Re: G13
[2022] FCWA 121
•16 JUNE 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RE: G13 [2022] FCWA 121
CORAM: DUNCANSON J
HEARD: 9 JUNE 2022
DELIVERED : 16 JUNE 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 16 years of age has been diagnosed with Gender Dysphoria and wishes to access stage 2 gender affirming hormone treatment - where there is controversy in relation to the father's consent - 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 | : | Self-Represented Litigant |
| 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: G13 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 [G13] who is 16 years and five months of age. G13 was born female but strongly desires to be a male. G13 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G13 using the male pronoun.
2On 9 June 2022 I made the following declarations and orders:
1There be a declaration that the child, [G13] born [in] January 2006 is competent to give consent to the administration of stage 2 cross hormone treatment to him for his condition known as Gender Dysphoria.
2The proposed stage 2 treatment of the child, being the administration of testosterone in such dose and manner and with such frequency as determined by his medical treating team at [Hospital A] is authorised by this Court.
3The child's full name, his family members, his 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.
IT IS DECLARED THAT the Court having found that it is in the best interests of the child, [G13's birth name], born [in] January 2006, that the child's name be changed and that the child henceforth be known as [G13's preferred name].
IT IS FURTHER ORDERED THAT
6The Registrar of Births, Deaths and Marriages, Western Australia, do effect the requirement to change the child's birth registration pursuant to this order.
7The proceedings be otherwise dismissed.
3These are my reasons.
4By amended initiating application filed 10 January 2022, the applicant, G13's mother, sought orders which included:
•a declaration that G13 is competent to give consent to the administration of stage 2 cross hormone treatment to him for his condition known as Gender Dysphoria;
•the proposed stage 2 treatment, being the administration of testosterone in such dose and manner with such frequency determined by his medical treating team at [Hospital A] be authorised by the Court; and
•a declaration that it is in the best interests of G13 that his name be legally changed to his preferred name and the Registrar of Births, Deaths and Marriages be requested to effect that change.
5The first respondent is G13's father. The father consents to the orders sought, having signed a minute of proposed orders to that effect.
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. The second respondent takes this position for the reason set out at [7] below.
7The second respondent submitted the father has not provided informed consent to treatment. Counsel for the second respondent explained in correspondence dated 7 June 2022 that the father had not signed the Service A consent to treatment document which requires informed consent to the proposed treatment. That would require the provision of further information to the father and further consultation between him and the Hospital A [Service B] in order to ensure that he understands the proposed treatment. Counsel for the second respondent said it would be necessary for a consultation between the father and the treating endocrinologist to be arranged for the father to be able to provide informed consent to treatment, because he had not had any engagement with the endocrinologist.
8On 12 October 2021 I made an order that G13 be independently represented at the further hearing of these proceedings. G13 is represented by an Independent Children's Lawyer ("ICL"), [Ms C]. The ICL consents to the orders sought by the applicant.
BACKGROUND
9G13's parents married [in] August 2005. G13 was born [in] January 2006. G13's parents separated in January 2010. G13 lives with his mother, stepfather, [and siblings].
10G13 does not spend time with the father. The mother deposed G13 made some disclosure of inappropriate touching by the father when G13 was much younger. The matter was investigated and not substantiated. G13 does not wish to see or communicate with the father. G13 self-harmed after his last communication with the father in September 2020. [Dr D] reported the father denies the allegation of sexual abuse.
11The mother deposed that G13 began dressing in dark male clothing and identified as gay and male in 2018. G13 came out to the mother in late 2018. In 2020 he socially transitioned at school. G13 has suffered from poor mental health and sees a psychologist.
12G13 was referred to Service B in 2020. He has continued to engage with Service B and has completed a thorough multidisciplinary assessment there.
13G13 strongly identifies as a male and strongly wishes to commence testosterone treatment.
THE EVIDENCE AND DOCUMENTS RELIED ON
14The mother relied on her case information affidavit filed 2 August 2021. She also relied on reports from the following practitioners:
•[Dr E], Paediatric Endocrinologist dated 20 April 2022;
•[Dr F], Clinical Psychologist dated 4 May 2022; and
•Dr D, Consultant Child and Adolescent Psychiatrist dated 6 May 2022.
