Re: Devin (No 2)

[2025] FedCFamC1F 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Re: Devin (No 2) [2025] FedCFamC1F 368

File number:

SUPRESSED BY COURT ORDER

Judgment of:

STRUM J

Date of judgment:

5 June 2025

Catchwords:

FAMILY LAW – IDENTIFICATION OF A WITNESS – Application by media organisation for approval of communication to the public of an account of proceedings under the Family Law Act 1975 (Cth) that identifies an adversarial expert witness and the hospital at which the expert is employed – Consideration of s 114Q of the Family Law Act 1975 (Cth) – Where application is unopposed – Where it is in the public interest – Where there is no potential to impact on the best interests of the child the subject of the proceedings – Embarrassment not a basis for refusal of the application – Application granted.

Legislation:

Family Law Act 1975 (Cth) ss 91, 92, 114Q, 114S, 121

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.3 and r 7.18

Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)

Cases cited:

AH & SS (2005) 34 Fam LR 24; [2005] FamCA 854

B v Minister for Immigration and Multicultural and Indigenous Affairs and Advertising Newspapers Ltd [2002] FamCA 768

CDJ v VAJ(No 2) (1998) 197 CLR 172; [1998] HCA 76

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

Hinch v Attorney‑General(Vic) (1987) 164 CLR 15; [1987] HCA 56

In the Marriage of F and R (No 2) (1992) FLC 92-314

J v L & A Services Pty Ltd (No 2) (1993) 30 ALD 791; [1995] 2 Qd R 10

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Pascoe (Liquidator), in the matter of Matrix Group Ltd (in liq) (Trustee) (No 2) [2021] FCA 426

Re CD (2024) 75 VR 559; [2024] VSC 456

Re: Devin [2025] FedCFamC1F 211

Re Lowe and Herald and Weekly Times Ltd (1995) FLC 92-592

Re R (MJ) (an infant) [1975] 2 All ER 749

Re W: Publication Application (1997) FLC 92-756

Rush v RR Pty Ltd Pty Ltd (2018) 359 ALR 473; [2018] FCA 357

Russell v Russell (1976) 134 CLR 495; [1976] HCA 23

Division:

Division 1 First Instance

Number of paragraphs:

64

Date of hearing:

5 June 2025

Place:

Melbourne

Solicitor for the Applicant:

Ms Saunders, Thomson Geer

The Respondents:

The Respondents did not appear

ORDERS

SUPRESSED BY COURT ORDER

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

NATIONWIDE NEWS PTY LTD

Applicant

AND:

THE MOTHER & THE FATHER

Respondents

ORDER MADE BY:	STRUM J
DATE OF ORDER:	5 JUNE 2025

THE COURT ORDERS THAT:

1.Pursuant to s 114Q(2)(b) of the Family Law Act 1975 (Cth) (“Act”), the communication to the public of any account of these proceedings (known as Re: Devin), including in the reasons for judgment reported at [2025] FedCFamC1F 211, that identifies “Associate Professor L” as Associate Professor Michelle Telfer and the “Children’s Hospital” as the Royal Children’s Hospital Melbourne be and is hereby approved.

2.The Application in a Proceeding filed by the applicant on 17 April 2025 (“Application”) be otherwise dismissed.

AND THE COURT NOTES THAT:

A.Nothing in this Order approves or authorises any communication to the public of any account of the proceedings that identifies any other person specified in s 114Q(1)(b) of the Act other than Associate Professor Michelle Telfer.

B.The mother has advised the Court that she does not wish to be heard or to make submissions in relation to the Application.

C.The father has advised the Court that he supports the Application but does not otherwise wish to make any submissions in relation thereto.

D.The Independent Children’s Lawyer has advised that, by reasons of the final parenting orders made on 3 April 2025, she was discharged from her appointment and that she does not consider that the Application has any impact on the best interests of the child the subject of the proceedings or warrants her involvement.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

1. On 3 April 2025, I made orders and delivered reasons for judgment in the matter of Re: Devin [2025] FedCFamC1F 211 (“Trial Reasons”), which related, inter alia, to a young child’s purported diagnosis of, and proposed Stage 1 treatment for, gender dysphoria/incongruence. I did not accept the diagnosis of, and proposed treatment by, a hospital, anonymised as the “Children’s Hospital”, nor did I accept the evidence of a paediatrician and adolescent medicine physician, anonymised as “Associate Professor L”, who is the Chief of Medicine at that hospital, and who was previously the Director of the Department of Adolescent Medicine, as well as the Director of the Gender Service, there. In my Trial Reasons, I was critical of Associate Professor L, as well as of the Children’s Hospital, including by reason of its Gender Affirming Treatment model. These reasons for judgment are to be read in conjunction with my Trial Reasons.

