Re: G11

[2022] FCWA 76

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: G11 [2022] FCWA 76

CORAM: DUNCANSON J

HEARD: 31 MARCH 2022

DELIVERED : 6 APRIL 2022

FILE NO/S: [Redacted]

BETWEEN: THE MOTHER

Applicant

AND

THE FATHER

First Respondent

AND

SERVICE A

Second Respondent

Catchwords:

CHILDREN - where the child who is 15 years of age has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment - the procedures of [Service A] - where it is found the child is Gillick competent to consent to treatment - where a declaration is made to that effect - where it is in the best interests of the child that an order be made authorising treatment

Legislation:

Family Law Act 1975 (Cth) s 60CC, s 67ZC
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms A
First Respondent	:	No Appearance
Second Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: G11 has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 Family Court Rules 2021 (WA).

1These proceedings concern [G11] who is 15 years and 11 months of age. G11 was born male but strongly desires to be a female. G11 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G11 using the female pronoun.

2On 31 March 2022 I made the following declaration and orders:

1There be a declaration that the child [G11] born [April] 2006 is competent to give consent to the administration of stage 2 cross hormone treatment to her for her diagnosed condition known as "Gender Dysphoria".

2The proposed stage 2 treatment of the child, being the administration of oestrogen to be administered in such dose and manner and with such frequency as determined by her medical treating team at [Hospital A] is authorised by this Court.

3The child's full name, her family members, her medical practitioners, the Court file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

4Only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file name and number, and lawyers' names and details, as well as the child's real name, (both past and present) shall be released by the Court to non-parties without contrary order of a Judge.

5No person shall be permitted to search the Court file in the matter without first obtaining the leave of a Judge.

6The application otherwise be dismissed.

3These are my reasons.

4By initiating application filed 3 December 2021 the applicant, G11's mother, sought orders which included:

•a declaration that G11 is competent to give consent to the administration of stage 2 cross hormone treatment to her for her condition known as Gender Dysphoria;

•the proposed stage 2 hormone treatment, being the administration of oestrogen to be administered in such dose and manner and with such frequency as determined by her medical treating team at Hospital A, be authorised by the Court.

5The first respondent is G11's father. He consents to the orders sought.

6The second respondent is Service A. Service A is the health service provider for Hospital A under the Health Services Act 2016 (WA). The second respondent neither consents to nor opposes the orders sought.

7On 2 February 2022 I made an order that G11 be independently represented at the further hearing of these proceedings. G11 is represented by an Independent Children’s Lawyer, Ms C. The ICL supports the orders sought by the mother.

BACKGROUND

8G11's parents married [in] February 1998. G11 was born [in] April 2006. G11's parents separated finally [in] December 2019. G11 lives with the mother [and her two siblings]. G11 spends time with the father.

9The mother deposed that throughout primary school years G11 dressed and acted as a girl. When G11 was 12 years of age, her mental health deteriorated. At that time the father rejected her preferred gender identity. She began to self-harm at this time.

10G11 was referred to [Service B] in late 2017 or early 2018 and was diagnosed with Gender Dysphoria. She has received hormone blocker treatment for two years and has responded well to it. G11 is ready to commence stage 2 treatment.

11Although G11's father was previously opposed to treatment, he has subsequently consented to the orders sought.

12[In] August 2021 G11's name was officially changed from her birth name to her preferred name.

EVIDENCE AND DOCUMENTS RELIED ON

13The mother relied on her case information affidavit filed 3 December 2021. She also relied on reports from the following practitioners:

•[Ms D], Clinical Psychologist dated 8 March 2022;

•[Dr E], Consultant Child and Adolescent Psychiatrist dated 11 March 2022; and

•[Dr F], Paediatric Endocrinologist dated 15 March 2022.

THE LEGAL PRINCIPLES

14In Re Kelvin (2017) FLC 93-809 the Full Court determined that stage 2 treatment could no longer be considered a medical procedure for which consent lay outside the bounds of parental authority and required the imprimatur of the Court.

15Further in respect of stage 2 treatment, the Full Court determined that if a child consents to medical treatment, the medical practitioners agree the child is Gillick competent, and the parents do not object to treatment, it is not mandatory to apply to the Court for a determination as to Gillick competence. If all agree, a Gillick competent child can consent to stage 2 treatment.