THE LEGAL PRINCIPLES
15In 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.
16Further 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.
17If 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.
18In 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.
19 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
20On 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
21G13 has a clear diagnosis of Gender Dysphoria in Adolescence/Gender Incongruence in Adolescence/ICD-10 "Transsexualism".
22G13 has associated diagnoses of Post-Traumatic Stress Disorder, [Autism Spectrum Disorder] and [Attention Deficit Hyperactivity Disorder].
23There is no dispute between G13, his mother and his treating medical practitioners, all of whom consider that stage 2 treatment should commence. G13's father consents to the orders sought by the mother in her application, on the basis it is what G13 wants. As discussed below, the medical practitioners involved in G13's care report that he is Gillick competent to consent to stage 2 treatment. G13 is over 16 years of age.
24The above matters are not determinative however, as controversy arises in relation to the nature of the father's consent.
25Dr D reported that during G13's engagement with Service B, [Dr G] contacted the father and ascertained that he was not in a position to provide consent for gender-affirming treatments as he has had insufficient contact with G13 to form an opinion about his identity or best interests, or capacity to make health-related decisions. Dr D reported the father expressed a wish to have contact with G13 and his sibling and to develop a parental relationship with him. Dr D reported G13 said to Dr G that he does not want to have any contact with the father and to do so would be highly distressing for him. Dr D reported that an application to the Court was therefore made as it was determined that it would not be possible to obtain informed consent to gender-affirming treatment for G13 from both legal guardians.
26Having regard to the Service A guidelines, this application was necessary. In these circumstances and having regard to the controversy which arises in relation to consent, the Court must determine whether it is in the best interests of G13 to authorise treatment.
27Accordingly, 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 G13 as the paramount consideration.
IS G13 GILLICK COMPETENT?
28Dr F is G13's case manager. She first met G13 in February 2022 and has continued to see him. Dr F reported G13 has continued to express his wish to be male and access gender affirming medical treatment (including cross hormones and surgery in the future, when eligible).
29Dr F reported she was satisfied that G13 is a competent minor with respect to having the intellectual capacity and emotional maturity to make stage 2 cross sex hormone therapy (specifically testosterone) decisions.
30Dr F reported:
61. In summary, I consider that [G13] can be considered Gillick competent and clearly demonstrates the capacity to consent to stage 2 gender affirming treatment, testosterone.
(as per the original)
31Dr D considered whether in her view, G13 has the maturity and intellectual capacity to understand the short term and long-term implications of receiving treatment. She presented her assessment of G13's capacity in 11-point format as follows:
•Ability to comprehend and retain both and existing and new information regarding the proposed treatment
•Ability to provide a full explanation, in terms appropriate to the child's level of maturity and education, of the nature of the treatment
•Ability to describe the advantages of the treatment
•Ability to describe the disadvantages of the treatment
•Ability to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when they should proceed with the treatment
•Able to understand the decision to proceed with the treatment could have consequences that cannot be entirely foreseen at the time of the decision
•Acknowledgement that the treatment would not necessarily address all of the psychological and social difficulties that the patient had before its commencement
•Confirmation from the clinician that the patient was free, to the greatest extent possible, from temporary factors such as pressure of pain that could impair judgement in providing consent to treatment
•Emotional maturity in weighing up impact on fertility in particular – does the young person appreciate the possibility of regret about impaired fertility?
•Able to appreciate the possibility of regret about gender transition, in the short, medium and long-term, and understand that people's feelings and wishes can change as they grow older?
•Able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment?
32Dr D comprehensively discussed the above matters in relation to G13. It is not necessary for me to repeat her findings and opinions with respect to each of the above points as they are fully set out in her report.
33Dr D reported that there was evidence of impulsivity when G13 was distressed, which increased his mental health risk, but there was no impulsive quality to his request for testosterone treatment, which has been a consistently expressed wish and request for over two years.
34Dr D opined that G13 shows sufficient maturity at age 16 to have capacity to give his informed consent to testosterone treatment. She based this assessment on her observations and upon his mother's report.
