Re: G15
[2022] FCWA 125
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RE: G15 [2022] FCWA 125
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 has been diagnosed with Gender Dysphoria - where the mother seeks an order that service on the father be dispensed with - where there are allegations of family violence - consideration of the impact on the child of service on the father - order for dispensation of service refused
Legislation:
Family Court Rules 2021 (WA) r 58, r 96, r 122, r 136
Family Law Act 1975 (Cth) s 61C
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):
Ansah v. Ansah (1977) 2 W.L.R. 760
Sieling and Sieling (1979) FLC 90-627
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: G15 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 [G15] who was born [in] March 2006. G15 is 16 years and three months of age. G15 was born female but strongly desires to be a male. G15 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G15 using the male pronoun.
2By initiating application filed 27 January 2022, the applicant, G15's mother sought orders with respect to the administration of stage 2 cross hormone treatment to G15. The mother also sought orders for the appointment of an Independent Children’s Lawyer and an order that service of the application upon the first respondent, G15's father, be dispensed with.
3The application came before the Court on 15 March 2022. An order was made for the appointment of an Independent Children’s Lawyer ("ICL") and [Ms C] was appointed. An order was made that the hearing of the application be expedited. A notation was made on the Court record that the mother was to give consideration to service and possibly an application to dispense with service. The proceedings were adjourned to 15 June 2022.
4On 13 June 2022 the mother filed an amended initiating application. The orders sought by the mother in that application are as follows:
2 Final orders sought
1There be a declaration that the child [G15] born [in] March 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] be authorised by this Honourable 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 anyway.
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.
6Such further or alternate orders as this Honourable Court deems fit.
7There be a declaration that it is in the child’s best interests for the child's name to be legally changed to [G15's preferred name].
8Subject to the usual requirements of the Department of Births, Deaths and Marriages the Registrar of Births, Deaths and Marriages be requested to effect the change of name for the said child [G15] born [in] March 2006.
3 Interim or procedural orders sought
…
2That service of this application and any supporting documents upon the child's father…be dispensed with.
…
THE ISSUE FOR DETERMINATION
5The issue for determination is the order sought by the mother that service of her amended application and supporting documents upon the father be dispensed with.
THE MOTHER'S EVIDENCE
6The mother relies on her affidavit filed 13 June 2022 in support of the order sought by her that service upon the father be dispensed with. The mother and the father were married [in] February 2006 and separated in 2016. The mother deposed that the father was a perpetrator of family violence towards both herself and the children, most of which was perpetrated in the context of heavy alcohol consumption. The mother deposed the father was violent both verbally and physically, he destroyed household items and damaged the home. The mother deposed that she and the children were regularly terrorised by the father and he assaulted her on numerous occasions which often occurred in the presence of G15.
7The mother deposed the father was verbally and physically abusive to G15. She recalled the father throwing a drink bottle at G15's head and occasions where he would wake the children at night when drunk and verbally abuse them.
8The mother deposed the police were involved and she obtained a Family Violence Restraining Order against the father in or about 2015.
9After separation G15 did not have contact with the father. G15's younger [sibling] spent some time with the father.
10The mother deposed towards the end of 2018 the father informed her he was moving back to [Country A]. Neither she nor the children have seen him since.
11The mother, her partner and the children relocated to [State B] in June 2020.
12The father maintained intermittent contact with G15's sibling through [social media]. G15's sibling reported that the father was verbally abusive during the calls and highly derogatory about the mother. G15's sibling no longer wished to have any communication with the father and became increasingly unsettled. The mother blocked the father on [social media] in or about June 2021.
THE CHILD G15
13The mother deposed G15 has lived as a male for more than three years and strongly wishes for hormone gender affirming treatment (testosterone). She deposed G15 has strongly expressed to her he does not wish the father to know about his gender identity issue or be involved in any way.
14The mother is concerned about the father's potential response if G15's diagnosis and proposed treatment were to be made known to him, referring to his derogatory comments of people in the LGBTQ community.
15The mother expressed concern that G15's mental health will deteriorate, and he will be at risk of self-harm, if there is any delay in the decision making of G15's proposed stage 2 treatment or if information concerning his gender is shared with the father.
16The mother referred to the medical reports to which I refer below.
G15'S VIEWS
17G15 was interviewed by the ICL on 7 June 2022. The ICL discussed with G15 the question of his father receiving copies of the application and supporting documents including the medical reports. The ICL noted:
…[G15] confirmed that he would prefer if his Father did not receive this information. He said it would "freak him out" if his dad had the information about him. [G15] confirmed that this would be completely unknown to him. He said that if the Court determined he needed to know – he would be very uncomfortable with that. He does not want his father involved in his life.