2. Section 114Q(1)(b)(ii) of the Family Law Act 1975 (Cth) (“Act”) relevantly provides that a person commits an indictable offence if the person communicates to the public an account of proceedings under the Act that identifies (inter alia) a witness in the proceedings. Accordingly, the name of Associate Professor L was anonymised. Further, in circumstances where Associate Professor L’s present and past roles at the Children’s Hospital were necessarily set out in my Trial Reasons, the name of that hospital was also anonymised. That enabled my Trial Reasons to be published, for example, on the websites of the Australian Legal Information Institute and Judgments and Decisions Enhanced (JADE), as is the case with judgments of this Court and other Australian courts. Although s 114S(2)(f) of the Act provides that “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)” is not a communication to the public, there is some doubt, which I do not presently need to resolve, whether and JADE are a “series of law reports or … other publication of a technical character”. However, in circumstances where judgments published on the and JADE websites are often referred to in courts, even though they are not authorised reports, this issue may require clarification by the Full Court in the appropriate case, or legislative amendment.

3. Section 114Q(2) of the Act provides that subsection (1) does not apply if the communication is “in accordance with a direction of a court; or … otherwise approved by a court”.

4. Sections 114Q of the Act was introduced by the Family Law Amendment Act 2023 (Cth), which also repealed s 121 of the Act. In relation to s 114Q(2), paragraph 413 of the Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) (“Explanatory Memorandum”) states that it –

   … permits a court to approve or direct communication that would otherwise be in breach of this section. This is to ensure that there is a power to facilitate communications in circumstances that may not be provided for by the Family Law Act but are otherwise considered necessary or appropriate by the court.

5. On 17 April 2025, Nationwide News Pty Ltd (“Nationwide News”), on behalf of The Australian newspaper, filed an Application in a Proceeding (“Application”) seeking that, pursuant to s 114Q(2) of the Act, “the publication of material identifying Associate Professor L and the Children’s Hospital in accounts of the proceeding and Re: Devin [2025] FedCFamC1F 211” be approved by the Court. It is clear on the face of the Application, and the solicitor for Nationwide News who appears this day confirmed, that such approval is sought, not only in relation to my Trial Reasons, but the proceedings more broadly.

6. I made orders on 17 April 2025 requiring that Associate Professor L and the Children’s Hospital, as interested persons, be served with the Application.

7. On 23 April 2025, the solicitors for the mother advised that she does not wish to be heard, or to make submissions, in relation to the Application.

8. On 28 April 2025, the solicitors for the father advised that he supports the Application but does not otherwise wish to make any submissions in relation thereto.

9. On 29 April 2025, the Independent Children’s Lawyer advised that, by the orders I made on 3 April 2025, she was discharged and that she does not consider that the Application “has any impact on the best interests” of the child, or warrants her involvement.

10. In the circumstances, on 29 April 2025, I made orders by consent that provided, inter alia, for:

    ·Nationwide News to file and serve an affidavit and written submissions in support of the Application on or before 7 May 2025;

    ·Associate Professor L and the Children’s Hospital to file and serve an affidavit and written submissions in relation to the Application on or before 28 May 2025; and

    ·the Application to be listed for hearing on 5 June 2025.

11. On 7 May 2025, Nationwide News duly filed and served an affidavit and written submissions. It submits, in summary, that it is necessary and appropriate for the Application to be granted because:

    ·there is a clear public interest in identifying Associate Professor L and the Children’s Hospital;

    ·so doing would not negatively impact the welfare of the child; and

    ·any embarrassment to, or damage to the reputation of, Associate Professor L is no basis for not identifying her.

12. Given the public interest argument, on 13 May 2025, I ordered the Principal Registrar of the Court to write to the Attorney-General of the Commonwealth:

    ·to inquire whether she considered that, by reason of the Application, a matter arises that affects the public interest, for the purposes of s 91(1)(a) of the Act; and

    ·to advise that, if she wished to intervene or otherwise be heard in the proceedings, she do so by 27 May 2025.

13. I further ordered that, if Associate Professor L or the Children’s Hospital wished to be heard in relation to the Application, they file and serve an application to intervene in the proceedings, pursuant to s 92 of the Act, by 16 May 2025.

14. On 16 May 2025, the Children’s Hospital, by its General Counsel, Legal Services, advised that Associate Professor L and it no longer wish to oppose the Application and, accordingly, will not apply to intervene in the proceedings. Later that day, the Principal Registrar wrote to the Attorney-General advising her of the same.

15. On 27 May 2025, the Attorney-General wrote to the Court advising that she would not be intervening in the matter.

16. The Application is therefore unopposed. Nevertheless, I must consider whether to approve the communication to the public of accounts of the proceedings in Re: Devin (which include my Trial Reasons) that identify Associate Professor L, either directly or indirectly by identification of the Children’s Hospital.

