Re: G4
[2021] FCWA 102
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RE: G4 [2021] FCWA 102
CORAM: DUNCANSON J
HEARD: 25 MAY 2021
DELIVERED : 4 JUNE 2021
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 and wishes to access stage 1 puberty blocking treatment - where the father's whereabouts is unknown - where the mother consents to the treatment - where it is found the child is Gillick competent to consent to treatment - where it is in the best interests of the child that a declaration be made to that effect - where it is in the best interests of the child that his given name be changed
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 D |
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
R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274
Re Imogen (No 6) (2020) 61 Fam LR 344
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: G4 has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1These proceedings concern [G4] who is 14 years and five months of age. G4 was born a female but strongly desires to be a male. G4 has been diagnosed with Gender Dysphoria.
2On 25 May 2021 I made the following orders and declaration.
1Service of the amended initiating application of the Applicant, XXX filed XXX upon the First Respondent, XXX be dispensed with.
2The proposed administration of stage 1 hormone blocker treatment to the child, XXX, (known as XXX) born XXX in such dose and manner and with such frequency is determined by the child's treating medical team at [Hospital A] be authorised by order of this Court.
It is declared that the Court having found that it is in the best interests of the child XXX born XXX that the child's given names be changed and that the said child henceforth be known as XXX.
4The Registrar of Births Deaths and Marriages Western Australia, do effect the required change to the said child's birth registration pursuant to the above order.
5The child’s full name, family members, 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.
6Only 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 further contrary order of a Judge.
7No person shall be permitted to search the Court file in the matter without first obtaining the leave of a Judge.
8The application be otherwise dismissed.
3These are my reasons.
THE PROCEEDINGS
4By amended initiating application filed 13 May 2021, the applicant, G4's mother seeks orders in the following terms:
1.The Applicant have leave to authorise the treatment of the child of the marriage, [G4] (known as XXX) born XXX with respect to Gender Dysphoria including Stage 1 hormone blocker treatment and such other treatment as may be recommended by his treating medical practitioners at [Hospital A] for the purpose of facilitating his gender reassignment.
2.The proposed administration of Stage 1 hormone blocker treatment to the child in such dose and manner and with such frequency as determined by his treating medical team at [Hospital A] be authorised by this Honourable Court.
…
7.There be a declaration that it is in the best interests of the child [G4] (known as XXX ("the child”) born XXX that his first given names be changed to XXX in the register of Births, Deaths and Marriage in the State of Western Australia.
8.The Registrar of Births Deaths and Marriages in the State of Western Australia be directed and is authorised to alter the Birth Certificate of [G4] to reflect the change in his given names from XXX to XXX.
(as per the original)
5The first respondent is G4's father. The applicant seeks an order that service of the application and the supporting documents upon the first respondent be dispensed with.
6By order dated 17 March 2021, the [Service A] was joined as a party to the proceedings as the second respondent. The Service A is the health service provider for Hospital A under the Health Services Act 2016 (WA).
7In its response filed 19 May 2021, the second respondent neither consents to nor opposes the final orders sought in the application. In its written outline of submissions filed 21 May 2021, the second respondent submits it does not consent to the treatment orders at this time. However, at the hearing, counsel for the second respondent clarified the second respondent's position, which was that the Court may be satisfied that G4 is Gillick competent to consent to treatment.
8G4 is represented by an Independent Children’s Lawyer, [Ms D]. The ICL supports the orders sought by the applicant.
BACKGROUND
9G4's parents began living together in 2003 and were married [in] 2005. They separated finally in 2012.
10G4 was born [in] 2007. G4 has a younger brother who was born in 2010. G4's mother is his primary carer and G4 has not spent time with his father since December 2019.
11The applicant is unaware of the first respondent's whereabouts. She deposed he has a history of mental health issues and chronic alcoholism/drug use.
12In June 2019 the applicant received a phone call from [Hospital B] advising her the first respondent had been assaulted and was in a coma. She was contacted as his next of kin and she sent a message to the first respondent's [relative] to let her know.
