judgment of: STRUM J Date of judgment: 3 April 2025 Catchwords: FAMILY LAW – CHILDREN – Gender incongruence/dysphoria –– Where the diagnosis of gender incongruence/dysphoria by the child’s treating psychologist is challenged by the respondent father and Independent Children’s Lawyer – Whether, if gender incongruent/dysphoric, Stage 1 puberty blockers should be administered to the child – Where there are previous final orders for the child to live with the mother – Where the father seeks orders that the child live with him and that he have sole parental responsibility for the child – Where mother seeks that she have sole parental responsibility for the child’s long-term health, including in relation to gender identity and the treatment thereof – Where father and Independent Children’s Lawyer oppose the administration of puberty blockers to the child – Where it is alleged there is an unacceptable risk of harm to the child – Where the Court does not accept the child’s diagnosis of gender incongruence/dysphoria – Where the Court finds the child to be gender fluid or expansive – Where, even if the child were gender incongruent/dysphoric, the Court would not authorise the administration of puberty blockers as proposed by the mother – Finding that it is in the best interests of the child for the child to live with the father and spend time with the mother and for the father to have sole parental responsibility for the child. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 61DAA 64B, 65D, 65DA, 65DAA, 65DAAA, 65H, 67ZC and 69ZT
Family Law Amendment Act 2023 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.3 and r 7.18
Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic) s 10 and s 11
Equal Opportunity Act 2010 (Vic)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1993] HCA 34
Doherty & Doherty [2016] FamCAFC 182
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112
Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346
Government Insurance Office (NSW) v Bailey (1992) 27 NSWLR 304
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) 367 FLR 338; [2022] FedCFamC1A 97
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v M (1988) 166 CLR 69; [1988] HCA 68
Mallory & Mallory [2019] FamCAFC 221
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Pickford & Pickford [2024] FedCFamC1A 249
Pruchnik & Pruchnik (No 2) (2018) 58 Fam LR 458; [2018] FamCAFC 128
Re Ash (No 4) [2024] FedCFamC1F 777
Re CD [2024] VSC 456
Re Imogen (No 6) (2020) 61 Fam LR 344; [2020] FamCA 761
Re Jamie (2013) FLC 93-547; [2013] FamCAFC 110
Re Kelvin (2017) FLC 93-809; [2017] FamCAFC 258
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Montessori, Maria, The Discovery of the Child (Montessori-Pierson Publishing Company, 1948)
Division: Division 1 First Instance Number of paragraphs: 382 Date of last submission/s: 20 December 2024 Date of hearing: 12-16 and 19-21 February 2024, 27-31 May 2024, 3-7 June 2024, 12 September 2024 and 20 December 2024 Counsel for the Applicant: Mr McDermott and Ms Isaacson Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Bonney and Ms Paterson Solicitor for the Respondent: Schetzer Papaleo Family Lawyers Counsel for the Independent Children's Lawyer: Ms Mallet KC and Ms Aoukar Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
SUPPRESSED FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for making decisions about all major long-term issues in relation to the child, Devin, born 2013, save that prior to making any such decisions, he:
(a)provide the mother with not less than 28 days’ notice of the decision required to be made and his proposal in relation thereto;
(b)provide the mother with sufficient information to enable her to consider his proposal; and
(c)give due consideration to the views in relation thereto expressed by the mother –
and, in the event of a disagreement between the parents, the father make the final decision and notify the mother of same, in writing, within 48 hours thereof.
2.The child live with the father.
3.From the commencement of Term 2 in 2025, the child spend time with the mother as hereinafter provided.
4.In the gazetted Term 1 school holidays, commencing in 2026, the child spend time with each of the parents for one half thereof, at such times as may be agreed between the parents in writing and, failing agreement, commencing at the conclusion of school (or like time) on the last day of Term 1 and concluding at the commencement of school (or like time) of the first day of Term 2, with changeover between the parents to occur on the intermediate Saturday of such holidays, as follows:
(a)in 2026, and each even-numbered year thereafter, the child spend time with the mother in the week containing the Easter weekend; and
(b)in 2027, and each odd-numbered year thereafter, the child spend time with the father in the week containing the Easter weekend.
5.Unless otherwise agreed in writing between the parents, they, their servants and agents, be restrained from:
(a)consenting to or otherwise facilitating the child attending upon a psychologist or paediatrician at the Children’s Hospital Gender Service;
(b)consenting to, or otherwise facilitating, the child commencing the administration of “stage one” puberty blocking medication;
(c)consenting to, or otherwise facilitating, the child commencing the administration of “stage two” cross-sex hormones;
(d)taking any steps to change the child’s name, recorded sex and gender with the Registrar of Births, Deaths and Marriages; and
(e)discussing any court proceedings, or the contents of any documents filed in any court, that relate to the parents or the child, with or in the presence or hearing of the child.
6.As soon as practicable hereafter, the father do all necessary things to obtain a referral for the child for an assessment, and any treatment, if required, by a paediatrician and/or child and adolescent psychologist or psychiatrist, and provide the mother with the name and contact details of those treaters (“the treating health professionals”).
7.The mother be at liberty, and this order stands as authority for the mother, to communicate and liaise with any of the treating health professionals.
8.The parents forthwith do all acts and things and sign all documents necessary to enrol the child and to facilitate the child attending at:
(a)B School until the conclusion of primary school; and
(b)C School, for the child’s secondary education –
unless otherwise agreed between them in writing from time-to-time hereafter.
9.In the event the mother refuses or fails to comply with order 8, the father be authorised to enrol the child in the aforementioned schools without the need to obtain the mother’s consent, and he be permitted to provide a copy of this order to the said schools.
10.The Independent Children’s Lawyer meet with the child and a Court Child Expert at Court this day to advise the child of, and to explain to the child, these orders.
11.Upon compliance with Order 10, the appointment of the Independent Children’s Lawyer be and is hereby discharged.
THE COURT FURTHER ORDERS BY CONSENT IN ACCORDANCE WITH THE MINUTE OF PROPOSED CONSENT ORDERS SIGNED BY THE PARTIES (AS AMENDED BY THE COURT TO GIVE EFFECT TO THE PRECEDING ORDERS) THAT:
12.All previous parenting orders with respect to the child be and are hereby discharged.
Care arrangements
13.The child spend time and communicate with the mother during the gazetted school term periods as follows:
(a)Each alternate week from the conclusion of school Friday (or 3:30pm in the event of a non-school day) to the commencement of school Monday (or 9:00am in the event of a non-school day), save that if the Monday is a student free/curriculum free day or public holiday the time be extended until the commencement of school on Tuesday (or 9:00am); and
(b)at such other and further times as may be agreed between the parents in writing.
School holidays
14.For the gazetted school term 2 and 3 holidays, the child spend time with each of the parents for half of the school term holidays, at such times as agreed between the parents in writing and, failing agreement, as follows:
(a)In even numbered years:
(i)with the father from the conclusion of the last day of term until 5.00pm on the middle Sunday of the school holidays; and
(ii)with the mother from 5.00pm on the middle Sunday of the school holidays until 5.00pm the Sunday prior to the commencement of the first day of the next school term;
(b)In odd numbered years:
(i)with the mother from the conclusion of the last day of term until 5.00pm on the middle Sunday of the school holidays; and
(ii)with the father from 5.00pm on the middle Sunday of the school holidays until the commencement of school for the next term;
15.For the gazetted term 4 long summer holidays, the child spend time with each of the parents for half of the holidays at such times as agreed in writing between the parents and failing such agreement, as follows:
(a)In odd numbered years:
(i)With the father from the conclusion of school until 5.00pm on the third Sunday (two weeks);
(ii)With the mother from 5.00pm on the third Sunday until 5.0pm on the fifth Sunday (two weeks); and
(iii)Week-about from 5.00pm on the fifth Sunday until 5.00pm the following Sunday thereafter.
(b)In even numbered years:
(i)With the mother from the conclusion of school until 5.00pm on the third Sunday (two weeks); and
(ii)With the father from 5.00pm on the third Sunday until 5.00pm on the fifth Sunday (two weeks); and
(iii)Week-about from 5.00pm on the fifth Sunday until 5.00pm the following Sunday thereafter.
(c)In the event the child is not already in the care of the father, the child be returned to his care at 5.00pm on the Sunday before the commencement of Term 1 each year.
Special Occasions/other
16.Notwithstanding any other provisions herein, the child spend time with each of the parents as follows for special occasions:
(a)On the child’s birthday from 3.30pm to 7.00pm if same falls on a school day and from 10.00am to 3.00pm in the event of a non-school day, with the parent with whom the child is not otherwise living or spending time that day;
(b)In the event the child’s birthday falls during Easter, the birthday time provision prevail;
(c)With the father from 5:00pm the day preceding Father's Day to the commencement of school the following day (or 9:00am in the event of a non-school day); and
(d)With the mother from 5:00pm the day preceding Mother's Day to the commencement of school the following day (or 9:00am in the event of a non-school day).
17.Notwithstanding any other provisions herein, the child communicate with the parent with whom the child is not then living or spending time by WhatsApp video or telephone call each Wednesday, between the hours of 5:30pm to 6:00pm, with such parent to initiate the contact and the other parent to ensure the child is available to take the call and provided with reasonable privacy during the call, and the other parent to ensure that his/her What's App settings enable both video and telephone communication.
School and extra-curricular enrolments
18.Save and except for where permitted in these Orders, each of the parents be restrained from changing or attempting to change the child’s school without the prior written consent of the other parent.