    CONSIDERATION

17. Section 114Q of the Act is in substantially similar terms to s 121, which it replaced. In particular, similarly to s 114Q(2), s 121(9)(d) provided that s 121(1) did not apply to "publication of accounts of proceedings, where those accounts have been approved by the court". Given the similarities between the repealed provision and the current provision, previous judicial consideration of s 121(9)(d) is relevant to consideration of s 114Q(2).

18. The Explanatory Memorandum states (at paragraph 412) that s 114Q –

    … reflects the need to protect the identity of persons involved in family law proceedings, including children, to avoid causing undue distress, to protect against intrusive media reporting and to protect the safety of all persons.

19. In AH & SS (2005) 34 Fam LR 24 at [29], Bryant CJ referred to a report to the Attorney-General of the Commonwealth headed Publicity in Family Law Cases, regarding proposals for amendments to s 121, in which the Honourable Ian McCall, a former judge of the Court, stated:

    In a court which has such wide discretionary powers, the information or educative role of the media has particular importance. It is the way in which this discretion is exercised by the application of the broad principles of the Act to specific factual situations that provide information of utility to the community. This is an ongoing process as principles are developed and refined. However, from time to time the educative role assumes far greater importance.

20. The importance of open justice was considered by this Court in Re W: Publication Application (1997) FLC 92-756, in which Fogarty and Baker JJ set out a detailed summary of the principles of open justice (at 82,249–82,258). Distinguishing between reports of the conduct of proceedings and the publishing of the judgment which resolves the proceedings, their Honours said (at 84,252):

    …  judgments of courts — the formal result and the reasons behind that result — stand in a different category from other elements of proceedings. The public has an interest in the way that decisions are made by their courts and in supervising the processes of reasoning that inform such decisions.

21. Nationwide News submits (at paragraph 11 of its written submissions) that the Application should be allowed for the following reasons:

    (a)       There is a clear public interest in doing so because:

    (i)Associate Professor L is an authoritative figure in the context of healthcare services provided to transgender and gender diverse children and adolescents. The Children's Hospital describes its Gender Service as being "internationally recognised". The order sought would allow the Australian community to consider their expert opinions and practices in a more detailed context;

    (ii)the publication of the Court's consideration of and conclusions on the evidence of an expert witness engenders public confidence in the administration of justice;

    (iii)it would provide information about healthcare services available to transgender and gender diverse children and adolescents which would enable parents and caregivers to make informed choices for their child or adolescent; and

    (iv)the healthcare services available to transgender and gender diverse children and adolescents is a topic of interest and concern to the public.

    (b)Identifying Associate Professor L and the Children's Hospital would not identify the child or family involved in the proceeding. The information sought to be disclosed is very narrow and does not expose sensitive information about the child, and there is therefore no additional risk of harm to the child.

    (c)The Application is not opposed by either of the parents, who are the parties to the proceeding. The mother does not wish to be heard in respect of the present application. The father does not wish to be heard in respect of the present application, but is supportive of it being granted. The Independent Children's Lawyer does not consider the Application impacts adversely on the best interests of the child or that it warrants her involvement.

    (d)Embarrassment of Associate Professor L or the Children's Hospital should not be a basis to refuse the Application.

    Public Interest

22. Public interest has been recognised as a relevant factor in the consideration of applications pursuant to s 121 of the Act. In Hinch v Attorney‑General(Vic) (1987) 164 CLR 15 at 57 (cited by Nicholson CJ in Re Lowe and Herald and Weekly Times Ltd (1995) FLC 92-592 at 81,853–81,854), Deane J said:

    Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain. …

23. In Re Lowe and Herald and Weekly Times Ltd, Nicholson CJ held (at 81,853) that authorisations of publication under section 121(9)(d) were not only for the purpose of providing assistance with locating children. In that case, a media organisation's application to publish information in relation to property proceedings between a husband and wife was granted in circumstances where the Court found it was justified by the public interest in the freedom of public discussion of matters of legitimate public concern. The husband had earlier been imprisoned for life for murder, with the wife being a witness against him. They had been widely publicly identified in the criminal proceedings in the Supreme Court of Victoria and the Family Court proceedings had been raised in the Victorian Parliament.

24. Nationwide News submits that, in the present case, there is “a clear public interest in granting the Application” (at paragraph 15 of the written submissions). There are four bases on which it makes this public interest submission.

25. First, Nationwide News submits (at paragraph 16) that:

    … there is a public interest in the Australian community having all information available to it in respect of the opinions and practices of an expert healthcare professional and a pre-eminent medical service, particularly with respect to a highly specialised field of practice.

26. Associate Professor L is considered, and holds herself out, to be a leading practitioner in, and an “advocate” for, the healthcare of transgender and gender diverse children and adolescents in Australia. The Children's Hospital, of which she is currently the Chief of Medicine, and was previously the Director of the Department of Adolescent Medicine, as well as of the Gender Service there, provides an internationally recognised service to transgender and gender diverse children and adolescents in Australia (Trial Reasons at [10]; see also [30]).