13The applicant last saw the first respondent in late 2019 when he stayed at her home for a short period as he had nowhere to go. Following an incident when the first respondent threatened [the] applicant the police attended her property and removed him. The applicant has not seen or heard directly from the first respondent since that incident.
14The applicant heard in late 2019 that the first respondent was homeless, had been experiencing [a medical condition] and had been found by a member of the public and taken to hospital.
15G4 has had no contact with the first respondent since December 2019.
16Although the first respondent has been estranged from his family for many years, on 20 January 2021 the applicant sent a message to the first respondent's [relative] enquiring as to whether they had any knowledge as to the first respondent's whereabouts or contact details for him. They replied they did not.
17The applicant has no other means of contacting the first respondent or ascertaining his whereabouts.
18In these circumstances I am satisfied it is appropriate that I make an order that service of the amended initiating application upon the first respondent be dispensed with.
THE EVIDENCE AND DOCUMENTS RELIED UPON
19The applicant relied on her case information affidavit filed 16 February 2021 and her affidavit filed 13 May 2021.
20The second respondent relied upon the affidavit of [Ms C], general counsel of the second respondent, filed 19 May 2021 to which are annexed reports from G4's treating practitioners.
21The second respondent filed an outline of submissions on 21 May 2021 upon which it relied together with its oral submissions.
22The ICL relied upon her affidavit filed 29 April 2021.
GENDER DYSPHORIA
23Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their gender assigned at birth (Re Imogen (No 6) (2020) 61 Fam LR 344 at [22] ("Re Imogen")).
24Stage 1 treatment is "puberty blocking treatment", the effects of which are reversible when used for a limited time. Stage 2 treatment or "gender affirming hormone treatment" involves the use of estrogen or testosterone, some of the effects of which are irreversible. Stage 3 treatment involves surgical interventions (Re Kelvin (2017)
FLC 93‑809 at [12] – [16]).
THE LEGAL PRINCIPLES
25In Re Imogen, Watts J considered the applicable legal principles relating to gender affirming treatment. At [28] to [34] his Honour stated with respect to the principles established so far:
28. In Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR 392 (Marion’s case), the High Court of Australia held that at common law and under the Family Law Act 1975 (Cth) a parent generally has power to consent to medical treatment of their child, but adopted the approach explained by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 402 (Gillick), that the parental power to consent on behalf of a child diminishes as the child’s capacities and maturities grow: a child is capable of giving informed consent, and a parent is no longer capable of consenting on the child’s behalf, when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed (at CLR 237; ALR 395; Fam LR 401 per Mason CJ, Dawson, Toohey and Gaudron JJ). This capability has become known as “Gillick competence”.
29. In Marion’s case, the High Court at CLR 250–2; ALR 405–6; Fam LR 410–11 drew a distinction between “therapeutic” and “non-therapeutic” procedures finding that non-therapeutic medical procedures and particularly those which in combination:
(a)Require invasive, irreversible and major surgery;
(b)Involve a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
(c)Where the consequences of a wrong decision are particularly grave, required court approval notwithstanding the consent of a Gillick competent child, of the child’s parents and the treating medication practitioners.
30. There is a controversy in this case as to what Re Jamie (2013) 50 Fam LR 369; (2013) FLC 93-547; [2013] FamCAFC 110 (Re Jamie) and Re Kelvin (2017) 351 ALR 329; 57 Fam LR 503; (2017) FLC 93-809; [2017] FamCAFC 258 (Re Kelvin) have decided about cases where there is dispute about consent or treatment. However as a starting point, the following is clear.
31. The Court has jurisdiction and power to determine a dispute, disagreement or controversy about consent by making an order or declaration as to Gillick competence under the welfare jurisdiction (s 67ZC of the Act); a parenting order (ss 64B(2)(i) and 65D(1) of the Act) or an order using the general powers conferred by s 34(1) of the Act (see Re Kelvin at [66]) including an order dismissing an application made under any of those sections. The Court has jurisdiction and power to determine a dispute, disagreement or controversy about treatment by making an order or declaration under the welfare jurisdiction or a parenting order.