19.Each of the parents be restrained from enrolling or attempting to enrol the child in extracurricular or sporting events at times when the child is in the care of the other parent, without the other parent’s prior written consent.
Changeover
20.For the purposes of these Orders, changeover occur at the child’s school on a day when the child is attending school, and in the event that changeovers do not occur on a day when the child is attending school:
(a)The father deliver the child to the mother at Suburb D Shopping Centre at the commencement of her time and the mother deliver the child to the father at the commencement of his time at E Shopping Centre;
(b)In the event that E Shopping Centre is closed at the time of changeover, changeover occur at Suburb D McDonalds; and
(c)In the event that E Shopping Centre is closed at the time of changeover, changeover occur at Suburb F McDonalds.
21.Each parent use their best endeavors to ensure they are on time for changeover and not running late due to factors within their control.
The Child’s communication with the Parents and each other
22.The child be permitted to communicate with the parent with whom the child is not then living or spending time through WhatsApp telephone and video calls at all reasonable times as requested and the other parent facilitate the call if necessary, including ensuring that their WhatsApp settings enable both telephone and video calls.
23.The parents give the other at least 72 hours advance notice by Our Family Wizard Communication App in the event that they are unable to spend time with the child pursuant to these Orders from time to time.
24.The parents continue to communicate through the Our Family Wizard Parenting app, unless in an emergency, and respond to messages, where necessary, within a reasonable timeframe and ensure that it only be used to communicate about arrangements or matters regarding the child in a child-focused manner and not as a means of either parent communicating or seeking to communicate with the child.
Information about the Child
25.Each parent be at liberty to:
(a)Obtain school reports, newsletters, notices, photographs and the like directly from the child’s school at their expense;
(b)Attend parent teacher interviews and discuss the child's progress with the child’s school at separate times from each other.
26.Each of the parents personally and by their servants and agents be and is hereby restrained by injunction from:
(a)doing or saying anything to the child or in the presence or hearing of the child that is derogatory of the other parent; or
(b)denigrating, abusing or belittling each other in the presence or hearing of the child.
Travelling with the Child
27.Each parent be at liberty, during their scheduled time with the child, to travel with the child interstate providing that the parent travelling provides the other parent with contact and transport details including flights and accommodation details at least 14 days prior to any intended travel.
28.Either parent be entitled to remove the child from the Commonwealth of Australia during periods that the child is spending time with them on the following conditions:
(a)Neither parent be permitted to travel with the child to a country where the Australian Government has issued a travel advice higher than "Exercise a High Degree of Caution, or “Do not travel";
(b)At least 60 days prior to any departure overseas, the travelling parent provide the other parent with a complete itinerary including air travel and hotel details and contact details;
(c)At least seven days prior to any departure overseas with the mother, the father deliver the child's passport(s) to her;
(d)No later than seven days following the return to the Commonwealth of Australia, the mother return the child's passport(s) to the father;
(e)Each of the parents sign all documents as may be necessary to apply for and renew the child's Australian passport from time to time and meet one half of the costs of same, with such passport being held by the father;
(f)When overseas, the travelling parent ensure the child is able to use a telephone or an audio-visual online communication tool (such as Zoom or Skype) to communicate with the other parent at all times as requested and the other parent be able to communicate with the child by the same means at all reasonable times.
29.During any period of travel, the travelling parent ensure the child is able to telephone the non-travelling parent at all times as requested by the child.
Other
30.Each of the parents forthwith notify the other of any change in residential address, telephone number or email address within 72 hours of any such change.
31.The time to be spent by the mother with the child during school terms resume upon the commencement of a new school term as if the holidays had not intervened, such that if the child spends time with the mother on the last full weekend of the previous term, the child spend time with her on the second weekend of the following term and vice versa.
32.Each parent be authorised to provide a copy of these orders to Police, the child’s school, any extra-curricular coordinators and facilitators, general practitioner, psychologists and/or psychiatrists, and any other health practitioners that the child attends upon from time to time.
33.Pursuant to s 68P and s 68Q of the Family Law Act 1975 (Cth), to the extent that these Orders are inconsistent with an existing Family Violence Intervention Order, these orders prevail.
AND THE COURT NOTES THAT:
A.Section 114Q(1) of the Family Law Act 1975 (Cth) provides that a person commits an indictable offence if:
(a)the person communicates to the public an account of proceedings under this Act; and
(b)the account identifies:
(i)a party to the proceedings; or
(ii)a witness in the proceedings; or
(iii)a person who is related to, or is associated with, a party to the proceedings; or
(iv)a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.
Penalty: Imprisonment for 1 year.
B.Section 114Q(3) provides that, for the purposes of paragraph (1)(b), an account of proceedings is taken to identify a person if the account includes material that is sufficient to identify the person to a member of the public. Examples of such material might include the following:
(a)a picture, recording, or physical description of the person;
(b)a name or title that identifies the person;
(c)an address or location where the person resides or works;
(d)details of the person’s employment, paid or voluntary;
(e)the relationship or other connection between the person and an identified person or business;
(f)the person’s political, philosophical or religious beliefs;
(g)any real or personal property associated with the person.
C.Section 114S(1) provides that, for the purposes of (inter alia) s 114Q(1)(a), a communication to a person or body is not a communication to the public if:
(a)the person or body has a significant and legitimate interest in the subject matter of the communication; and
(b)that interest is substantially greater than, or different from, the interests of members of the public generally.
D.Section 114S(2) provides that, without limiting s 114S(1), none of the following is a communication to the public:
(a)a private communication between a party to proceedings and one or more persons who are members of the party’s family or friends of the party;
(b)a communication of a pleading, transcript of evidence, or other document for use in connection with any of the following proceedings, to a person concerned in those proceedings:
(i)proceedings in a court;
(ii)proceedings before an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the applicable Rules of Court;
(iii)proceedings in a tribunal established by or under a law of the Commonwealth or of a State or Territory;
(c)a communication of a pleading, transcript of evidence, or other document, to a prescribed authority of a State or Territory that has responsibilities relating to the welfare of children;
(d)a communication of a pleading, transcript of evidence, or other document, to:
(i)a body that is responsible for disciplining members of a profession in a State or Territory; or
(ii)a person concerned in disciplinary proceedings against a member of a profession in a State or Territory (being proceedings before a body that is responsible for disciplining members of that profession in that State or Territory);
(e)a communication of a pleading, transcript of evidence, or other document, to a body that grants assistance by way of legal aid for the purpose of facilitating a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case;
(f)a communication of material intended primarily for use by the members of any profession (being part of a series of law reports or any other publication of a technical character);
(g)a communication of an account of proceedings to a member of a profession in connection with:
(i)the person’s practice of that profession; or
(ii)any form of professional training in which that person is involved;
(h)a communication of an account of proceedings to a student in connection with the student’s studies.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
The pedagogist, Maria Montessori (1870–1952), in her book The Discovery of the Child (Montessori-Pierson Publishing Company, 1948), wrote (at p. 63):
The life of a child is not an abstraction; it is something that is lived by each one in particular. There is only one real biological manifestation, that of the living individual; and education, that is, the active assistance required for the normal expansion of life, should be directed towards these individuals as they are observed one by one. A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life. We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.
I refer to this passage, not because I rely upon it in any way in my determination of this case, but, rather, because it is illustrative of a central issue for determination. Montessori’s observations, although penned many decades ago and somewhat antiquated in language, continue to explain, at least in part, why it is that, at law, in the Commonwealth of Australia or various of its States and Territories, children under the age of 18 (or, in some cases, 16) years, inter alia, cannot vote, gamble or drive motor vehicles unsupervised; why contracts entered into by them may be voidable at common law; why alcohol and cigarettes may not be sold to them; why tattoos or piercings (particularly intimate body piercings) cannot be applied to them, or their names changed, without parental consent; and why, even after the age of 16 years, there are restrictions upon with whom they may engage in sexual relations. That is because, quite simply, they are children with, as Montessori wrote, bodies which grow and minds which develop, such that their mysterious potentialities, and the successive manifestations thereof, should be awaited.
There are many wonderous and wonderful aspects of childhood, suffused with an innocence that passes with maturity and adulthood. Children may fervently believe, feel and, indeed, wish for many things which may well fall by the wayside as they develop from childhood into adulthood. At one end of a very broad spectrum, these may be innocuous, whilst, at the other end thereof, they may be deep-seated and genuinely felt or held. But, even then, they are still children, and their beliefs, feelings or wishes in childhood may have potentially grave ramifications for their future lives.
This is also recognised by the Family Law Act 1975 (Cth) (“the FLA”). The trial of these proceedings having commenced prior to 6 May 2024, they are to be determined in accordance with the provisions of Pt VII of the FLA before the amendments thereto by the Family Law Amendment Act 2023 (Cth) (“the Family Law Amendment Act”), which commenced operation on that date.
Relevantly, s 61C(1) of the FLA provides that each of the parents of a child who is not 18 years of age has parental responsibility for that child. Section 65H(1)(a) provides that a parenting order, as defined in s 64B, must not be made in relation to a child who is 18 or over. Section 65H(2) provides that a parenting order in relation to a child stops being in force if, inter alia, the child turns 18. Whilst s 60CC provides that, in determining what is a child’s best interests, the Court must consider, inter alia, “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views” (s 60CC(3)(a)) and “the maturity, sex, lifestyle and background … and any other characteristics of the child that the Court thinks are relevant” (s 60CC(3)(g)), ultimately, in deciding whether to make parenting orders in relation to a child, as between the parties to the proceedings, the Court retains jurisdiction, as between parents in dispute, until the child attains the age of 18 years.
