Re: G14

[2022] FCWA 123

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: RE: G14 [2022] FCWA 123

CORAM: DUNCANSON J

HEARD: 15 JUNE 2022

DELIVERED : 21 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 both stage 1 and stage 2 treatment - the procedures of [Service A] - where it is found the child is Gillick competent to consent to stage 1 treatment - where a declaration is made to that effect - where the father does not consent to treatment - where [Service B] will maintain its own internal diligence in assessing the child's capacity to consent to stage 2 treatment - where it is in the best interests of the child that an order be made authorising both stage 1 and stage 2 treatment

Legislation:

Family Court Act 1997 (WA) s 66C, s 162
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 Jamie (2013) FLC 93-547
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (Marion's case)

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: G14 has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

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 orders pursuant to r 311 Family Court Rules 2021 (WA).

1These proceedings concern [G14] who is 16 years and almost five months of age. G14 was born male but strongly desires to be a female. G14 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G14 using the female pronoun.

2On 15 June 2022 I made the following declarations and orders:

1There be a declaration that the child [G14] born [in] January 2006 is competent to give consent to the administration of stage 1 hormone blocker for her condition known as Gender Dysphoria.

2The stage 1 treatment and the 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.

IT IS DECLARED THAT the Court having found that it is in the best interests of the child [G14] born [in] January 2006, that the child's name be changed and that the child henceforth be known as [G14's preferred name].

IT IS FURTHER ORDERED THAT

6The Registrar of Births, Deaths and Marriages, Western Australia, do effect the required change to the child's birth registration pursuant to this order.

7The application otherwise be dismissed.

3These are my reasons.

4By initiating application filed 2 February 2022 the applicant, G14's mother, sought orders which included:

•a declaration that G14 is competent to give consent to the administration of both stage 1 hormone blocker treatment and 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; and

•a declaration that it is in the best interests of G14 that her given names be changed and an order that the Registrar of Births, Deaths and Marriages, Western Australia do effect the change.

5The first respondent is G14's father. On 15 March 2022 an order was made that in the event that the father opposed the orders sought by the mother, he shall within 14 days file and serve a response and case information affidavit. The father was served with the mother's documents on 9 March 2022. The Court also provided him with copies of those documents and the order made 15 March 2022. In a reply email he indicated he did not "intend fighting any of it". The father has not consented to treatment. He has not filed responding documents or a notice of address for service, as ordered. He did not attend the hearing on 15 June 2022.

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 18 February 2022 I made an order that G14 be independently represented at the further hearing of these proceedings. G14 is represented by an Independent Children’s Lawyer ("ICL"), Ms C. The ICL supports the orders sought by the mother.

BACKGROUND

8G14's parents began living together in 2005. G14 was born [in] January 2006. G14's parents separated in 2011. G14 lives with the mother and her [sibling]. G14 does not spend time with the father. G14's [sibling] has Autism Spectrum Disorder and an intellectual disability. [G14's sibling] spends time with the father and [step-mother] every third weekend.

9The mother deposed that in November 2019 G14 disclosed to her that she believed she was transgender and had felt that way since she was in Year 5 at school.

10The mother had concerns for G14's mental health and wellbeing. G14 was referred to [Service B] at Hospital A and has engaged with Service B since mid-2020.

11G14 has been diagnosed with Gender Dysphoria. G14 has socially transitioned. She has changed schools. Her mental health has improved since doing so and since engaging with Service B.

12The mother deposed G14 is very keen to formally change her name.

EVIDENCE AND DOCUMENTS RELIED ON

13The mother relied on her case information affidavit filed 2 February 2022. She also relied on reports from the following practitioners:

•[Dr D], Paediatric Endocrinologist dated 14 March 2022;

•[Mr E], Senior Clinical Psychologist dated 3 June 2022; and

•[Dr F], Consultant Child and Adolescent Psychiatrist dated 6 June 2022.

THE LEGAL PRINCIPLES

14In Re Jamie (2013) FLC 93-547 the Full Court determined that stage 1 treatment was to be regarded as therapeutic. In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there is no need for the Court to determine the Gillick competence of the child. A Gillick competent child may consent to stage 1 treatment and if the child is not Gillick competent, the child's parents may consent. In those circumstances the Court's intervention is not required.

15 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")).