32.In Re Jamie the Full Court determined:
(a)Stage 1 treatment was to be regarded as therapeutic. Stage 2 treatment fell within the ambit of Marion’s case because there was significant risk of the wrong decision being made as to the child’s capacity to consent to treatment and the consequences of such a wrong decision would be particularly grave (this conclusion was reversed in Re Kelvin), and
(b)In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there was no need for the Court to determine Gillick competence. A Gillick competent child can consent to stage 1 treatment and if the child is not Gillick competent, that child’s parents may consent, without court intervention, and
(c)In respect of stage 2 treatment, the Court is required to determine Gillick competence or otherwise authorise treatment (this was reversed in Re Kelvin).
33. In Re Kelvin, the Full Court determined that:
(a)Given the current state of medical knowledge, stage 2 treatment was therapeutic and was treatment for which consent no longer lies outside the bounds of parental authority or requires the imprimatur of the court (reversing the position in Re Jamie), and
(b)In respect of stage 2, if the child, the parents and the medical practitioners agree a child is Gillick competent, there was no need for the Court to determine Gillick competence (reversing the position in Re Jamie), and
(c)If all agree, a Gillick competent child can consent to stage 2 treatment, and
(d)If a child is not Gillick competent and the treating medical practitioners agree, the child’s parents can consent to stage 2 treatment without court approval.
34.For the sake of completeness, if all agree, the law is the same for stage 3 treatment and there is no necessity for this Court to determine whether the subject child is Gillick competent before stage 3 treatment for Gender Dysphoria can proceed (see Rees J in Re Matthew [2018] FamCA 161 (Re Matthew) at [46]).
26I respectfully agree with Watts J.
27With respect to the outstanding questions raised in that case Watts J concluded at [35]:
35.For reasons which follow, in relation to outstanding questions raised in this case, I conclude:
(a)If a parent or a medical practitioner of an adolescent disputes:
(i)The Gillick competence of an adolescent; or
(ii)A diagnosis of gender dysphoria; or
(iii)Proposed treatment for gender dysphoria,
an application to this Court is mandatory;
(b)Whether mandatory or not, once an application is made, the court should make a finding about Gillick competence of an adolescent. If the only dispute is as to Gillick competence, the court should determine that dispute by way of a declaration, pursuant to s 34(1) of the Act, as to whether or not the adolescent is Gillick competent, without the need to make a determination based upon best interest considerations. If a declaration of Gillick competence is made, then that is determinative of the only dispute before the court and the adolescent is left to determine their treatment without court authorisation;
(c)Notwithstanding a finding of Gillick competence, if there is a dispute about diagnosis or treatment, the court should:
(i)Determine the diagnosis;
(ii)Determine whether treatment is appropriate, having regard to the adolescent’s best interests as the paramount consideration; and
(iii)Make an order authorising or not authorising treatment pursuant to s 67ZC of the Act on best interest considerations;
(d)If a parent or legal guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner, who is willing to do so, should not administer treatment to an adolescent who wishes it, without court authorisation.
THE POSITION OF THE SERVICE A
28Integral to the second respondent's position is the decision in R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274 ("Bell").
R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274
29On 1 December 2020 the Administrative Division of the High Court of the United Kingdom delivered its judgment in Bell. The proceedings concerned a claim for judicial review of the practice of the defendant through its Gender Identity Development Service (GIDS) of prescribing puberty suppressing drugs to persons under the age of 18 who experience Gender Dysphoria. The sole legal issue in the case was the circumstances in which a child (under the age of 16 years) or young person (under the age of 18 years) may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained.
30The case concerned a female claimant who was referred to GIDS at 15 years of age and was first seen at 16 years of age. She was prescribed puberty blockers. She was given advice about the impact on her fertility, but her priority was to move to testosterone which she commenced at 17 years of age. She remained on testosterone for three years, but began to doubt the process of transition. Despite those doubts, at 20 years of age, the claimant had a double mastectomy. The following year the claimant decided she wished to identify as a woman and sought to return to her female identity.