16If the child is not Gillick competent, and if the treating medical practitioners agree, the child's parents can consent to stage 2 treatment without Court approval.

17In the event there is genuine dispute or controversy it is necessary for the Court to determine whether it is in the best interests of the child to authorise treatment.

18 Gillick competence is established if a child has achieved a sufficient understanding and intelligence to enable the child to understand fully what is proposed. (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 ("Marion's case")).

THE SERVICE A POSITION

19On 27 July 2021 the Chief Executive of Service A wrote to practitioners at Service B. He provided the following direction:

From today, [Service A] will use consent procedures that are in line with best clinical practice, current Australian legal context and [Service A] policy.

Stage 1 (puberty suppression with gonadotropin releasing hormone agonist) and Stage 2 (estrogen or testosterone treatment) are two separate treatment steps each requiring informed consent.

Court authorisation for stage 1 treatment is required if:

·The child is in [State care]

·There is dispute relating to diagnosis and / or treatment, between:

o Parents / legal guardians and the child

oParents / legal guardians and [Service B]

·Consent is unable to be gained from all parents / legal guardians

Court authorisation for stage 2 treatment is required if:

·The child is in [State care]

·The child is not Gillick competent

·There is dispute relating to Gillick competence and / or diagnosis and /or treatment, between:

oParents / legal guardians and the child

oParents / legal guardians and [Service B]

·Consent is unable to be gained from all parents / legal guardians

·The child wishes to commence stage 2 treatment at less than 16 years of age even if the child is Gillick competent and there is agreement between child, parents and [Service B].

This change is effective immediately.

THIS APPLICATION

20G11 meets the full diagnostic criteria for Gender Dysphoria (in adolescence), Gender Incongruence of Adolescence and Adulthood, and Transsexualism.

21There is no dispute between G11, her mother and her treating medical practitioners, all of whom consider that stage 2 treatment should commence. G11's father now consents to the orders sought by the mother in her application. As discussed below, the medical practitioners involved in G11's care report that she is Gillick competent to consent to stage 2 treatment. That is not determinative of the matter, by reason of Service A policy, as G11 has not yet attained the age of 16 years. In the circumstances, this application was necessary, and the Court must determine whether it is in the best interests of G11 to authorise treatment.

22Accordingly, I shall determine the application pursuant to s 67ZC of the Family Law Act 1975 (Cth) ("the Act"). In doing so I shall regard the best interests of G11 as the paramount consideration.

IS G11 GILLICK COMPETENT?

23Ms D is G11's case manager. She first met G11 in December 2019 and has continued to see G11 and her mother approximately every three months. Ms D reported that G11and her mother reported a long-standing female identity. G11 has consistently stated she identifies as female, lives her life as female and wants cross-sex hormones (specifically oestrogen).

24Ms D reported she is satisfied that G11 is a competent minor with respect to having the intellectual capacity and emotional maturity to make stage 2 cross-sex hormone therapy (specifically oestrogen) decisions. Ms D reported G11 has been assessed for her understanding of the likely impacts of treatment and has demonstrated awareness of these impacts and limitations of treatment. Ms D reported G11 has considered the impact of treatment on fertility and she has the capacity to consider the short and long-term implications of treatment. Ms D reported in summary she considers that G11 clearly demonstrates the capacity to consent to stage 2 gender affirming treatment, oestrogen.

25Dr E has seen G11 for extended interviews and has also seen the mother. Dr E has participated in discussing G11's care in the Service B Clinical Review Meeting on a number of occasions and in discussions with other Service B clinicians involved in her care. Dr E reported that G11 experienced relief of distress when she commenced puberty suppression and expresses her strong wish and intention to commence oestrogen, followed by gender-affirming surgery in the future.

26As to whether G11 has the maturity and intellectual capacity to understand the short-term and long-term implications of receiving treatment, Dr E provided a comprehensive assessment.

27Dr E reported G11 has the ability to comprehend and retain existing and new information regarding the proposed treatment and she is able to provide a full explanation, in appropriate terms, of the nature of the treatment.

28G11 is able to describe the advantages and disadvantages of treatment and she has the ability to weigh the advantages and disadvantages in the balance and arrive at an informed decision about whether and when treatment should proceed. Dr E reported G11 has a thorough period of experience of social transition without oestrogen treatment, which has helped G11 make a well-informed decision that she does want and need the further advantages provided by oestrogen hormone treatment, and that these advantages outweigh the disadvantages.