These proceedings concern Devin, a biologically male child, born in 2013. Whether the child’s biological (or, as the mother and her experts would say, assigned) sex, accords with the child’s gender or gender identity is at the heart of this case. The mother contends that the child is gender dysphoric or incongruent; the father, supported by the Independent Children’s Lawyer, contends that the child is gender exploratory, expansive or fluid. There are competing applications between the applicant mother and the respondent father for parenting orders pursuant to Pt VII of the FLA. In summary, each parent seeks orders for sole parental responsibility or aspects thereof, for the child to live with him or her and to spend time with the other parent. Intertwined with the issue of parental responsibility is that of medical treatment, in particular, in relation to the child’s gender identity, including whether the child should be administered Stage 1 puberty blocking medication. No party seeks orders pursuant to s 67ZC of the FLA in relation to treatment for the child; rather, they seek orders for sole parental responsibility in relation thereto. To their credit, by the time of closing submissions and even thereafter, the parties were able to narrow the ambit (albeit not the depth) of their dispute and a minute of orders sought to be made by the Court has been provided and orders will be made to give effect thereto.
The Independent Children’s Lawyer submits, in her written closing submissions, and I agree, that questions of parental approach to, and responsibility for, decision-making with respect to the child’s gender identity are central to, and will be largely determinative of, both the Court’s decision regarding allocation of parental responsibility for decision-making with respect to medical decisions, as well as with whom the child should live and how the child should spend time with the other parent.
The trial of these proceedings, which was initially listed for eight days, on the estimation of the parties’ lawyers, commenced on 12 February 2024. On 21 February 2024, not being anywhere near completion, it was adjourned part-heard to 27 May 2024, for 10 further days of hearing. On 7 June 2024, it was adjourned to 12 September 2024, for oral final submissions, addressing written final submissions to be filed in the intervening period. The matter was listed for mention, at the motion of the Court, on 20 December 2024, in relation to subsequent developments in the United Kingdom, arising from the final report (“the Cass Report”) of the “Independent Review of Gender Identity Services for Children and Young People” (“the Cass Review”), which was tendered on behalf of the mother (Exhibit M-8) and therefore forms part of the evidence adduced by her, albeit generally not supportive of her case.
A central issue in the determination of the parents’ competing applications, including by reason of the manner in which they conducted their respective cases, is whether the child is gender dysphoric/incongruent and, if so, whether puberty blockers should be administered. The mother would have the Court answer both of those questions in the affirmative; the father, supported by the Independent Children’s Lawyer, would have the questions ultimately answered in the negative.
Despite my repeated exhortations to the parents and, to some extent, the experts who supported their respective cases, as well as the lawyers who represented them, to recall that the Court was deciding a case involving the best interests of the child and not the cause of transgender people, that occasionally seemed to fall on deaf ears. In the case of the father, it is correctly observed in his written closing submissions (at paragraph 7) that “[i]t should be noted at the outset that these are parenting proceedings in relation to a young child with gender exploring traits rather than a cause célèbre for advocating trans rights”. In the case of the mother, my concerns are exemplified, in part, by the evidence of Associate Professor L, a paediatrician and adolescent medicine physician, who is the Chief of Medicine at The Children’s Hospital and who was previously the Director of the Department of Adolescent Medicine, as well as of the Gender Service at that hospital (noting that, at times, it was referred to in evidence as the Children’s Hospital Gender Clinic, or CHGC). She is also currently a member of the State Government’s Transgender and Gender Diverse Expert Advisory Group. She was not called as a single expert but, rather, as an expert witness in the mother’s case, the provisions of Div 7.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) having been dispensed with by orders made by consent on 17 April 2023. Nevertheless, Associate Professor L was subject to the provisions of r 7.18 of the Rules, which provides, inter alia, that:
(1)An expert witness has a duty to assist the court with matters that are within the expert witness’s knowledge and capability.
(2)The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3)The expert witness has the following duties:
(a)to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability
…
Notwithstanding those duties, Associate Professor L described herself as, or agreed she was, and/or engaged in, (inter alia) “advocacy to remove the legal requirement for trans and gender diverse adolescents to obtain Court authorisation to access gender affirming hormone treatment” (affidavit filed 9 February 2024, p.5); an “advocate for trans rights” (Transcript 28 May 2024, p.105 line 4); an “advocate for transgender healthcare” (Transcript 29 May 2024, p.3 line 31); that she was giving her expert opinion “as an advocate for trans people” (Transcript 28 May 2024, p.105 lines 20-21); and that her “preferred model of healthcare for transgender children is a gender-affirming treatment” (Transcript 29 May 2024, p. 3 line 32-33), comprised, initially, of puberty blockers, followed possibly by cross-sex hormones and gender reassignment or gender surgery. However, advocacy in a court is for lawyers, not witnesses, neither lay nor expert.
Similarly of concern, Dr N, a senior clinical psychologist at the CHGS, said that she had found some of the expert reports annexed to affidavits filed by the father and the Independent Children’s Lawyer, which did not concur with her gender affirming treatment philosophy “hard to … read” (Transcript 19 February 2024, p.23 lines 38–39). That difficulty experienced by her is also hard to reconcile with her obligations, as an expert, “to give an objective and unbiased opinion that is also independent and impartial”, as required by r 7.18(3)(a) of the Rules.
Also of concern is the fact that, in the mother’s Case Outline / written opening submissions, prepared by her counsel and solicitors and filed on 7 February 2024, it was submitted at paragraph 65 that:
By way of background context only, and given some of the evidentiary material put forward by the ICL and the Father about [State S] law, it is necessary to have brief regard the [sic] Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic). …
(Footnotes omitted)
In two footnotes appended to that sentence, reference was made by name to two of the expert witnesses of the Independent Children’s Lawyer and two of the expert witnesses of the father, all of whom oppose the mother’s case, namely, Dr M, Dr O, Professor P and Dr Q. Ultimately, no reliance was placed upon the evidence of the latter two experts, but that is immaterial to the point.
At paragraph 65, in relation to the Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic) (“the Change or Suppression (Conversion) Practices Prohibition Act”) it was submitted that:
… The [State S] Prohibition Act operates to prohibit persons from engaging in “change or suppression practices” for another person’s “gender identity” through the creation of criminal offences, and a civil response scheme (administered by the [State S] Equal Opportunity & Human Rights Commission, or [EOHRC]) which is designed to promote understanding of the prohibition of “change or suppression practices” under that Act. …
(Footnotes omitted) (Emphasis in original)
At paragraph 66, it was submitted that:
The [State S] Prohibition Act identifies that it is the intent of the [State S] Parliament to denounce and give statutory recognition to the serious harm caused by change or suppression practices; affirm that a person’s gender identity is not broken and in need of fixing, and also does not constitute a disorder, disease, illness, deficiency or shortcoming; and to affirm that change or suppression practices are deceptive and harmful both to the person subject to them and the whole community. A “change or suppression practice” is a practice or conduct directed towards a person, whether with or without their consent, on the basis of their gender identity and for the purpose of changing or suppressing their gender identity or inducing that person to change or suppress their gender identity. The [State S] Prohibition Act deploys a definition of “gender identity” as is reflected in the Equal Opportunity Act 2010 (Vic):
[“]gender identity" means a person's gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references.
(Footnotes omitted) (Emphasis in original)
At paragraph 68, further reference was made to the criminal offences created by the Change or Suppression (Conversion) Prohibition Practices Prohibition Act referred to in paragraph 66, including the maximum penalties for natural persons, namely, 10 years imprisonment / 1200 penalty units (s 10) or five years imprisonment / 600 penalty units (s 11).
As to the assertion on behalf of the mother that the references to the Change or Suppression (Conversion) Practices Prohibition Act were by way of “background context only”, it was and remains entirely unclear how or why they provided such context or, indeed, why such context was necessary in her case. Further, as to the assertion that such references were necessary “given some of the evidentiary material put forward by the ICL and the Father” (at paragraph 65), it similarly was, and remains, entirely unclear why this was said to be so. Counsel for the mother conceded that the Change or Suppression (Conversion) Practices Prohibition Act has, and could have, no application to these proceedings or to the evidence of the experts. However, as referred to below, it may explain some of the difficulties encountered by the father and the Independent Children’s Lawyer who oppose the mother’s case, in relation to obtaining both expert evidence for these proceedings and alternative treatment proposals for the child.
I expressed concern, at the commencement of the trial, regarding any interplay, or inconsistency, between the Change or Suppression (Conversion) Practices Prohibition Act and the FLA. I was told by counsel for the mother that no such issue would arise. Accordingly, in orders made on 12 February 2024, I noted that, notwithstanding injunctions then sought by the father that, unless otherwise agreed in writing between the parents, they, their servants and agents, be restrained from consenting to or otherwise facilitating the child attending upon a paediatrician at the CHGS; commencing the administration of “Stage 1” puberty blocking medication; and commencing the administration of “Stage 2” cross-sex hormones, in relation to the provisions of the Change or Suppression (Conversion) Practices Prohibition Act–
… no party seeks that the Attorney Generals of the Commonwealth, the State of [State S] or any other of the States or Territories of the Commonwealth be invited to intervene, or that such intervention is necessary in these proceedings pursuant to s 91 of the Family Law Act or asserts that such orders, if made, will constitute a breach of the State Act.