16In Re Kelvin (2017) FLC 93-809 at [12] the Full Court described stage 1 treatment as follows:

Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately three to four years. Gonadotrophin releasing hormone analogue (GnRHa) are used for stage 1 treatment and are administered via injection with the aim of reducing the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty. It also allows the adolescent time to mature emotionally and cognitively such that they can achieve maturity sufficient to provide informed consent for stage 2 treatment. Stage 1 treatment is ideally commenced in the early stages of puberty (known as Tanner Stage 2) which can occur from the age of approximately nine to 12 years of age.

17In Re Kelvin (supra) 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.

18Further 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.

19If 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.

20In 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.

THE SERVICE A POSITION

21On 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

22G14 meets full diagnostic criteria for Gender Dysphoria (in adolescence) and Gender Incongruence of Adolescence and Adulthood and Transsexualism.

23There is no dispute between G14, the mother and G14's treating medical practitioners all of whom consider that stage 1 treatment should commence. As discussed below, the medical practitioners involved in G14's care report that she is Gillick competent to consent to stage 1 treatment.

24G14 wishes to commence stage 2 treatment (oestrogen). The medical practitioners within Service B are of the view that it is appropriate to offer puberty suppression rather than oestrogen at this time.

25The mother seeks an order that stage 2 treatment be authorised, to be administered in such dose and manner and with such frequency as determined by G14's medical treating team at Hospital A.

26This application was necessary as G14's father has not consented to treatment.

27The Court must determine whether it is in G14's best interests to authorise both stage 1 and stage 2 treatment.

28Accordingly, I shall determine the application pursuant to s 162 of the Family Court Act 1997 (WA) ("the Act"). In doing so I shall regard the best interests of G14 as the paramount consideration.

IS G14 GILLICK COMPETENT?

29Dr F has consulted with G14 since March 2021. She was satisfied that a thorough multidisciplinary assessment has been conducted at Service B in respect of G14.

30Dr F considered whether in her view, G14 has the maturity and intellectual capacity to understand the short-term and long-term implications of receiving treatment. She presented her assessment of G14's capacity in 11-point format as follows:

•Ability to comprehend and retain both 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?

31Dr F comprehensively discussed the above matters in relation to G14. 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.

32Dr F reported:

106. In my professional opinion, [G14] has capacity to give informed consent to puberty suppression treatment, that is she is Gillick competent in this regard.

(as per the original)

33Dr F opined that it was better to be cautious in supporting G14 to commence first the largely reversible puberty suppression treatment, for a period of six months or so, before considering supporting her to commence oestrogen which has irreversible effects. This would give G14 the opportunity to reflect on this experience in order to make a more informed decision regarding oestrogen.

34Dr F thought it likely that when G14 has been on puberty suppression for about six months and would be about 17 years of age, if her feelings and wishes remain the same, she will demonstrate that she has capacity to consent to oestrogen. At that time Service B may find it appropriate to support oestrogen commencement.

35Dr F's caution also related to G14's speech and language communication and her school learning difficulties.

36Dr F reported:

110. In my professional opinion, [G14] meets criteria for Gender Dysphoria, and has capacity to consent to puberty suppression treatment. In my opinion it is in her best interests to be authorised to commence puberty suppression treatment.

(as per the original)

37Mr E assessed G14 with respect to her request to commence stage 1 treatment for puberty suppression treatment.

38He reported G14 is likely to have average to low average intelligence. He believes that G14 does understand the likely effects of treatment, and that there are some potential social consequences of being a trans person. Mr E believes in balance G14 has capacity to consent to stage 1 treatment and has demonstrated considerable maturity towards having capacity to eventually consent to stage 2 treatment when the time comes for undertaking that treatment.

39I have carefully considered the reports of the medical practitioners which I have summarised above. I am satisfied on the basis of that evidence that G14 is competent to consent to stage 1 treatment.

40G14's father has not consented to treatment. The mother's application is for the authorisation of stage 2 treatment. I shall make a determination of this application according to the best interests of G14. The best interests of G14 are determined taking into account the considerations as set out in s 66C(2) and (3) of the Act insofar as they are relevant.

G14'S BEST INTERESTS

41G14 has the diagnoses as set out above.