27. Associate Professor L was not called as a single expert at trial 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 previous orders made by consent (Trial Reasons at [10]).

28. As noted in the Trial Reasons (at [10]), Associate Professor L is also a member of the State Government’s Transgender and Gender Diverse Expert Advisory Group, and she authored the first draft, and had ongoing engagement in the development, of the Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents (“ASCTG”). The ASCTG has been endorsed by the Board of Directors of the Australian Professional Association for Trans Health (formally ANZPATH) for use in the care of transgender and gender diverse children and adolescents.

29. At [70] of the Trial Reasons, I discussed Associate Professor L’s role in the development of the ASCTG, stating that:

    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.

1. In relation to the Children’s Hospital, I was critical in the Trial Reason of its Gender Service and, in particular, Dr N, a senior clinical psychologist there, and her failure to undertake a proper diagnostic assessment of the child, such as a biopsychosocial assessment or an assessment for autism spectrum disorder (see [64], [90] and [131]). I noted that the evidence suggested that the Children’s Hospital Gender Service treatment for gender dysphoria/incongruence centred predominantly on puberty blockers. At [128] and [138] I said:

   128.The diagnosis of gender incongruence/dysphoria is relevant to the treatment pathway proposed by Dr N and Associate Professor L, and sought by the mother to be endorsed by this Court, which I consider below. Dr N holds a firm view, from which she will not (or only very reluctantly) divert, that the child has an established gender identity and that the CHGS’ gender affirming treatment, including medical treatment, approach is the only appropriate treatment approach. From the evidence of Dr N and Associate Professor L, the CHGS has a single approach; gender dysphoria, if diagnosed there, is treated with puberty blockers and attendances upon Dr N or one of her colleagues. No alternative treatment options are offered by the CHGS for gender dysphoria diagnosed there, other than prescription of puberty blockers by a paediatrician, such as Associate Professor L. I note that Associate Professor L did not accept the proposition put to her in cross-examination that a referral of a child to a paediatrician within the CHGS would likely lead to medical affirmation in the form of puberty blockers. However, in response to a question by me, Dr N could not identify a single case of a child who had been referred by her, or one of her colleagues, to a paediatrician at the CHGS who had not been prescribed puberty blockers.

   …

   138.Key components of gender affirming treatment approach propounded by the CHGS, as identified in the evidence include: acceptance and affirmation of a child’s or young person’s stated gender identity, without question; facilitation of early childhood social transition; provision of puberty blockers at early puberty to prevent the pubertal changes consistent with biological sex; and possibly the use of cross-sex hormones and, subsequently, surgical interventions in mid-to-late adolescence to align physical characteristics with gender identity.

2. At [87] of the Trial Reasons, I noted that:

   On 17 April 2023, the trial was adjourned, upon the application, and by consent, of the parties, to February 2024. For the purposes of the adjourned trial, trial directions were made on 13 December 2023 which required the mother to file, inter alia, any further affidavit by Dr N, limited to matters arising since 21 March 2023, by 15 January 2024. Again, it was on that date that the latest report of Dr N was prepared and filed, in which, this time, she opined that the child met the DSM-5 criteria for gender dysphoria in children where, as she stated at paragraph 69, “some other professionals involved in this matter queried [her] choice of diagnostic criteria and whether [the child] meets DSM-5-TR criteria”. It is, therefore, apparent, that her initial ICD-11 diagnosis and her subsequent DSM-5 diagnosis were each undertaken as the pending trial dates approached. Dr N conceded in cross-examination that the time pressure of the court process was one factor in the decision to conduct a diagnostic tool when she did. However, the Independent Children’s Lawyer submits, and I agree that, albeit one factor, it was a major one. Without such a diagnosis (or diagnoses), it is nigh inconceivable that the mother could have seriously prosecuted her application in relation to puberty suppression, let alone had any prospect of success. I find that the timing was more than merely coincidental.

3. I gave weight to the opinion of Dr O, a consultant psychiatrist and psychotherapist, who was an expert witness for the Independent Children’s Lawyer, in her report, in which she was critical of the accuracy and comprehensiveness of the answers provided by the Children’s Hospital Gender Service to the parties in the matter regarding treatment for the child. At [154], I stated:

   At paragraphs 76–81 of her April 2023 report, Dr O considers whether, in particular, the parents and the child in this case are likely to obtain from the CHGS paediatricians, such as Associate Professor L, accurate and comprehensive answers to the questions raised by her in relation to gender affirming treatment which, she opines, would be necessary for true informed consent from the parents (and assent by the child) and when considering the child’s views for the purposes of s 60CC(3)(a) of the FLA.