I also expressed concern that these references to the Change or Suppression (Conversion) Practices Prohibition Act might be, or might be perceived to be, a subtle, indirect attempt to suborn the evidence of the witnesses referred to in the footnotes appended to paragraph 65 of the mother’s Case Outline / written opening submissions. Counsel for the mother disavowed that possibility and I take it no further; however, I remain mystified by the inclusion of those references, which I consider to be of no relevance whatsoever to these proceedings. However, I note the following concerning evidence adduced by the Independent Children’s Lawyer regarding any treatment that may not be considered to be “gender affirming treatment”, and therefore contended possibly to contravene the Change or Suppression (Conversion) Practices Prohibition Act:
·At paragraph 75 of her report annexed to her affidavit filed 11 April 2023, Dr O states:
Some make claims that alternative approaches, such as I have described above, are equivalent to non-effective, harmful, unethical, and/or illegal conversion practices. I have attached a letter I sent to the [State S] Equal Opportunities and Human Rights Commission ([EOHRC]) asking this question and their response … My letter described an approach to [gender dysphoria] other than [gender affirming treatment] and, thus, provides one illustration of possible alternative approaches to [gender dysphoric] youth. In addition, it indicates that (within the uncertainties of the current law) the [EOHRC] appeared to think the approach I described would be unlikely to be counted as an illegal conversion practice.
·At paragraph 68 of his report annexed to his affidavit filed 11 April 2023, Dr M states:
Unfortunately, I am not aware of any practitioners within [State S] who are willing to undertake such an approach. Anecdotally, I have heard practitioners express concern that if they do not automatically affirm a child’s declared gender identity they would find themselves accused of “conversion therapy” as per the legislation. This is despite social transition not being beneficial or harmful, exploratory therapy being an acceptable approach worldwide, and the fact that there would be no need nor intention to “convert” [the child] to have a “cis” identity, just merely not blinding affirming and medicalising. It may be possible to find therapists who are willing to do this, but they will not be at [City K Children’s Hospital] Gender Clinic [sic].
Further, the father gave evidence that, in his endeavour to garner evidence in support of his case and in opposition to that of the mother, he had contacted very many (in fact, he said, “hundreds” of) therapists who were not interested in treating children with gender issues, because of the Change or Suppression (Conversion) Practices Prohibition Act and like pressure, until he located Dr R, based in State T, who is willing to do so.
Similarly, of no apparent relevance, was paragraph 64 of the mother’s Case Outline / written opening submissions, under the rubric “Ascertaining Gillick competence”, albeit said to be for the assistance of the Court again by way of background. The child was aged 10 years at the commencement of the trial and 11 years at the conclusion thereof. In recent days, the child attained the age of 12 years. There was no suggestion, let alone evidence, that the child is Gillick competent: see Gillick v West Norfolk & Wisbech Area Health Authority [1968] AC 112. Therefore, considerations of the kind addressed by the Full Court in Re Jamie (2013) FLC 93-547 and Re Kelvin (2017) FLC 93-809, as well as by Watts J in Re Imogen (No 6) (2020) 61 Fam LR 344, are not presently germane. The child’s views, and any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views, are but one of a plethora of factors, some statutorily prescribed, to be taken into account.
Further, at a pre-trial mention in these proceedings, on 13 December 2023, counsel then appearing for the mother referred to –
… the mainstream nature of the concerns and the extent to which the ideas challenging what was otherwise the status quo of medical science about gender dysphoria, the extent to which those ideas have taken hold in the community is something with which it is apparent this court is grappling.
(Transcript 13 December 2023, p.4 lines 15–18)
I made it clear then, and not dissimilarly again at trial, that the Court was not concerned “in what the community thinks” or ideologies, but only what, on the evidence, is in the child’s best interests. Ideology has no place in the application by courts of the law, and certainly not in the determination by courts exercising jurisdiction under the FLA of what is in a child’s best interests. That is because, in deciding whether to make a particular parenting order in relation to the child, the Court is mandated by s 60CA of the FLA, to regard the best interests of the child as the paramount consideration and, in determining what is in the child’s best interests, to consider the matters set out in s 60CC(2) and s 60CC(3). Indeed, in order for these proceedings not to become embroiled in the issue of the child’s pronouns, the child being variously referred to as “he/him”, “she/her” and “they/them”, on 12 February 2024, I ordered, inter alia, that: “The child the subject of these proceedings, DEVIN born 2013, be referred to in these proceedings either as ‘the child’ or as ‘[Devin]”.
In Re Jamie at [108], Bryant CJ, with whom Finn and Strickland JJ agreed, said:
In summary, I conclude that stage one treatment of childhood gender identity disorder is reversible, is not attended by grave risk if a wrong decision is made, and is for the treatment of a malfunction or disease, being a psychological rather than physiological disease. As such, and absent controversy, it falls 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.
Insofar as her Honour referred, in 2013, to Stage 1 treatment of childhood gender identity disorder, namely, puberty blockers, being “reversible [and] not attended by grave risk if a wrong decision is made”, the evidence in this case adduced by the father and the Independent Children’s Lawyer gives rise to the need to consider whether those findings, based on medical evidence a decade ago, remain factually correct for the determination of this case. However, it is not for a court at first instance to consider, or even opine, in relation to the correctness of the legal principles established by the Full Court, which are binding upon it pending any further appellate reconsideration.
Seven years later, in Re Imogen at [5], Watts J said:
Whilst this case is heard in the context of an emerging debate about the diagnosis and treatment of Gender Dysphoria, the outcome is focused upon an assessment of Imogen's particular circumstances.
At [57], his Honour also referred to the “proliferation of academic and other writings since Re Kelvin and the emergence of alternative thinking about treatment and questions arising from the state of knowledge in respect of the long-term implications of current medical treatment for Gender Dysphoria”.
With the exception of the name of the child in that case, his Honour’s observations at [5] can apply to this case. Relevant to what Watts J referred to as the “emerging debate about the … treatment of Gender Dysphoria” in 2020, was the claim in Version 1.2 of the Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents (“the ASCTG”), authored by Associate Professor L et al, to which his Honour referred at [24] that “the effects of puberty suppression is [sic] reversible whilst acknowledging both that the main concern relates to the impact upon bone mineral density and that the long term impact on bone mineralisation is currently unknown”. At trial, Version 1.4 of the ASCTG was tendered by the father (Exhibit F-13). Whilst termed, or commonly known as, the “Australian Standards”, they do not have the approval or imprimatur of the Commonwealth or any State or Territory Government, including any such government Minister for, or Department of, Health.
EVIDENCE
In addition to herself, the mother adduced evidence from:
·Dr N, senior clinical psychologist at the CHGS;
·Associate Professor L, paediatrician, Chief of Medicine at the Children’s Hospital and the former Director of the Department of Adolescent Medicine; and
·Dr U, a child and adolescent psychiatrist.
Of those witnesses, Dr U was not required for cross-examination.
In addition to himself, the father adduced evidence from:
·Ms V, the father’s partner;
·Dr W, clinical psychologist;
·Dr Q, consultant psychologist and psychotherapist;
·Mr Y, consultant psychologist and family therapist; and
·Dr Z, clinical psychologist.
Of those witnesses, Mr Y and Dr Z were not required for cross-examination. The father also filed an affidavit of Dr P, paediatrician, annexing a report by him. However, this report was ultimately not relied upon by the father at trial and it is agreed by all parties that it not be taken into account. Similarly, in final submissions, no reliance was placed upon the evidence of Dr Q.
The Independent Children’s Lawyer adduced evidence from:
·Dr O, consultant psychiatrist and psychotherapist;
·Dr M, general paediatrician;
·Ms LL, psychologist, and author of the Family Reports in this matter;
·Mr CC, clinical child psychologist;
·Dr BB, consultant psychiatrist, who conducted psychiatric assessments of the parents and prepared reports thereon; and
·Ms DD, a parenting co-ordinator appointed for the parents pursuant to orders of the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia (Division 2) was then called) made in 2020, who prepared a report in relation thereto.
Of those witnesses, Mr CC, Dr BB and Ms DD were not required for cross-examination.
As will be evident from the dates of the trial, specified above, the hearing proceeded over 20 days in total. A voluminous number of exhibits were tendered. I do not propose to refer to, or to repeat, either in full or at any length, all of the evidence in these reasons for judgment. It would be nigh impossible to do so and, if it were possible, these reasons would be far longer than they already are. I have read the affidavits and, where the deponents have been cross-examined, I have heard their evidence tested, and I have taken all of the evidence into account (including the exhibits tendered) in reaching my judgment, even if not referred to specifically. By reason of the length of the trial, the complexity of the issues and the extent of the evidence, these reasons for judgment already are longer, and have taken longer to publish, than I would have wished.
It is not necessary for a trial judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, Mahoney JA said:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
BACKGROUND
The mother was born in 1973. She resides in Town G, in Region H, in State S.
The father was born in 1974. He resides in Suburb J, in City K.
The parents commenced cohabitation in 2000 and separated in or about early 2017. The mother has not re-partnered. The father has been in a relationship with Ms V, with whom he now lives, since early 2019.
At the time of the parents’ separation, the child was nearly four years of age. Later that year, interim parenting orders were made which provided, inter alia, for the child to live with the mother and spend limited time with the father. About a year later, on 27 November 2018, final parenting orders were made by consent (“the 2018 parenting orders”) which provided for the parents to have equal shared responsibility for the child and for the child to live with the mother and spend gradually increasing time with the father, culminating in time on alternate weekends and during school holidays.
Peace between the parties did not reign for long, if it ever did. Less than a year later, on 12 September 2019, the mother filed an Initiating Application instituting these further proceedings. This trial having commenced on 12 February 2024, s 65DAAA of the FLA (as it presently stands) is inapplicable. Understandably in the particular circumstances, neither parent, at any stage, has contended that the principles in Rice v Asplund (1979) FLC 90-725 are applicable to any aspect of the current proceedings.