31The conclusions of the Court may be summarised as follows:
•A child under the age of 16 years may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment, including an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences. The Court concluded there would be "enormous difficulties" in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of the medication.
•It is "highly unlikely" that a child aged 13 years or under would be competent to give consent to the administration of puberty blockers.
•It is doubtful that a child aged 14 or 15 years could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
•For children aged 16 years and over there is a presumption that they have the ability to consent to medical treatment given the long-term consequences of clinical interventions in the case and given that the treatment is as yet innovative and experimental, the Court recognised clinicians may well regard these as cases where authorisation of the Court should be sought prior to commencing treatment.
32The Court granted declarations accordingly.
33The decision in Bell has been appealed.
34The second respondent submits at [36] of its submissions:
36.Given the fact of the Bell dispute (and what the fact of the possibility of regret itself indicates as outlined above), the absence of any legislative framework, and the clear position that the question of Gillickcompetency and whether there is an adequate understanding of the consequences of the treatment in question are in effect value judgments of the clinicians in question, the First Respondent's position is that it considers it appropriate for this Court to exercise its welfare jurisdiction to consider the position. Given events of some other matters, it may now be said that will not be all cases, however will be appropriate in some cases.
(as per the original)
Service A review
35The second respondent submits it is in the process of reviewing its processes and procedures within the [Service B] to ensure that care and treatment provided is of the highest standard and consistent with any requirements identified as arising from recent Court decisions.
36The second respondent does not regard Bell as a barrier to treatment and submits it provides clarification or guidance as to the legal framework within which treatment decisions are to be made. The second respondent submits there is no intent to cease the treatment and new referrals can continue with decisions to be made in a transparent and robust decision making framework.
37The second respondent submits that following Re Imogen and possible implications which flow from the decision in Bell it has taken the view to change its current practices and procedures whilst a review of the Service B is undertaken.
38Pending the review the second respondent proposes a framework for conducting matters of this nature that:
(a)in all cases of treatment for Gender Dysphoria an application should be made to the Court seeking permission for treatment to proceed;
(b)the child should be separately represented;
(c)in matters of complexity or dispute, the Court might consider the assistance of a contravener; and
(d)in cases where the child is Gillick competent, 16 years of age or older and the parents consent to and support the treatment and there is agreement by the clinicians, the second respondent is likely neither to consent to nor oppose the application.
39The second respondent submits that the framework adopted while it undertakes its review of the Service B will enable the Court to address a matter (which may not be this matter) which might arise involving a significant degree of controversy or dispute.
THIS APPLICATION
40G4 meets the diagnostic criteria for Transsexualism, Gender Dysphoria and Gender Incongruence of Adolescence and Adulthood.
41There is no dispute between G4, the applicant, or G4's treating medical practitioners, all of whom consider that stage 1 treatment should commence. Had G4's father agreed to the treatment, there would have been no role for the Court. That is because a Gillick competent child can consent to stage 1 treatment and if the child is not Gillick competent the parents may do so without Court intervention.
42Gillick competence is established if G4 has achieved a sufficient understanding and intelligence to enable him 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")).
43In the circumstances of this case G4's father's views have not and cannot be obtained. In the absence of G4's father's consent to treatment, the treatment should not be administered to G4 without Court authorisation.
44As discussed below, the medical practitioners involved in G4's care report that G4 is Gillick competent to consent to stage 1 treatment. That is not determinative of the matter. In the absence of G4's father's consent I consider it necessary and accordingly propose to determine the application under the welfare jurisdiction of the Court pursuant to s 67ZC of the Family Law Act 1975 (Cth) ("the Act"). In doing so I shall have regard to the best interests of G4 as the paramount consideration.
45On 28 January 2021 a letter dated 21 January 2021 from [Dr E], the chief executive of the second respondent, was sent to parents of the patients of the Service B including the applicants. The letter stated there had been changes in the second respondent's Service B pathway to gender affirming medical treatment, being puberty suppression treatment, estrogen or testosterone treatment, for children and young people under 18 years of age. The letter explained the second respondent was conducting a review of its processes and set out the changes in the services pathway to gender affirming medical treatment.