42G14 lives with her mother and her [sibling]. G14 does not spend time with the father and the mother deposed to the best of her knowledge, G14 chooses not to communicate with him.

43G14 is settled in the care of the mother.

44G14 wishes to commence treatment. The mother described her as mature for her age and deposed she seems well aware of the risks and limitations of the proposed treatment.

45Dr F reported G14 strongly expressed her wish to be supported to commence oestrogen soon. Dr F opined it was better to be cautious in supporting G14 to commence first the largely reversible puberty suppression treatment, for a period of six months or so, before considering supporting G14 commencing oestrogen. Dr F reported G14 hopes the Court will authorise all indicated future gender-affirming treatment at this time, rather than requiring her to make a separate future application for oestrogen treatment.

46Mr E reported that he is comfortable that G14 has at least has capacity to consent to stage 1 fully reversible puberty suppression treatment. He is not yet fully confident that she appreciates the full significance of this later stage of treatment, although he feels she is progressing in this regard. He reported G14 accepts stage 1 treatment as a precursor to accessing stage 2 treatment, but she is strongly distressed by the possibility that this later stage of treatment will be unduly delayed by further Court processes.

47Mr E reported:

73. …If the court decides that they do not feel they need to provide oversight into [G14's] access to stage 2 treatment, [Service B] will maintain its own internal diligence in assessing [G14's] capacity after she has had a period of stability on stage 1 treatment and approval may be granted via our internal multidisciplinary Stage Review Panel (SRP) process.

(as per the original)

48The ICL met with G14 in April 2022. The ICL reported that as G14 understands it, stage 1 treatment is for a few months to enable a better transition for stage 2 treatment. The ICL reported that if G14 was unable to commence treatment, she would probably be suicidal.

49I have found that G14 is Gillick competent to consent to stage 1 puberty suppression treatment.

50Dr F reported G14 identifies as female and feminine with a stable, unchanging gender identity. Dr F reported as to the positive effects upon G14 of treatment in the short, medium and long‑term. Dr F reported should G14 not be allowed to commence puberty suppression treatment, she anticipated G14 would experience severe disappointment, and a sense of injustice, unfairness, confusion and anger. There would likely be an exacerbation of depressive and anxiety symptoms, which could become severe.

51Mr E reported in similar terms as to the effect upon G14 of receiving treatment and of not receiving treatment.

52I take into account that Service B have taken a cautious approach to G14's treatment and their opinion as to her Gillick competence at this time. I also take into account that stage 1 treatment is supported to give G14 an opportunity to experience the effects of that treatment and thereafter demonstrate that she has capacity to consent to stage 2 treatment, oestrogen.

53I do not consider it necessary for a further application to be made to the Court in respect of stage 2 treatment. I am satisfied that G14 should be treated by Service B, maintaining its own internal diligence in assessing her capacity, as foreshadowed by Mr E.

54As to the change in G14's names, the mother deposed G14 is very keen to formally change her name. Dr F reported G14 would very much like to change her legal name to [her preferred name].

55I am satisfied it is in the best interests of G14 that her given names be changed for the following reasons:

•She wishes to change her name and currently uses that given name as her preferred name. Dr F reported G14 has felt happy and comfortable using the name for the last two and a half years.

•The use of that name is likely to have a positive effect on [G14] as she wishes to live as a female and has maintained her expressed gender identity since November 2019.

•It has the potential to cause embarrassment to G14 if her name is inconsistent with her identity. Dr F reported G14 identifies as female and feminine with a stable, unchanging gender identity.

•Dr F reported that a legal name change to a chosen name that is congruent with gender identity, is often a very important, validating and beneficial step for transgender young people. Dr F also reported having consistent identification and documentation, can also be very important for a young person's safety from discrimination, bullying or other mistreatment, for example at school or public transport. Dr F concurred that a legal name change to [G14's preferred name] is likely to be beneficial to G14's emotional and social wellbeing.

CONCLUSION

56I have considered the evidence in the context of the considerations as set out s 66C of the Act insofar as they are relevant.

57I find it is in G14's best interest there be an order that the proposed stage 1 hormone blocker treatment and the proposed stage 2 treatment, being the administration of oestrogen, to be administered in such dose and manner and with such frequency as determined by G14's medical treating team at Hospital A be authorised.

58I find it in G14's best interests that her 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

21 JUNE 2022