Less than a fortnight after the mother instituted these proceedings, orders were made on 24 September 2019 which noted the parents’ agreement that the child should engage with and undertake therapeutic counselling with EE Service, described by the mother as “an organisation dedicated to upholding the wellbeing and mental health of [City K’s] LGBTIQ+ community” (at paragraph 71 of her affidavit filed 14 March 2023).
Since the parents’ separation, including since the 2018 parenting orders, interim and final intervention orders have been made against the father, on application by, or on behalf of, the mother, for the purported protection of the child and/or herself. The Court takes allegations of family violence seriously and, where made, findings thereof even more so. Nevertheless, family violence and any relevant inferences that can be drawn from family violence orders are but two of the factors required by s 60CC of the FLA to be taken into account. Like fingerprints, no two cases are the same and the weight to be accorded to those factors will vary from case to case.
The child attends FF School in Region H, near the mother’s home, and was in Year 5 there at the time of trial. Pursuant to Order 3 of interim consent orders made on 7 June 2024 (amended on 25 July 2024), the child currently lives with the mother and spends time with the father during school terms each alternate weekend, from the conclusion of school on Friday (or 3.30pm in the event of a non-school day) until the commencement of school on Monday (or 9.00 am in the event of a non-school day). During the second and third gazetted school term holiday periods in 2024, the child was to spend time with the father from the conclusion of school on the last day of term until 5.00 pm on the Saturday of the middle weekend. During the 2024/2025 gazetted long summer school holidays, the child was to spend time with the father each alternate week, commencing from the conclusion of school on the last day of Term 4 (being 20 December 2024) with changeover at 5.00 pm seven days thereafter.
GENDER INCONGRUENCE / DYSPHORIA
The eleventh revision of the International Classification of Diseases (“ICD-11”) (Exhibit M-3) defines gender incongruence as being –
… characterised by a marked and persistent incongruence between an individual’s experienced gender and the assigned sex. Gender variant behaviour and preferences alone are not a basis for assigning the diagnoses in this group.
Gender incongruence of childhood is defined in ICD-11 as being –
… characterised by a marked incongruence between an individual’s experienced/expressed gender and the assigned sex in pre-pubertal children. It includes a strong desire to be a different gender than the assigned sex; a strong dislike of the child’s part of his or her sexual anatomy or anticipated secondary sex characteristics and/or a strong desire for the primary and/or anticipated secondary sex characteristics that match the experienced gender; and make-believe or fantasy play, toys, games, or activities and playmates that are typical of the experienced gender rather than the assigned sex. The incongruence must have persisted for about 2 years. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis.
The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) (Exhibit M-4) defines gender dysphoria as referring to “the distress that may accompany the mismatch between one’s assigned gender and how a person perceives their true gender” and states that whilst there is “tension within the field as to how best to conceptualize [sic] the disorder … the fundamental nature of the disorder – distress about one’s assigned gender – remains a consistent and unifying feature”.
Gender dysphoria in children is defined in DSM-5 similarly as being “characterized [sic] by marked incongruence between the person’s assigned gender and their expressed gender”. The diagnostic criteria set out in DSM-5 for gender dysphoria in children are:
A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 [sic] months’ duration, as manifested by at least six of the following (one of which must be Criterion A1):
1.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).
2.In boys (assigned gender), a strong preference for cross-dressing or simulating female attire; or in girls (assigned gender), a strong preference for wearing only typical masculine clothing and a strong resistance to the wearing of typical feminine clothing.
3.A strong preference for cross-gender roles in make-believe play or fantasy play.
4.A strong preference for the toys, games, or activities stereotypically used or engaged in by the other gender.
5.A strong preference for playmates of the other gender.
6.In boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities.
7.A strong dislike of one’s sexual anatomy.
8.A strong desire for the primary and/or secondary sex characteristics that match one’s experienced gender.
B.The condition is associated with clinically significant distress or impairment in social, school, or other important areas of functioning.
As referred to below, there is disagreement between the experts relied upon by the mother, on the one hand, and the father and the Independent Children’s Lawyer, on the other hand, in relation to whether the child meets the ICD-11 criteria for gender incongruence of childhood and/or the DSM-5 criteria for childhood gender dysphoria. It is not entirely clear, on the evidence, whether dysphoria is further along a continuum than incongruence or merely akin to a synonym therefor. However, I note that in the Cass Report it is stated (at paragraph 14.15) that, in relation to international guidelines for the use of puberty blockers for gender dysphoria, there is considerable variation regarding the criteria for starting puberty blockers, with the most common being the presence of gender dysphoria that has emerged or worsened at puberty, and only two guidelines specifying “the need for gender incongruence rather than dysphoria”. I am fortified in so concluding as, in the Cass Report, in considering the definitions of gender incongruence (ICD-11) and gender dysphoria (DSM-5), it is reported that “[y]ounger children with gender incongruence may not experience dysphoria, but it commonly arises or increases as they enter puberty” (Cass Report p. 18).
Dr N, at paragraph 67 of her report dated 15 January 2024 (“January 2024 report”) and annexed to her affidavit filed that day opines that:
The ICD-11 classification of Gender incongruence of childhood is often the preferred set of diagnostic criteria as it is less reliant on out-dated gender-based stereotypes for young people. Furthermore, the ICD-11 diagnosis sits within the “Conditions related to sexual health” chapter as opposed to the “Mental and behavioural disorders” chapter, which previously served to perpetuate stigma and misunderstandings that negatively affect trans people.
(Emphasis in original)
Notwithstanding the mother’s assertion in her trial affidavit filed on 27 February 2023 (at paragraph 25) that prior to the 2018 parenting orders, “issues in relation to [the child’s] gender identity had begun to emerge” and that the child had “been transitioning gender prior to the date of the Orders”, there is simply no corroborative evidence thereof whatsoever. There is no suggestion it formed any part of, or was raised in, the earlier parenting proceedings, culminating in those orders, or that it was even mentioned in the Family Report of Mr GG dated 2 November 2017.
The child first attended upon Dr N on 6 February 2020. Nearly four years later, by 15 January 2024, the child had attended only 15 sessions in total with Dr N, approximately once every three months, always accompanied by the mother. Dr N’s evidence in her January 2024 report (at paragraph 76) is that, pursuant to the father’s requests, she “invited” the child, several times, to engage in joint appointments with him but that, on each occasion, the child communicated discomfort with this idea and did not want to attend appointments with the father “yet”.
She opines (at paragraph 68) that the child meets the ICD-11 criteria for gender incongruence of childhood.
However, she reports (at paragraphs 69–70) that, “as reports submitted by some other professionals involved in this matter” queried her choice of diagnostic criteria and whether the DSM-5 criteria were met, she subsequently ascertained that the child also meets the DSM-5 criteria for gender dysphoria in children.
At paragraph 30, Dr N reports:
[The child] has clearly communicated about her [sic] enduring female gender identity and her [sic] need to have this affirmed. She [sic] describes a stable and enduring sense that her [sic] gender identity is different from the gender assigned to her [sic] at birth (i.e., male). For example, when looking at an image of the “Gender Unicorn” … [the child] indicated her [sic] gender identity is “female/girl”. When I asked [the child] whether she [sic] has times when she [sic] thinks or feels differently about her [sic] gender identity, she [sic] answered “No, it's always female. Male never really felt right”.
Exhibit C-2, which was tendered by consent of all parties, is a document titled “Questions considered by the experts and Answers provided during the Conference of Experts”, comprising Associate Professor L, Dr U, Dr N, Dr Q, Dr P, Dr R, Dr O, Dr M and Mr CC, compiled by the Independent Children’s Lawyer and dated 11 December 2023 (“the Conference of Experts document”). Dr N is the only one of the experts upon whom the child has attended.
In relation to whether the child currently meets the criteria for gender incongruence of childhood (ICD-11) or childhood gender dysphoria (DSM-5), the Conference of Experts document records that the only experts to answer unreservedly in the affirmative were Dr N and Dr U, upon whom the mother also relies. Associate Professor L, who is the other expert witness for the mother, was unable to answer those questions, not having undertaken her own assessment of the child. Similarly, Dr Q and Dr R, for the father, were unable to answer the question, due to there being insufficient evidence or information to make such an assessment, it being Dr R’s opinion that it can be easy to meet the criteria. Dr P (for the father) and Dr O, Dr M and Mr CC (for the Independent Children’s Lawyer) all responded in the negative. Whilst the evidence of Dr Q and Dr P, in their reports annexed to their affidavits, was ultimately not relied upon at trial, there is no suggestion that their opinion in the Conference of Experts document is to be disregarded. It therefore falls to the Court to determine this issue, on the balance of probabilities, albeit that, even if the Court were to make a finding of gender incongruence of childhood or childhood gender dysphoria, that would be in no way determinative of the issue of puberty blockers. The resolution of these questions is a matter of the quality of the evidence, and not the quantity of the witnesses.
In relation to the related question of whether there is substantial scientific evidence that gender incongruence of children in childhood is, in the majority, persistent, Dr N and Dr U responded in the affirmative, as did Associate Professor L who expressed the opinion that it does persist in the majority of children. All of the other experts responded in the negative. Dr Q commented that the majority of children desist and resolve gender incongruence as they go through puberty. In the opinion of Dr P, according to the DSM-5, most do not persist. In the opinion of Dr R, on the evidence, the answer is in the negative.