   76.My discussion in preceding sections of this report raises several important points relevant to the answer to this question. First, my observation is that there is a tendency for [CHGS] [sic] clinicians to overstate the certainty of the evidence, to underplay risks and to dismiss the possibility of alternative treatments …. Second, the [CHGS] [sic] has an ideological commitment to [gender affirming treatment], which it single-mindedly promotes. Third, [Dr N’s] report, although brief, indicates her clinical practice/discussions with [the child] and parents follows this ethos. All this suggests that [the child] and parents are not receiving/and will be unlikely to receive accurate information from [CHGC] [sic] clinicians to enable them to make true informed treatment decisions.

   77.I hold further concerns. First, with-in clinic [CHGS] [sic] communications encourage social transition and exclusively focus on glowing accounts of youth who have been “empowered” to transition … Such communications may act as a type of covert pressure on the clinic’s young patients to transition ....

   78.Second, in [State S], children, parents and clinicians are subject to powerful messages from the [CHGS] [sic] and a range of other agencies. For example, it is inaccurately implied that if parents do not affirm their child’s stated gender identity or permit [gender affirming treatment] then their child is at high risk of suicide. Claims are made to the effect that parents who do not support their child’s social transition or oppose their child’s attendance at a gender clinic or do not consent to [puberty blockers] are acting violently and putting their child “at risk,” (which implies notification to child protection services may occur), or that they are guilty of illegal conversion practises.

   79.The [CHGS] [sic] clinicians describe that their “individualised approach” involves following the child’s lead, but the communications I have just described must make us consider whether, in reality, it is more the case of the child following the [CHGS]’s [sic] lead, both by with-in clinic communications and by the [CHGS]’s [sic] advertising/promotion of [gender affirming treatment] to media, parents, schools, mental health agencies, other health professionals and policy makers.

   80.All these types of issues mean that it is important to consider the impact that influence and coercion might have on the capacity of a minor or the parents to give assent/informed consent. This is especially important in a situations which involve vulnerable minors and their families, who might be presumed to be at particular risk of being unduly influenced or coerced by prestigious physicians and powerful institutions, especially where there is a marked power differential, and when such influence and coercive elements extend beyond the clinic (via media, social media, support groups, regulatory agencies, podcasts and various publications).

   81.In sum, these issues raise important questions to which, in my opinion, the Court needs to give careful consideration. Given the [CHGS] [sic] ethos, it would seem unlikely that true informed consent, from the parents and assent from [the child] will be able to occur. First, because the [CHGS] [sic], appears to not be providing and is not likely to provide the necessary accurate, unbiased, and comprehensive information regarding the uncertainties and the harms of [gender affirming treatment], nor realistic information on possible alternative treatments. Second, because elements such as influence, and coercion are likely to be undermining [the child’s] and parents’ capacity to provide true informed consent.

   (Footnotes omitted)

4. Nationwide News submits, and I agree, that the interests of the public are best served by members of the public having access to the entire context of Associate Professor L’s opinion or practice, so that it can be properly assessed. Such transparency, including as to that expert’s identity, enables individuals to evaluate critically the validity, reliability and implications of that opinion and practice. The mere fact that it may be the subject of ongoing controversy and debate does not detract from the public interest in it being made public. Indeed, I consider that it may even bolster the argument therefor, to ensure that all relevant information is available for scrutiny, accountability and informed discourse.

5. Secondly, Nationwide News submits, and I agree, that, in this case, comprehensive and accurate reporting of my Trial Reasons will reinforce public confidence in the administration of justice. In the context of applications for suppression or non-publication orders, it is often acknowledged that the proper functioning of the justice system is strengthened by openness to public and professional scrutiny. Transparency serves as a safeguard against potential misuse of judicial power, ensuring that justice is not only done but seen to be done, and reducing the risk that abuses go unnoticed or unaddressed. See: Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; Pascoe (Liquidator), in the matter of Matrix Group Ltd (in liq) (Trustee) (No 2) [2021] FCA 426 at [17]; Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [44]. Nationwide News submits that the Court’s consideration and analysis of an expert witness’ evidence, in particular their duty to the court “to give objective and unbiased opinion that is also independent and impartial on matters that are within [their] knowledge and capability” (r 7.18(3)(a) of the Rules), is a matter of public interest, even without regard to this particular witness’ public profile.

6. In my Trial Reasons, I made findings critical of Associate Professor L and the Children’s Hospital, its Gender Service (including Dr N, who is not sought to be identified) and its Gender Affirming Treatment model. I accept there is a public interest in knowing the identity of Associate Professor L, in circumstances where she holds herself, and is held out by the Children’s Hospital, to be an expert in, and a leader in the field of, healthcare for transgender and gender diverse children and adolescents. To maintain a suppression of her identity may well undermine public confidence in the administration of justice.

7. At [11] of the Reasons, I noted that:

   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”; an “advocate for trans rights”; an “advocate for transgender healthcare”; that she was giving her expert opinion “as an advocate for trans people”; and that her “preferred model of healthcare for transgender children is a gender-affirming treatment”, 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.