46Relevantly the letter stated:
If your child is scheduled to start puberty suppression, Estrogen or Testosterone treatment at the [Service B], [Hospital A] for the first time: there will be a delay in the commencement of the treatment. As a result of the possible changes in the law, it may be considered appropriate and necessary for Court approval to be obtained prior to the commencement of any such treatment.
47The second respondent's position in its outline of submissions was that it did not consent to treatment at this time. At the hearing however, counsel for the second respondent informed the Court that she had received instructions that the second respondent neither opposes nor consents to the orders sought. Counsel for the second respondent confirmed that the second respondent did not wish to undermine the opinions of the clinicians and having read the reports, the second respondent was of the view that the Court may be satisfied G4 is Gillick competent.
48I have set out the second respondent's concerns in its outline of submissions at [49] below. Although that was not its position at the hearing, doing so demonstrates that I have considered these issues in my determination of G4's best interests.
49In its outline of submissions the second respondent submits that issues which might be described as controversy or in dispute include:
•the age of G4 being well under 16 years of age;
•there is no admissible evidence of the father's view;
•G4 reportedly smokes cannabis daily; and
•G4 and the applicant report abuse by the father.
50The second respondent submits these matters gave rise to a concern that G4 was not sufficiently engaged with the risks of treatment and the possibility of regret in circumstances where [Dr F] had interacted with G4 on one occasion of two hours when G4 was reported to undertake consistent substance abuse.
SHORT HISTORY
51From a young age G4 "always" presented as a "bit of a tomboy".
52The applicant deposed that about two years ago G4 told her he was gay, and then he came out to her as transgender. She sought medical advice and received a referral from G4's doctor to Hospital A, where he has since been diagnosed with Gender Dysphoria.
53The medical team at Hospital A have recommended G4 commence stage 1 hormone blockers, but are unable to progress his treatment due to the requirement for both parents' consent or an order of the Court.
54G4 currently wears a binder to disguise his chest development, which he finds very uncomfortable. G4 has shaved his head and wears masculine clothing. G4 has not formally changed his name, however he is referred to by the name XXX within the school community.
55G4 currently attends [School A]. The applicant deposed his progress is limited due to school resistance and she has completed home schooling with him.
56The applicant deposed she is very concerned about G4's welfare, particularly his mental health if he is not able to commence stage 1 hormone blockers.
57G4 suffers poor mental health and is under the care of the [Service C]. He has been prescribed Prozac for anxiety and depression and has a history of self-harm in cutting his arms and legs. G4 has attempted suicide by way of overdose on medication.
58G4 has expressed significant distress associated with his physical development.
59The applicant deposed G4 is "desperately keen" to commence stage 1 hormone blocker treatment and this is supported by the treating medical team at Hospital A.
IS G4 GILLICK COMPETENT?
60[Ms G], Clinical Psychologist of the Service B provided a report in respect of G4 dated 13 May 2021. Ms G reported that G4 has expressed a strong wish to be male and has consistently expressed a wish to access gender affirming medical treatment. Ms G described G4 as a competent minor with respect to having the intellectual capacity and emotional maturity to make stage 1 largely reversible puberty suppression treatment decisions. Ms G reported G4 understands information, remembers it and is able to weigh it up in relation to his own situation and he is able to communicate his wishes clearly.
61Ms G opined G4 clearly demonstrates the maturity and intellectual capacity to understand the short and long term implications of receiving stage 1 treatment. She is satisfied he is competent to consent to stage 1 gender affirming treatment, puberty suppression.
62Dr F, Consultant Child and Adolescent Psychiatrist of the Service B of Hospital A provided a report in respect of G4 dated 18 May 2021 containing a mental health assessment of G4. Dr F met with G4 and his mother on 17 March 2021. Dr F consulted with [Ms H], Mental Health Social Worker of Service C. Dr F reviewed G4's medical records and she has participated in Service B multidisciplinary team discussions regarding G4's care.