Other than the immediately preceding report by Dr N, dated 27 February 2023 (“February 2023 report”) (which only referred to ICD-11), the earlier reports prepared by her dated 11 August 2020, 15 December 2021 and 8 March 2022, do not suggest that the child had previously been assessed for, let alone diagnosed with, gender incongruence or dysphoria, rather than the mere possibility thereof (referred to in the report dated 15 December 2021 at paragraph 4) being adverted to. Indeed, as at 11 August 2020, Dr N makes clear that the child had not been diagnosed with gender dysphoria but, rather, presented with some stereotypically feminine interests and preferences which she referred to as being “gender expansive”. That is a descriptor by which the father and the Independent Children’s Lawyer abide.
At issue in this case is not only Dr N’s diagnosis that the child, prima facie, might meet the ICD-11 criteria for gender incongruence of childhood or the DSM-5 criteria for gender dysphoria in children, but also how she came to so diagnose the child. To that end, she was extensively and revealingly cross-examined, in particular by Senior Counsel for the Independent Children’s Lawyer.
The father and the Independent Children’s Lawyer both submit and, for the reasons below, I agree, that the evidence of Dr N, over five days at trial, revealed significant issues with the diagnostic process undertaken by her and the conclusions reached by her.
In her report dated 4 April 2023 (“April 2023 report”) at paragraph 3, Dr O reports that “[Dr N’s] reports do not provide any details of the biopsychosocial assessment that was reportedly undertaken” and that a “biopsychosocial formulation has not been provided”. There is no evidence that Dr N did conduct a biopsychosocial assessment of the child, or refer the child for the same, despite conceding that, across the child’s engagement with the CHGS, both parents (but especially the father) had, at different times, raised issues that suggested such an assessment was indicated. She conceded in cross-examination that there could be benefit in the child undergoing an assessment for autism spectrum disorder (Transcript 28 May 2024, p.66 lines 2–3). Therefore, insofar as it is submitted on behalf of the mother (at paragraph 12 of her written submissions) that Dr N, previously reported in the January 2024 report, inter alia, that there had been no indication that the child had difficulties, such as attention deficit hyperactivity disorder or with adaptive behaviour that required specialist assessment; that the child had not been rated within the clinical range for syndromes of anxiety/depression, withdrawal, social problems, thought problems or attention problems; and that, whilst the child had exhibited signs of elevated anxiety at times, some separation anxiety and features of generalised anxiety, this was not viewed as existing as an independent clinical anxiety disorder, I place little weight thereon, given Dr N's subsequent concessions in cross-examination. Although Dr N rejected the proposition of causation of gender incongruence, such as by reason of autism spectrum disorder, that is against the weight of the evidence in this case, even if only as to the inter-relationship or commonality between the two conditions. Even if it be only a possibility, given the gravity of the issue and the ramifications thereof, it would have behoved her to undertake an assessment therefor and, more broadly, a biopsychosocial assessment of the child.
In the course of cross-examination, the analysis of Dr N’s notes, produced upon subpoena, significantly undermined key descriptions of diagnostic elements, such as “consistent, persistent female identity” (the February 2023 report p.3). Contrary to that diagnostic element, in an email from Dr N to the father dated 14 September 2021 (Exhibit ICL-40), she advised the father that since the child first became involved at the CHGS 18 months previously –
… he [sic] presents as gender expansive. And while [the child] has never spoken at length with me about identifying as gender diverse (whether that be gender neutral, female or another identity) he [sic] has never said that he [sic] feels consistently cisgender, either. …
It is difficult to reconcile that with the child manifesting a consistent and persistent female identity. It is even more difficult to reconcile that with the mother having told Dr N, in a telephone conversation, less than a month earlier, on 31 August 2021, that she felt there may be a “need to proceed down a legal avenue for approval to [sic] blockers” and that “at the start of [the child’s] wondering about gender identity he [sic] used to say ‘maybe I’m part boy and part girl’ and since then has identified as a female and ‘has not wavered’ from that experience” (Exhibit ICL-39).
Similarly, Dr N’s note of a telephone conversation with the mother, on 2 February 2023, refers to how the child’s “gender identity needs to be affirmed” and what the child “would like as an outcome” (Exhibit ICL-16).
The Independent Children’s Lawyer also points to Dr N’s diagnosis having been undertaken by her in the context of the child’s attendance at the CHGS since the age of six years, issues being discussed with the child in a gender affirming treatment model, the child living in the maternal gender-affirming home environment and being significantly (if not fully) socially transitioned prior to diagnostic assessment.
It is incontestable, on the mother’s evidence, that the child does live in a gender affirming home environment with the mother. It is not necessary, for the purpose of these reasons for judgment, for the Court to pass comment generally upon the gender affirming treatment model adopted and implemented by the CHGS. Of relevance, rather, is the impact, if any, of that model upon the child and the child’s disputed diagnosis.
Associate Professor L wrote the first draft and approved the final draft of the ASCTG and it is a work of which she said she is proud. Insofar as Associate Professor L relies upon the ASCTG, describing it as “best practice” (report dated 12 September 2023 at paragraph 2), and as the “most progressive and trans-affirming guidelines” (affidavit filed 13 September 2023 p.5) in Australia, I approach her evidence in this regard with caution, in the circuitous circumstances where she is the lead author thereof. By way of analogy, it might be said to be akin to a judge expressly relying upon an earlier first instance decision of his or hers as authority for a particular proposition. As I observed during the hearing, of which observation I was reminded in closing submissions, she is akin to being the proverbial “judge, jury and executioner”. Indeed, in cross-examination, Associate Professor L conceded that her opinion that the ASCTG is “best practice” was essentially tantamount to her agreeing with herself. Insofar as Dr N relies upon the ASCTG, I similarly approach her evidence in this regard with caution in circumstances where Associate Professor L is her superior at the CH and Dr N would otherwise be disagreeing with her.
The introduction to the ASCTG states:
The Australian Standards of Care and Treatment Guidelines (ASOCTG) aim to maximise quality care provision to trans and gender diverse children and adolescents across Australia, whilst recognising the unique circumstances of providing such care to this population. Recommendations are made based on available empirical evidence and clinician consensus, and have been developed in consultation with professionals working with the trans and gender diverse support organisations, as well as trans children and adolescents and their families. They have been endorsed by the Australian Professional Association for Trans Health (AusPATH), the peak organisation in the region actively promoting communication and collaboration amongst professionals of all disciplines involved in the healthcare, rights and wellbeing of people who identify as trans or gender diverse.
There are potential challenges in accessing trans and gender diverse healthcare for the Australian population. This is especially the case for children and adolescents who are vulnerable due to cultural and linguistic diversity (including Aboriginal and Torres Strait Islander populations), out of home care, intellectual disability, or detention within the youth justice system. Australia’s vast geographical distances create further barriers to treatment access for those living in rural and regional locations.
With increasing visibility and social acceptance of gender diversity in Australia, more children and adolescents are presenting to community and specialist healthcare services requesting support, advice and gender affirming psychological and medical treatment. A large population-based study undertaken in New Zealand in 2012 estimated that approximately 1.2% of adolescents identify as transgender and it is therefore likely that referrals to healthcare professionals will continue to rise in the foreseeable future.
Being trans or gender diverse is now largely viewed as part of the natural spectrum of human diversity. It is, however, frequently accompanied by significant gender dysphoria (GD), which is characterised by the distress that arises from incongruence between a person’s gender identity and their sex assigned at birth. It is well recognised that trans and gender diverse individuals are at increased risk of harm because of discrimination, social exclusion, bullying, physical assault and even homicide. Serious psychiatric morbidity is seen in children and adolescents. A study of the mental health of trans young people living in Australia found very high rates of ever being diagnosed with depression (74.6%), anxiety (72.2%), post-traumatic stress disorder (25.1%), a personality disorder (20.1%), psychosis (16.2%) or an eating disorder (22.7%). Furthermore 79.7% reported ever self-harming and 48.1% ever attempting suicide.
Increasing evidence demonstrates that with supportive, gender affirming care during childhood and adolescence, harm can be ameliorated and mental health and wellbeing outcomes can be significantly improved.
As mentioned above, the recommendations made in this document are based primarily on clinician consensus, along with previously published standards of care from the World Professional Association for Transgender Health (WPATH), treatment guidelines and position statements, and finding from a limited number of non-randomised clinical studies and observational studies. It is clear that further research is warranted across all domains of care for trans and gender diverse children and adolescents, the findings of which are likely to influence future recommendations.
(Footnotes omitted).
The ASCTG defines the following terms:
Gender identity: A person’s innermost concept of self as male, female, a blend of both or neither. One’s gender identity can be the same or different from their sex assigned at birth.
Gender expression: The external presentation of one’s gender, as expressed through one’s name, clothing, behaviour, hairstyle or voice, and which may or may not conform to socially defined behaviours and characteristics typically associated with being either masculine or feminine.
Gender diverse: A term to describe people who do not conform to their society or culture’s expectations for males and females. Being transgender is one way of being gender diverse, but not all gender diverse people are transgender.
The ASCTG sets out the “general principles for supporting trans and gender diverse children and adolescents”, including the following:
Individualise care
Every child or adolescent who presents with concerns regarding their gender will have a unique clinical presentation and their own individual needs. The options for intervention that are appropriate for one person might not be helpful for another. For example, although many trans and gender diverse individuals may benefit from both hormonal intervention and surgery, some may choose only one of these options, and others may decide to have neither. The importance of tailoring interventions is especially true for those expressing a non-binary gender identity, but equally applies to those who present with a trans male or trans female identity. Consistent with the above, decision making should be driven by the child or adolescent wherever possible, and this applies to options regarding not only medical intervention but also social transition.