   (Citations omitted)

8. At [106] of the Trial Reasons, I criticised Associate Professor L for her emotive and inappropriate comparison of the final report of the “Independent Review of Gender Identity Services for Children and Young People” (“Cass Report”) with Nazi persecution:

   The emotive suggestion, by an expert witness, that the Cass Report forms part of a “third wave of transgender oppression” commencing with the Nazis has no place whatsoever in the independent evidence that should be expected of such an expert. It demonstrates ignorance of the true evils of Nazism and cheapens the sufferings – and mass murder – of the millions of the victims thereof, which included, but were most certainly not limited to, transgender people, as well as gay and lesbian people, amongst other groups of people. I consider there to be no comparison whatsoever.

9. Thirdly, Nationwide News submits, and I agree, that granting the Application would be in the public interest because it would assist parents and caregivers, and their children, to make fully informed decisions. As is apparent from my Trial Reasons, there is a diversity of views, both within and outside of Australia, as to what is appropriate or best practice healthcare for transgender or gender diverse children and adolescents, with limited evidence about the long-term effects of some of the healthcare options promoted by Associate Professor L, the Children’s Hospital and its Gender Service.

10. Nationwide News submits (at paragraph 24), and I agree, that the information that would become available to the public to assist in this regard includes:

    (a)An assessment for neurodivergence may be required as part of the diagnostic process for children and adolescents who present as gender incongruent or gender dysphoric.

    (b)The Children's Hospital does not have a clinical "puberty blocker trial" in place and has significant issues with follow-up into adulthood with participants in its 2017 longitudinal cohort study.

    (c)If a child or adolescent is diagnosed with gender dysphoria, the only treatment offered by the Children's Hospital is the prescription of puberty blockers.

11. This information enables an informed decision to be made, counterbalancing that provided by Associate Professor L and the Children’s Hospital and its Gender Service.

12. Fourthly, Nationwide News submits, more broadly, that the healthcare of transgender and gender diverse children and adolescents is an “area of legitimate public comment, public discussion and public inquiry” (see Hinch v Attorney‑General(Vic) at 57, referred to in AH & SS at [34]), and that the information is “of utility to the community” (see Publicity in Family Law Cases p. 55, referred to in AH & SS at [29]).

13. In B v Minister for Immigration and Multicultural and Indigenous Affairs and Advertising Newspapers Ltd [2002] FamCA 768 at [23], Dawe J said:

    In relation to the order that is to be made, I accept that there is a public interest in the type of these proceedings and the very arguments that are before the court. I think the public would benefit greatly from an informed, intelligent debate about the laws that parliament has put in place in relation to matters in the Family Law Act and other matters which are before the court, namely the Migration Act. Those matters in my view can be publicly aired in an appropriate manner, whilst at the same time exercising care that the parties and the children are not identified.

14. Similarly, in Re Lowe and Herald and Weekly Times Ltd, Nicholson CJ said (at 81,853) that there is “a recognised right of freedom of public discussion of matters of legitimate public concern”.

15. In the Trial Reasons, I noted that the evidence before me regarding the treatment of gender dysphoria/incongruence “illustrates that there is no clinical consensus amongst the professional expert witnesses called by each of the parents and the Independent Children’s Lawyer” (at [345]). This debate was also explicitly acknowledged by Associate Professor L (at [150]):

    In cross-examination, Associate Professor L broadly accepted that there was no clinical consensus as to the use of puberty blockers (or cross-sex hormones), but maintained that, within “particular expert groups”, there is consensus. Nevertheless, she agreed that there is a clear debate regarding the appropriate care for a transgender child, she being positioned on one side of that debate. …

    (Citations omitted)

16. I also accepted evidence from Dr O (at [151]) that:

    Given both the lack of evidence and expert consensus regarding gender affirming treatment, youth gender dysphoria should be viewed as an area of medicine where there is genuine scope for debate about treatment options. Treating clinicians should clearly explain, in an unbiased manner, to parents and children, the benefits and harms, the uncertainties and the available alternatives.

17. I therefore agree that the evidence of Associate Professor L is an area of legitimate public comment, public discussion and public inquiry, and that identifying her therewith is information of utility to the community, which will permit an informed and intelligent debate. This cannot be sufficiently or properly achieved by the use of pseudonyms, such as “Associate Professor L” or the “Children’s Hospital”, in reporting, because such reporting is devoid of relevant and important context (in contrast to In the Marriage ofF and R (No 2) (1992) FLC 92-314). It makes a substantial difference whether evidence of the nature of that given by Associate Professor L at trial was given by her, with all the expertise she holds herself out to have, and which she is held out by the Children’s Hospital and its Gender Service to have, or by, say, a general medical practitioner (with all due respect to them).

    Welfare of the child

18. Nationwide News submits that the Application does not negatively impact the welfare of the child the subject of the proceedings. Neither parent wishes to be heard in relation to the Application, albeit that the father has advised that he supports it. Furthermore, the Independent Children’s Lawyer has advised that she does not consider it has any impact on the best interests of the child, such as to warrant her re-involvement in the proceedings.