35Dr D reported:
95. In summary, it is my professional opinion that [G13] demonstrates capacity to consent to "Stage 2" testosterone treatment, that is, he is Gillick competent to consent to receiving testosterone treatment.
(as per the original)
36The ICL met with G13 on [two occasions in] April 2022 via Webex. She reported that G13 presented as mature and considered. He was able to articulate some of the risks in commencing stage 2 treatment and spoke about accessing information and research he had commenced some time ago.
37I have carefully considered the reports of the medical practitioners and the ICL which I have summarised above. I am satisfied on the basis of that evidence that G13 is competent to consent to stage 2 treatment, testosterone.
38Having regard to controversy which arises in relation to G13's father’s consent to treatment, I proceed to make a determination of this application according to the best interests of G13. The best interests of G13 are determined taking into account the considerations as set out in s 60CC(2) and (3) of the Act in so far as they are relevant.
G13'S BEST INTERESTS
39G13 has the diagnosis as set out at [21 - 22] above.
40Dr D specifically addressed the assertion or theory raised by others that Gender Dysphoria and/or transgender identity are abnormal, and that they arise as a consequence of psychological trauma from traumatic life events, particularly within important relationships. She reported that G13 has experienced adverse life events and psychological trauma. He has intermittent episodes of severe distress, agitation and deliberate self-harm. After a full discussion of this aspect of G13 and his treatment, Dr D opined that G13's mental health symptoms are not a sufficient cause or explanation for his gender feelings.
41Dr F referred to G13’s other diagnoses. Dr F discussed with G13 traumatic events in his childhood, his relationship with his father and his self-harming. Dr F reported that no physiological or medical conditions have been identified that could provide alternative explanation of G13's gender feelings.
42G13 lives with his mother, his stepfather, [and siblings]. G13 does not wish to see or have any communication with the father. The father has attempted to have contact with him.
43G13 is supported by his mother who believes testosterone treatment is in his best interests. Dr F reported that G13's mother's support is based on a genuine desire and ability to consider G13's best interests.
44The father said he consented to the orders sought by the mother as it is what G13 wants.
45G13 strongly wishes to access treatment. I have found he is Gillick competent to consent to treatment.
46Dr F reported:
63. I support [G13's] access to stage 2 gender affirming medical treatment (testosterone) as I believe that he has a long established male identity, he is supported in that gender by his mother and siblings, friends and school, and lives full time in all aspects of his life as a male. I feel withholding treatment would ultimately be harmful to [G13].
(as per the original)
47Dr D reported as to the impact on G13 of having access to treatment and of not receiving treatment. She reported he had acted in serious deliberate self-harm in the past, and she anticipated that if he were denied access to testosterone he would probably experience these thoughts and impulses again, be distressed and would need help and support from family and professionals to manage his emotional distress and stay safe, but he would be at high risk of acting in deliberate self‑harm.
48Dr D reported:
97. In my professional opinion [G13] has capacity to give informed consent to testosterone treatment, and it is in his best interests to be authorised to commence treatment according to his strong, longstanding wishes, and with the support of his mother
(as per the original)
49As to the change to G13's given names, the mother deposed that in 2020, G13 socially transitioned at school including in terms of his preferred name. He wishes to change his given names from [his birth name] to [his preferred name]. The father consented to the change in G13's given names but not to the surname.
50I am satisfied it is in the best interests of G13 that his given names be changed for the following reasons:
•He wishes to change his name and currently uses those given names.
•The use of those names is likely to have a positive effect upon G13 as he wishes to live entirely as a male, be recognised by others as male and strongly identifies as male.
•It has the potential to cause embarrassment to G13 if his name is inconsistent with his identity and Dr D reported if he is misgendered he feels unhappy and emotionally upset.
CONCLUSION
51I have considered the evidence in the context of the considerations as set out in s 60CC of the Act insofar as they are relevant.
52I find it is in G13's best interests that there be an order that the proposed stage 2 hormone treatment, being the administration of testosterone in such dose and manner, and with such frequency as determined by G13's medical treating team at Hospital A, be authorised.
53I further find it is in G13's best interests that his given names be changed as sought.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
16 JUNE 2022
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