Use respectful and affirming language
Understanding and using a person’s preferred name and pronouns is vital to the provision of affirming and respectful care of trans children and adolescents. Providing an environment that demonstrates inclusiveness and respect for diversity is essential, with Australian research reporting that healthcare environments experienced as discriminatory for trans and gender diverse people are correlated with poorer mental health outcomes. Some children or adolescents may request use of a preferred name or pronoun only in certain circumstances, such as when their parents are, or are not, present in the room. This is important to respect and enact to enable optimal patient-clinician engagement, and ensure confidentiality and patient safety.
Avoid causing harm
Avoiding harm is an important ethical consideration for health professionals when considering different options for medical and surgical intervention. Withholding of gender affirming treatment is not considered a neutral option, and may exacerbate distress in a number of ways including increasing depression, anxiety and suicidality, social withdrawal, as well as possibly increasing chances of young people illegally accessing medications.
In the past, psychological practices attempting to change a person’s gender identity to be more aligned with their sex assigned at birth were used. Such practices, typically known as conversion or reparative therapies, lack efficacy, are considered unethical and may cause lasting damage to a child or adolescent’s social and emotional health and wellbeing.
Consider sociocultural factors
Fear of experiencing stigma and discrimination by health professionals can be a barrier for trans and gender diverse individuals in accessing general medical healthcare as well as treatment directly related to gender dysphoria. Indigenous trans and gender diverse Australians experience problems of racism and gender related discrimination in the broader Australian context as well as transphobia within traditional community groups, which adds an additional barrier to treatment access. It is also important to recognise difficulties that may exist for children or adolescents and their families who belong to particular religious or cultural groups. In these circumstances, beliefs and values may be at odds with a gender affirming approach and may prevent them from accessing support within their local community.
Of particular relevance, and concern, in this case are the stated principles that the “[w]ithholding of gender affirming treatment is not considered a neutral option” and the related references to “psychological practices attempting to change a person’s gender identity to be more aligned with their sex assigned at birth” lacking efficacy, being considered unethical and possibly causing lasting damage to a child or adolescent’s social and emotional health and well-being. Whilst in no way howsoever endorsing the practices referred to, and identified, as “conversion or reparative therapies”, it is concerning that an oddly binary approach is adopted in relation to children, especially of the age of the child the subject of these proceedings; that is, to affirm unreservedly those who present with concerns regarding their gender, brooking no questioning thereof. The case of the mother, supported by the evidence of Dr N, is that because the child says so, the child is, and must unquestioningly be affirmed as being, female in gender identity. However, that overlooks the obvious, namely, that the child is still a child and not even, if it matters, a teenager.
Further, relation to the child living in a gender affirming home environment with the mother, and the impact thereof on Dr N’s diagnosis of the child, there is extensive evidence that, in her care, and with her approval, the child has become immersed, through HH Service, in Region H where the child and she live, in a social circle dominated by transgender young people who are older than the child and are undergoing various stages of affirming treatment. The mother first introduced the child to HH Service, which she described as being a support group for “families and allies” of transgender children, including at the young age of six years. She conceded in cross-examination that it is the child’s and her main social support group at present. Further, it was through this group, and a workbook with a “trans focus”, that the child first became aware of puberty and the concept of puberty blockers. Indeed, in cross-examination, Dr N accepted the possible contextual/environmental influence upon the child of other children and young people at HH Service. Whilst this concession was made in the context of discussions or comments regarding puberty blockers, it is nevertheless a concession regarding possible contextual/environmental influence upon the child.
Having heard and observed each of the parents in cross-examination, I find that the mother holds a severely distorted, inaccurate and negative view of the father and, as such, she cannot, and will not, view anything that he proposes in a positive light. Whilst I find that the father has considerable concerns regarding proposals for the child that emanate from the mother, and sees these in a jaundiced light, he demonstrates a greater capacity to focus upon the child’s needs, rather than on simply opposing the mother per se. Further, on the evidence, I find that these concerns on the part of the father are not necessarily misplaced, especially in relation to the child’s gender-related issues.
In circumstances where no party, including the Independent Children’s Lawyer, suggests that, in light of the history of the parents, they can make joint decisions in relation to the child’s gender identity, the evidence provides considerably more support for the father holding sole decision-making authority in relation thereto.
Given my findings regarding the child’s engagement at the CHGS, both to date and in the future, if it were to be allowed, and the benefits to the child of being assessed and treated neutrally, by a clinical child psychologist such as Dr R, as the father proposes, rather than in accordance with the gender affirming treatment model (including medical treatment) advocated by, and on behalf of, the mother, the child will require a supported living environment which I find the mother will be unable to provide. I am comfortably satisfied, on the evidence, that the mother will not respond well to the cessation of the child’s involvement at the CHGS, in which she places her belief and faith, and the fact that the child will not undertake gender affirming treatment, including medical treatment. I consider that she will, unfortunately, likely again blame the father and communicate this to the child, as she has done in the past, with negative effects on the relationship between the father and the child.
I accept the submission by the Independent Children’s Lawyer, and find, that if the mother were to have sole parental responsibility for decisions in relation to the child’s gender identity, and to live with her, as I address further below, this would be highly likely to result in the child receiving potentially life-altering and damaging medical intervention for which there may not be a proper underlying basis.
As referred to above, albeit in the context of the s 60CC(3) considerations, I am cognisant of the fact that, on 9 March 2022, during or in the aftermath of the COVID-19 pandemic in City K, I made an order for the mother to have sole parental responsibility for the child for all decisions relating to immunisation and vaccination against COVID-19. This was in circumstances where the father had opposed such vaccinations at that time. However, when cross-examined about this, the father said that he is not opposed to medical intervention generally and I accept that this was otherwise an aberration on his part. Indeed, I am fortified in so finding by his actions in seeking ongoing information from the CHGS, notwithstanding his reservations in relation thereto, as well as evidence more broadly from other health experts in relation to the child’s gender exploration.
More broadly, given the mother’s inability or unpreparedness to work collaboratively with the father where he disagrees with and/or will not comply with her opinions and wishes, even with good reason, I consider it to be in the child’s best interests for the father to have sole parental responsibility for the child, subject to the provisos proposed by him.
RESIDENCE
Given the evidence generally, and my findings in relation to parental responsibility, I conclude that it would be extremely difficult for the mother and, therefore, for the child, if she were to retain primary residence in the face of the father having sole parental responsibility for the child, with gender affirming treatment, including medical treatment, being restrained by injunctive orders. Indeed, it is almost inconceivable, in the circumstances of this case, that the father could practicably have sole parental responsibility for the child, as I have determined should occur, whilst the child is living with the mother. I find the mother so entrenched, convinced and fixated in her unwavering belief that the child is, beyond doubt in her mind, a transgender girl, that for her to primarily care for the child without following the gender affirming treatment pathway offered at CHGS would be very difficult, if not impossible, in practice.
In her written closing submissions, the mother complains that she “was given no real opportunity to address in her evidence how [the child] may respond to the alternative ‘time spent’ arrangements, including as to displacement from [the child’s] current school and more particularly a change of residence” (at paragraph 68). It is correctly observed by her that “the Father did not seek Orders in his Court materials filed in this proceeding for what is in effect a reversal of the long-standing residence from the Father to the Mother [sic] until he filed his Case Outline on 7 February 2024” (at paragraph 69). It is manifest that this is a typographical error and that reference is intended to be made to a reversal of the long-standing residence of the child from the mother to the father. However, that complaint is misplaced; it overlooks the fact that in the father’s updating/responding affidavit filed five days earlier, on 2 February 2024, he deposed at paragraph 62: “I seek that [the child] live primarily with me” and listed several of the benefits that he contended would flow therefrom for the child.
Further, the trial did not commence until 12 February 2024, and there was no application by the mother to adduce further evidence, either by affidavit or viva voce in evidence in chief. Therefore, insofar as it is also submitted that “there was no further opportunity of the Mother to file a further affidavit” and that “there was no opportunity for the Mother to be heard in relation to the question of change of residence”, that is incorrect; there was opportunity, but it was not sought. Accordingly, I do not accept the submission that it is “procedurally unfair in the circumstances for the Court to make such significant orders for a reversal of residence”. Similarly, I do not accept the attempted criticism of counsel for the father and the Independent Children’s Lawyer for not putting any questions to Dr N with respect to the impact on the child of a change of residence; that was a matter more within the province of Ms LL, and I take her evidence in this regard into account. Dr N gave evidence on 19, 20 and 21 February 2024 and 27 and 28 May 2024. The mother and her lawyers were on notice of the father’s application for a change of residence since 7 February 2024, foreshadowed five days earlier, and yet there was no application to lead any further evidence from Dr N in relation thereto.
I do not accept the mother’s submission (at paragraph 82 of her written closing submissions) that the father appears to have given little thought as to the significant impact on the child’s well-being, should there be a change of residence. He is cognisant of the potential challenges, both for the child and for him. He has researched and identified a primary school and a secondary school that, by all accounts, will be appropriate for the child. The evidence is, and the father accepts that, in addition (and possibly related) to the child’s exploration of gender identity, the child also suffers from (at least) anxiety. I have no concerns that the father, both personally and with the support of Ms V, is well equipped and able to be the primary carer for the child. He has identified a clinical psychologist, Dr R, who will provide any necessary therapy and support for the child. He will take the child to State T, from time to time, to attend upon Dr R in person. He is in a stable and loving relationship with Ms V, in respect of whom it is submitted on behalf of the mother that: “It is pleasing that the Father has the support of [Ms V] and that she appears to have a positive relationship with [the child]” (paragraph 84 of the mother’s written closing submissions).