29G11 understands that the decision to proceed with treatment could have consequences that cannot be entirely foreseen at the time of the decision and she acknowledges that the treatment would not necessarily address all of the psychological and social difficulties that she had before its' commencement.

30Dr E reported G11 is free, to the greatest extent possible, from temporary factors that could impair her judgment in providing consent to treatment. In particular, Dr E noted G11's personal history of deliberate self-harm ceased for over two years, is not a reason for refusing or delaying treatment.

31Dr E reported that G11 discussed in detail her understanding of the impact of oestrogen on fertility and she knows it is possible to feel regret about permanently reduced or lost fertility.

32G11 is able to appreciate the possibility of regret about gender transition in the short, medium and long term and is able to understand that feelings and wishes can change as a person grows older. G11 has weighed this up in her decision-making.

33G11 is able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment and Dr E reported G11 knows very well that no treatment can make her exactly as if she had been born female.

34Dr E reported that in her professional opinion G11 has capacity to give informed consent to oestrogen treatment, that is she is Gillick competent in this regard.

35I have considered the evidence of the medical practitioners which I have summarised above. I am satisfied on the basis of that evidence that G11 is competent to consent to stage 2 treatment, oestrogen.

36Having regard to G11's age, as she is not yet 16 years of age, I proceed to make a determination of this application according to the best interests of G11. The best interests of G11 are determined taking into account the considerations as set out in s 60CC (2) and (3) of the Act insofar as they are relevant.

G11'S BEST INTERESTS

37G11 has the diagnoses as set out at [20] above. G11 lives with the mother [and her two siblings]. G11's mother is supportive of G11. Ms D is of the view that this support is based on a genuine desire and ability to consider G11's best interests.

38Dr E reported that G11's father had wished that G11 would wait until she was 18 years of age or older, so that she could give her consent to treatment without the need for parental consent. He has since consented to the orders sought in the application. Dr E reported G11 understands her father's view, that he is worried about her, fearing she will regret the decision in the future.

39Ms D reported as to G11's maturity as to her father's viewpoint. Ms D reported G11 is proud of her father expressing his opinions, even though she does not agree with his beliefs. G11 believes her relationship with her father will remain strong no matter the decision of the Court.

40G11 attends [School A]. The mother described G11 as enjoying good mental health at present. She also described her as outgoing, funny, kind and very friendly. She described G11 as mature.

41The ICL met with G11 [in] March 2022. She reported that G11 presented as very measured, determined, and mature. The ICL reported that G11 told her she understands everyone has different opinions and she confirmed she was spending time with her father.

42G11 told the ICL that she considers the Court proceedings as an unnecessary and unneeded step. She did not want to be engaged in prolonged proceedings. G11 informed the ICL she just wants the validation of being a real woman which she sees the hormonal treatment as a step toward.

43Dr F reported that G11 has been evaluated for hormone treatment. From the endocrine perspective there are no reservations to initiate hormonal therapy.

44Dr E reported at [84]:

In my professional opinion, [G11] has a clear and stable female and feminine gender identity; expresses clear and consistent wishes to commence oestrogen at age 16; meets full criteria for diagnosis of ICD‑10 F64.0 (as above) as well as full criteria for DSM-5 Gender Dysphoria; is stable in her mental health and well-supported in her life situation; and has capacity to give her informed consent to oestrogen treatment. In my opinion it is in her best interests to be authorised to commence oestrogen.

(as per the original)

45Ms D reported at [46]:

I support [G11's] access to stage 2 gender affirming medical treatment (estrogen) as I believe that she has a long established female identity, she is supported in that gender by her mother and siblings, friends and school, and lives full time in all aspects of her life as a female. I consider that withholding treatment would ultimately be harmful to [G11].

(as per the original)

CONCLUSION

46I have considered the evidence in the context of the considerations as set out in s 60CC of the Act insofar as they are relevant.

47I find that it is in G11's best interests that there be an order that the administration of stage 2 hormone treatment, oestrogen, to G11 as recommended by her treating medical practitioners at Hospital A be authorised by this Court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

6 APRIL 2022