(as per the original)
18The ICL supports the mother's application that service upon the father be dispensed with.
19[Dr D], Consultant Child and Adolescent Psychiatrist provided a report in respect of G15 dated 17 March 2022.
20Relevantly Dr D reported:
13. [G15] has not "come out" as transgender to his extended family in [Country A], as he feels safer to keep this private. [G15] and his mother think that [G15]'s biological father is not aware of [G15]'s male gender identity or chosen name, as they have never told him or other extended family members. [G15] and his mother are worried that [G15]'s biological father would respond negatively; they think that he would actively contact [G15] and would want to talk about [G15]'s gender in a way that would be likely to be upsetting and hurtful to [G15]. This is the reason why [G15] does not want to tell his father, and the reason why [G15] would prefer it if he could commence testosterone without obtaining [the father's] consent. [G15] and his mother are aware that the process of applying to the Family Court seeking authorisation for gender-affirming treatment is likely to lead to [the father] becoming aware that [G15] is transgender and wants this treatment; they indicated to me that they accept this likelihood.
(as per the original)
21[Ms E], Clinical Psychologist provided a report in respect of G15 dated 14 March 2022.
22Relevantly Ms E reported:
44. In relation to [G15]’s father, it is my understanding that he is unaware of [G15]’s male identity and neither I, nor any other member of the [Hospital A] [Service B] team, has had contact with [G15]'s father. It is my understanding that [G15] was prescribed stage 1 puberty blockers without his father’s knowledge and that this occurred prior to Re: Imogen (2020). I have had several conversations with [G15] around contacting his father about his gender identity and [G15]'s request for testosterone. [G15] has been clear that he does not want his father involved as he reports a significant history of domestic violence towards his mother and violence towards [G15] himself. [G15] alleges his father has an anger management problem and drinks alcohol. [G15] stated he is not afraid of his father knowing about him being a male, but his mother believes [G15]’s father might say hurtful things to [G15] and "lash out" at [G15]. Finally, [G15] reported he was happy to seek approval from the Family Court of WA instead of having to contact his father directly. [G15] is aware that the Family Court of WA may contact his father, to which [G15] said he would support if required by law and manage by speaking with [Hospital A] [Service B] clinicians or his own therapist if this action caused him distress.
(as per the original)
THE FATHER'S WHEREABOUTS
23The mother deposed that since the father's departure from [City C], aside from believing he is living in Country A, she has no current information as to his whereabouts or any means of communicating with him. She deposed she does not have any meaningful relationship with his parents or any of his other family members and has no addresses or telephone numbers for any of them.
24The mother has family in Country A living in the region where she believes the father is likely to be living. They are not aware of G15's diagnosis and G15 is concerned that if it is made known to the father, he will share it with those persons.
THE LEGAL PRINCIPLES
25The established principles in relation to the Court acting ex parte were set out by the Full Court in Sieling and Sieling (1979) FLC 90-627.
26The Full Court said at 78,254:
Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the Court. (See The Commissioner of Police v. Tanos (1957-58) 98 C.L.R. 383, 395-396; Lonard (1976) FLC 90-066 at p. 75,336.) For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.
27The Full Court at 78,254 referred to the decision of the English Court of Appeal in Ansah v Ansah (1977) 2 WLR 760, in which the Appeal Court reviewed the circumstances in which the Court should exercise its power to make ex parte orders in matrimonial cases, and stated:
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v. Kanssen (1943) K.B. 256, 262. Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. …
28The Full Court in Sieling went on to list matters which the Court should consider when asked to act ex parte, including the following:
• the nature and imminence of the risk to the applicant, to a child, to property interests or to a third party;
• any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte;
• where the order relates to property, whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages;
• the possible consequences of delaying the order until the respondent can be heard, and the steps which could be taken to give notice to the respondent;
• the need to protect the respondent by ensuring that the order is clear in its terms, that it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day.
29The Full Court decision in Sieling concerned injunctions made pending further order. The ex parte orders sought by the mother in this matter are not urgent interim orders, but final orders.
DISCUSSION AND CONCLUSION
30The father has properly been named as the first respondent pursuant to r 58(2) and r 96(2) of the Family Court Rules 2021 (WA). Rule 122(4)(a) requires service upon all parties to the case.