The mother submits, under the rubric of the impact on the child of a change of residence, that if the Court accedes to the father’s application, the child “will not have the option of receiving medically affirming care”. However, I have concluded that, at this stage in the child’s life, the child should not have that option. As the child progresses and develops, including in age and maturity (and becomes Gillick competent), as well as in diagnosis (if any, hereafter), that may change.
In all the circumstances, including by reason of my determination that the father should have sole parental responsibility for the child, I conclude that it is in the child’s best interests to live with the father hereafter, notwithstanding (and having taken into account) the potential initial distress to the child of such change.
In relation to how the child should be told of the change of residence, Ms LL said that, ideally, both parents should be involved but that, if this is not possible, the primary carer (whom I conclude to be the father hereafter) should do so. She opined that the father could do so in a thoughtful manner and, having had the singular benefit of hearing his evidence and observing him in the course thereof, I do not disagree.
Subsequently, in oral closing submissions, Senior Counsel for the Independent Children’s Lawyer proposed that, if a change of residence were ordered, the Independent Children’s Lawyer and/or Ms LL, if available, should meet with the child for this purpose. However, the child last saw Ms LL in January 2023, over two years ago. The mother proposes a Court Child Expert do so, rather than Ms LL. In the circumstances, given the timing of the delivery of these reasons for judgment (namely, the penultimate day of Term 1), and the uncertainty as to the availability of Ms LL at this time, I consider the involvement of a Court Child Expert, together with the Independent Children’s Lawyer, to be appropriate.
Whilst a change of residence is contrary to the child’s currently overtly expressed wishes, and the child will need to be supported to adjust to these changes, I find that the child’s best interests, including the need to protect the child from potential significant harm, require this and I am confident that the father and his partner have, and will exercise, the capacity to sensitively support the child through this adjustment, including with the assistance of Dr R or a like expert.
I have, in recent days, in anticipation of the delivery of this judgment, ordered the child to be brought to the Court’s child-minding service this morning. The child will leave Court today with the father. I am cognisant that Term 1 concludes tomorrow. The father may wish to give consideration to taking the child to school tomorrow to farewell friends and teachers, but I shall not order him to do so. The child will commence Term 2 at B School and secondary school in 2026 at C School.
TIME TO BE SPENT
Each parent and the Independent Children’s Lawyer agree that the child spend time with the other parent, during school term periods, each alternate weekend from the conclusion of school, or 3.30 pm if a non-school day, on Friday, until the commencement of school, or 9.00 am if a non-school day, on Monday (or Tuesday, if Monday be a student-free/curriculum day or a public holiday).
As I have observed above, in circumstances where the mother lives in Town G, in Region H in State S and the father lives in Suburb J, in City K, which are located approximately 85 kilometres one from the other, the reality is, and is conceded by the parties to be, that the child will not be able to spend more than alternate weekends with that other parent during school terms.
A minute of proposed orders by consent has been provided by the parties and orders will be made substantially in the terms thereof, amended only to give effect to these reasons for judgment (and as to matters of form, grammar and syntax). The consent orders deal, inter alia, with the time to be spent by the child with the parents during school term and long summer holidays (other than at Easter, which I consider below), and on special occasions.
The minute of consent orders also contains provisions in relation to school and extra-curricular enrolments, changeover, communication between the child and each of the parents, the provision/obtaining of information in relation to the child, travel by each of the parents with the child and other miscellaneous issues.
Neither the father, nor the Independent Children’s Lawyer, seek any moratorium of any specified length on the child’s time with the mother. However, in circumstances where the child will be changing residence and schools, I consider it to be in the child’s best interests for the child not to spend any time with the mother during the immediately forthcoming Term 1 school holidays (which include Easter) this year. This will allow the child to settle into both the father’s care, as well as the prospect of a new school in about a fortnight’s time, at the commencement of Term 2 and, accordingly, the mother’s time will commence on the first Friday of Term 2.
The only outstanding issue in relation to time to be spent by the child with each of the parents, not the subject of consent, is at Easter which, by reason of the timing thereof, is inter-related with the time to be spent in the Term 1 holidays.
The mother seeks that:
i.In the event that Easter does not fall during the first weekend of the Term 1 holidays, then from the conclusion of school on the last day of term to 5:00pm on the Saturday of the middle weekend;
ii.In the event that Easter does fall during the first weekend of the Term 1 holidays, then for eight consecutive nights commencing at 10:00am Easter Sunday and concluding at 10:00am the following Monday;
…
Thus, the mother seeks to divide the Easter weekend.
The father seeks that, at Easter, the child spend time with the parents as follows:
i.In odd numbered years with the father from the conclusion of school or 3.30pm on the Thursday preceding the Easter weekend, until the commencement of school on Tuesday, or 9.00am if a non-school day.
ii.In even numbered years with the mother from the conclusion of school or 3.30pm on the Thursday preceding the Easter weekend, until the commencement of school on the following Tuesday, or 9.00am on a non-school day.
Thus, the father seeks to alternate the Easter weekend.
The Independent Children’s Lawyer proposes that, in respect of the Term 1 school holidays, so as to incorporate Easter, changeover take place at 12 noon on the middle Saturday, and that the child spend “the week containing the Easter weekend” with each of the parents in alternating years.
Neither parent adduced any evidence, nor made any submissions, in relation to Easter, yet they seek that the Court determine this apparently important issue, albeit in a vacuum. I consider that the proposal put forward by the Independent Children’s Lawyer to be in the child’s best interests as it incorporates Easter into the time to be spent by the child with each of the parents in the Term 1 school holidays in each alternate year, providing for certainty and removing an area of potential dispute between them. Accordingly, I shall make orders to the effect of those proposed by the Independent Children’s Lawyer.
OTHER ISSUES
Notwithstanding that the father is seeking sole parental responsibility for the child, subject to the provisos proposed by him, namely, for the provision of notice and information by him to the mother and the consideration by him of her views in relation to “any significant long-term decision for the child”, which orders shall effectively be made, he nevertheless proposes that the parents do all acts and things to enrol the child in and facilitate the child attending B School until the conclusion of primary school and C School, for the child’s secondary education. The orders for sole parental responsibility would ordinarily confer upon him the authority to do so. Whilst the mother seeks an order for the enrolment of the child at QQ School for the child’s secondary education, that is clearly predicated upon the order she seeks, but which will not be made, for the child to live with her. I have considered above the father’s evidence in relation to his reasons for his proposal of the named schools and found them to be in the child’s best interests. No submissions, or alternative proposals, were made by the mother in the event of a change of residence.
However, insofar as the father seeks an order that “any enrolment and tuition fees and compulsory levies … be shared equally” between the parents, there is no application before the Court for departure from administrative assessment of child support or for the provision of child support otherwise than in the form of periodic amounts and, therefore, there is no jurisdiction for such an order to be made.
The parties are in agreement that each of the parents personally and by their servants and agents be restrained from:
a.doing or saying anything to the child or in the presence or hearing of the child that is derogatory of the other parent; or
b.denigrating, abusing or belittling each other in the presence or hearing of the child.
Such an order will be made by consent. However, the mother seeks a further order, which is apparently, but inexplicably, opposed by the father and the Independent Children’s Lawyer, albeit without any submissions in relation thereto. The mother seeks, similarly without any submissions, there also be a restraint in relation to:
… discussing any court proceedings or the contents of any documents filed with any court that relate to the parents or the child, with or in the presence of or hearing distance of the child.
It is entirely unclear why such a restraint would be opposed. Notwithstanding the absence of submissions, it is manifest that it would not be in the child’s best interests for there to be any discussions of any court proceedings, or the contents of any documents filed in any court, that relate to the parents or the child, with, or in the presence or hearing, of the child, and I shall order accordingly.
CONCLUSION
This has been a difficult case in which the Court has been greatly assisted by counsel for the parties and, in particular, their detailed written closing submissions. The Court has also been assisted by much of the expert evidence in this case, both in reports filed and in oral evidence in cross-examination, as well as many of the documents tendered, such as, but certainly not limited to, the Cass Report. The Court, in particular, acknowledges the role of the Independent Children’s Lawyer in this case, especially her assumption of the role of effective “contradictor” to garner evidence at a time when the father was self-represented in the face of the mother’s application. The Court is not unaware that, in the immediate future, the orders to be made may cause some initial distress to the child but has concluded that, notwithstanding, they are indubitably in the child’s overall best interests. The Court is also cognisant that the orders for the father to have sole parental responsibility for the child, in particular in relation (but not limited) to the child’s gender identity, and for the child to live with the father, will be difficult for the mother to accept and will be distressing for her. Nevertheless, it is to be hoped that she will come to accept what has been determined to be in the child’s best interests and to support the child accordingly.
I conclude by returning to my introductory observations. This is a case about a child, and a relatively young one at that; not one about the cause of transgender people. As this child grows, develops and matures, and explores and experiences life, the child might, with the related benefits of the passage of time and the acquisition of balanced understanding, come to identify as a transgender female and might elect to undergo some form of medical treatment, to affirm and/or align with that identity. But, similarly, with those benefits, the child might not do so, and for a variety of reasons. At this stage in the child’s life, all options should be left open, without any unacceptable risk of harm to the child. That, I have concluded, will most likely occur if the father has sole parental responsibility for the child and the child lives with him, whilst nevertheless spending regular and frequent time with the mother.
I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 3 April 2025
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