19. In F & R (No 2) at 79,354, Fogarty J stated that “[w]hilst the welfare of the child may not be the absolute determinant of the matter, it is, nevertheless, a most critical circumstance” (see also Re R (MJ) (an infant) [1975] 2 All ER 749 at 755). Similarly, in CDJ v VAJ(No 2) (1998) 197 CLR 172, albeit in the context of an application to admit further evidence on appeal, Kirby J said at [191] that:

    … The metaphor of the “shadow” was an apt one. Whilst not governing the decision on the admission of further evidence or on the appeal as it was conducted, the welfare of the children, as the ultimate issue, was properly kept in mind. …

20. The Application does not seek to identify the child, the parents or the child’s treating medical or allied professionals, past, present or possibly future. As I observed in the Trial Reasons (at [59] and [116]), Associate Professor L did not attend upon, let alone treat, the child. Furthermore, as a result of the orders I made on 3 April 2025, accompanying the Trial Reasons, the child no longer attends the Children’s Hospital Gender Service. There is therefore no risk that the child would be able to be identified from the very limited reach of the Application, including by mere reference to being a former patient of the hospital.

21. Annexed to the affidavit of the solicitor for Nationwide News filed on 7 May 2025 is an article about Associate Professor L published on the ABC News website on 24 May 2024, the headline of which reads: “[Associate Professor L] has been a lifesaving advocate for hundreds of trans children. But her work doesn’t come without controversy”. It reports that more than 1,500 gender-diverse young people, by then, had been treated by the Children's Hospital Gender Service. Further, a “profile” of Associate Professor L published in The Lancet medical journal in August 2019, also annexed to that affidavit, referring to her involvement with the Children's Hospital Gender Service, states that it “was – and remains – the largest transgender service in Australia”, and that it received 269 referrals in 2018. Accordingly, I accept that there is no risk of the child being identified simply by being referred to as a former patient of the Children's Hospital.

    Embarrassment and damage to reputation

1. Nationwide News submits that any embarrassment or damage to reputation that may occur if Associate Professor L or the Children’s Hospital are identified in reports of the judgment or proceedings is not a proper basis to refuse the Application. In any event, after it filed its submissions on 7 May 2025, the Children’s Hospital advised the Court on 16 May 2025, that Associate Professor L and it no longer wish to oppose the Application.

2. The aforesaid article about Associate Professor L published on the ABC News website, annexed to the affidavit of the solicitor for Nationwide News, reports that she –

   … is credited with helping to save many children’s lives without pulling out a single scalpel or tending to any life-threatening diseases.  But the job is also one of the most controversial in Australian medicine, with critics questioning whether the medical treatment of trans children under 18 is appropriate.

   For [Associate Professor L], the work is more important than the debate.

   “We can’t do nothing because doing nothing is not a neutral option for us,” she says.  “Doing nothing is actually exposing young people to the risk of harm.”

3. Further, it is reported there that Associate Professor L said that “from August 2019 to July 2020 The Australian newspaper published 45 stories mentioning her and more than 300 citing the hospital” and that the newspaper was “inferring that clinicians like me are harming children and what they suggest is that it’s experimental, that the care is novel and that they’re potentially mentally ill and not really trans”. As I noted at the commencement of these reasons for judgment, Nationwide News brings this Application on behalf of The Australian. It was further reported, in that article, that Associate Professor L “recently took her complaints to the Press Council and is awaiting an adjudication”, the outcome of which I do not know. Accordingly, I am satisfied that Associate Professor L is well aware of her legal rights and the avenues open to her if, hereafter, she is aggrieved by the publication of an account of the proceedings in which she is identified by name.

4. In the “profile” of Associate Professor L published in The Lancet, also annexed to the affidavit of the solicitor for Nationwide News, it is reported that –

   [Associate Professor L] is not afraid to take a stand. “One of the things that has been really important for me and my career is learning to be publicly criticised”, she explains. “When you work in trans health, you upset people by doing the right thing.” …

5. Further, it is reported there that Associate Professor L “has always tackled the controversy surrounding her clinical and advocacy work head on”.

6. In that article, Associate Professor L is identified by name and as the (then) Director of the Gender Service and head of the Department of Adolescent Medicine at the Children’s Hospital, which is identified by its full name, and not anonymised.

7. In the context of applications for suppression and non-publication orders, the courts have consistently held that embarrassment and damage to reputation are not a proper basis for the making of an order restricting publication (Rush v Nationwide News Pty Ltd (2018) 359 ALR 473 at [187]–[188]).

8. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142, Kirby P stated:

   It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …

9. In J v L & A Services Pty Ltd (No 2) (1995) 30 ALD 791 at 794, Fitzgerald P said:

   … It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges’ subjective views of the merits or demerits of the claims to privacy of individual litigants. …

10. Whilst, in proceedings under the Act, those observations are subject to s 114Q(1)(b)(ii) which proscribes the communication to the public of an account that identifies a witness in the proceedings, subject to direction or approval by the Court pursuant to subsection (2), I consider that, in the determination of an application for such approval, a distinction lies between a lay witness and expert witness, especially where the identification of that expert witness will not lead to the identification of a party to, or a child the subject of, the proceedings. I can see no reason why, as a matter of principle, an expert witness who gives evidence in this Court should have the protection of s 114Q(1)(b)(ii), whereas if that expert witness gives the same evidence in another court, he or she would not have the benefit of such anonymity.

11. In the Trial Reasons, I refer to the judgment of Re CD (2024) 75 VR 559, in which, upon application by the Children’s Hospital (albeit unanonymised), the Supreme Court of Victoria determined that one parent of a 12-year-old child could unilaterally authorise Stage 1 puberty-blocking treatment, in the absence of consent of the other parent. I distinguished Re: Devin from that decision on the basis that, in Re CD, the other parent was absent from the child’s life; there were no family law orders; the father was not party to the Supreme Court proceedings; there was no Independent Children’s Lawyer; and there was no contradictor or contradictory evidence. I observed that it was “unclear why the [Children’s Hospital] chose, or shopped for, that forum, rather than this Court, when this Court’s parens patriae jurisdiction has been long established” (at [192]). Further, I said at [192]–[194] that –

    192.… However, of relevance to this case and of concern generally, is the fact that no mention whatsoever was made in Re CD of the then recently released Cass Report. One is left to speculate why the Cass Report was apparently not brought to the attention of the Supreme Court by the RCH, which was the applicant in those proceedings. The Supreme Court proceeded upon uncontroverted evidence, as follows (at [12]):

    CD's treating clinicians strongly recommend that she commence stage 1 puberty blocking treatment using gonadotrophin releasing hormone analogues (GnRHa). This treatment halts the progression of the physical changes that come with puberty, but is reversible and may be stopped at any time. The clinicians say that undertaking stage 1 treatment will provide CD with both immediate psychological relief, and additional time to explore her gender identity before making decisions about the use of other “stage 2” hormonal treatments, such as oestrogen. Her paediatrician's opinion is that CD is likely to remain stable in her female gender identity, in which case she will also derive long term benefit from having had GnRHa treatment to prevent unwanted and irreversible masculinisation during puberty. If she later becomes unsure about her gender identity, she can stop the treatment.

    193.The Supreme Court proceeded upon the basis that Stage 1 treatment for gender dysphoria is no different to any other medical treatment, such as childhood vaccinations, surgery to mend a broken bone, or chemotherapy to treat cancer, to which a parent may consent (at [38]). Given the evidence in this case, the benefit of which the Supreme Court did not have, I disagree with those analogies.

    194.Rather, given the far more extensive evidence in this case, including evidence contradictory of the evidence before the Supreme Court in Re CD, which I accept, I conclude, as I must, by reason of the preceding decisions of the Full Court, that whilst “the legal requirements for consent to stage 1 treatment for gender dysphoria are no different from those that apply to any other medical treatment to which a parent may consent” (Re CD at [38]), Stage 1 treatment is qualitatively different to childhood vaccinations, surgery to mend a broken bone or chemotherapy to treat cancer. …

12. Not only was the Children’s Hospital not anonymised in Re CD, but the name of its Executive Director of Medical Services and Chief Medical Officer, Associate Professor Thomas Connell, who swore an affidavit in those proceedings, was not anonymised.

13. If the Children’s Hospital’s and its Executive Director of Medical Services and Chief Medical Officer were identified by name, without any anonymisation, in Re CD, as a result of the hospital’s election to pursue its application in the Supreme Court, rather than in this Court, I can see no reason why the full name of that hospital and Associate Professor L, who is presently its Chief of Medicine, should remain anonymised in these proceedings in this Court. The only appreciable difference between the two cases is that, in Re CD, the evidence adduced by the hospital was accepted, whereas in this case, the evidence of Associate Professor L, as well as Dr N, was not accepted and was the subject of judicial criticism. That difference is not a reason to refuse the Application; indeed, I consider it to be a reason to grant it, so that the public is aware of, and can take into account, the different findings and conclusions made by the two courts.

    CONCLUSION

14. In the circumstances, including the lack of any opposition by the parents of the child, the Independent Children’s Lawyer, the Children’s Hospital or Associate Professor L, I consider that it is appropriate to grant the Application. Accordingly, I shall order that any communication to the public of an account of the substantive parenting proceedings, including my Trial Reasons, may identify “the Children’s Hospital” as The Royal Children’s Hospital Melbourne and “Associate Professor L” as Associate Professor Michelle Telfer.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       5 June 2025