31Rule 136 provides for service with conditions or dispensing with service as follows:
136. Service with conditions or dispensing with service
(1)A party who is unable to serve a document may apply, without notice, for an order —
(a)to serve the document in another way; or
(b)to dispense with service of the document, with or without conditions.
(2)The factors the court may have regard to when considering an application under subrule (1) include —
(a)the proposed method of bringing the document to the attention of the person to be served; and
(b)whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served; and
(c)whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available; and
(d)the likely cost of service; and
(e)the nature of the case.
(3)A document is taken to be served if the court orders that service of a document is to be —
(a)dispensed with unconditionally; or
(b)dispensed with on a condition that is complied with.
32In the circumstances of this matter the mother seeks to dispense with service by reason of the impact upon G15 of the father becoming aware of the application. The mother also deposed she has no information as to the father's whereabouts.
33The mother has made allegations of serious family violence. Her evidence at this time contains allegations to which the father has not responded.
34It is clear that G15 does not wish the father to know about his preferred gender identity and his desire to access treatment. The mother is concerned that if the father is made aware of information concerning G15's gender identity, G15's mental health will deteriorate, and he will be at risk of self-harm.
35The mother's concerns are most likely sincerely expressed however they are not entirely consistent with the evidence of the clinicians involved in G15's care.
36Dr D reported that G15 and his mother are worried that the father would respond negatively and contact G15 and want to talk about G15's gender in a way that would likely be upsetting and hurtful to G15. However, Dr D further reported that both G15 and the mother are aware that the application to the Court is likely to lead to the father becoming aware that G15 is transgender and wants treatment. Dr D reported they indicated to her that they accept this likelihood.
37Ms E also discussed the issue of the father becoming aware of G15's male identity and request for testosterone and she reported the concern is that the father may say hurtful things to G15. Ms E reported in similar terms to Dr D that G15 is aware that the Court may contact his father, to which G15 said he would support if required by law and manage by speaking with Hospital A Service B clinicians or his own therapist if this action caused him distress.
38The evidence of the clinicians indicates that G15 is aware of the possibility of the application becoming known to the father. The evidence indicates he is accepting of that and will manage this by speaking to clinicians and his therapist.
39I also take into account that Dr D reported that G15 has engaged well in mental health care and has shown marked improvement and stabilisation in his mental health over the last three and a half years.
40Further Dr D reported the mother told her that she has noticed in the last six months, G15 has shown increasing emotional maturity as well as cognitive maturity.
41Similarly, Ms E reported as to G15 appearing to have made significant improvements in his mental health. In the context of whether G15 has the maturity and intellectual capacity to understand the short and long-term implications of receiving treatment, Ms E described G15 as a competent minor and she had no concerns for his intellectual capacity to consider the implications of treatment.
42In these circumstances I am not persuaded that the possible impact on G15 of the father being made aware of this application is sufficient reason to proceed without notice to the father.
43There are no other proceedings or current orders concerning G15. Pursuant to s 61C of the Family Law Act 1975 (Cth) ("the Act") the mother and the father each have parental responsibility for G15.
44The final orders sought by the mother are of great importance to G15 and have long-term consequences.
45I consider this application should not proceed without notice to the father.
46I now turn to whether the mother is unable to serve the application upon the father.
47Although G15 has not seen the father since the end of 2018, G15's younger sibling had contact with the father though [social media] until the mother blocked that in or about June 2021.
48The mother deposed she has no current information as to the father's whereabouts and similarly no addresses or telephone numbers for his parents or family members. She does not set out what efforts she has made to contact those persons if any, or what efforts could be made to do so.
49The mother deposed she has family in Country A living in the region where she believes the father is likely to be living. In these circumstances I consider a greater effort should be made to ascertain the father's whereabouts or alternatively to contact either his relatives or her own in an attempt to do so. The factors referred to in r 136 should be addressed, if the mother is unable to serve her application upon the father.
50I propose to give the mother an opportunity to serve, or attempt service upon the father. I am mindful that an order has been made that the hearing of the application be expedited. I am further mindful that in the circumstances of this application G15 is anxious to commence treatment and the medical evidence supporting that treatment is before the Court. The application will be listed for directions on 8 July 2022.
THE ORDERS
Until further order:
1The order sought by the applicant that service of the amended initiating application filed 13 June 2022 and supporting documents upon the first respondent be dispensed with, is refused.
2The applicant cause the first respondent to be served with the amended initiating application, supporting documents, the reasons for decision dated 21 June 2022 and this order.
3The proceedings be adjourned to 8 July 2022 at 9.30 am, for directions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
21 JUNE 2022
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