63Dr F reported G4 stresses a strong sense that he is male, wishes to live entirely as a male and be recognised by others as a male.
64Dr F considered whether G4 has the maturity and intellectual capacity to understand the short-term and long-term implications of receiving treatment. She presented her assessment of his capacity in an 11-point format.
•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 judgment 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 effect of treatment?
65Dr F reported G4 impressed as being of average intelligence, verbal and articulate. He had read and considered relevant information about puberty suppression. He was familiar with key information and showed he remembered, understood, and appreciated potential adverse effects.
66Dr F reported G4 was able to describe the advantages and disadvantages of the treatment and weigh them in the balance to arrive at an informed decision about whether to proceed with treatment. He understood that treatment could have consequences which could not entirely be foreseen at the time of the decision and he knew that puberty suppression was not expected to necessarily improve his anxiety and low mood.
67Dr F reported that at the interview G4 was calm, alert and appeared sober, not clinically intoxicated. In her opinion G4's capacity to engage in psychiatric assessment and assessment of capacity to consent to puberty suppression treatment was not impaired. Although G4's mental health has improved his Gender Dysphoria has continued.
68Importantly Dr F reported no temporary factors were present which could impair G4's judgment. G4 appreciated information provided to him in the fertility preservation counselling appointment and remembered and considered it. G4 is aware that regret and “detransition” is possible and that puberty suppression has incomplete and imperfect effects. Dr F discussed Bell and the criticisms of puberty suppression treatment with G4. She was satisfied he understood the discussion.
69Dr F reported as follows:
In my professional opinion [G4] has capacity to give informed consent to gonadotrophin releasing hormone analogue puberty suppression 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.
70I have carefully considered the evidence which I have summarised above. I am satisfied on the basis of that evidence, primarily that contained in the reports of Dr F and Ms G, that G4 is competent to consent to stage 1 treatment.
71In the absence of consent from G4's father I proceed to make a determination of this application according to the best interests of G4. The best interests of G4 are determined taking into account the considerations as set out in s 60CC(2) and (3) of the Act insofar as they are relevant.
72G4 has the diagnoses as set out at paragraph [40] above. G4 has an anxiety disorder (including elements of generalised anxiety, social phobia, and post-traumatic stress – related symptoms).
73G4 lives with his mother and younger brother. G4 does not have a relationship with his father at this time.
74G4 disclosed his desire to be a male to his mother in March 2019. G4 told his father of this at that time. G4's mother encouraged G4's views.
75G4 was exposed to family violence perpetrated by his father upon his mother. G4 is not at risk of harm by being subjected to, or exposed to family violence at this time while his father is not involved in his life.
76G4 suffered poor mental health in August 2019, including deliberate self-harm. At this time, he had been "out" to his family as transgender for only a few months and was noted to have a very significant history of traumatic life experiences related to his father's alcohol abuse and violence.
77G4 was referred for mental health care to the Service B and Dr F reported there has been a marked improvement in his mental wellbeing and everyday function. Dr F did however also report that given that G4 had previously had significant ongoing suicidal thoughts and impulses, she would be very concerned that refusal of access to puberty suppression would lead to a return and worsening of these symptoms, with serious risk of harm to himself.
78G4 has used illicit substances which he sees as self-medication for anxiety and depression symptoms. He has received advice about the risks associated therewith. Dr F reported G4 acknowledged some disadvantages of cannabis use, although he currently finds the calming and mood lifting effect are beneficial and, in his experience, outweigh the disadvantages.
79Dr F reported G4 is aware cannabis use is illegal.
80Dr F did not find that G4's history of cannabis use is a reason to question his judgment with regard to treatment decisions about puberty suppression especially since G4 has maintained stable identity and stable wishes for treatment with puberty suppression throughout times in which he has used cannabis and times in which he did not.
81Ms G reported that from a psychological viewpoint with stage 1 puberty suppression treatment, G4 would likely experience an immediate validation of his identity as a transgender male, and of his longstanding wish to commence medical gender affirming medical treatment. It is expected that the partial relief of dysphoria would have an overall positive effect on G4's mental health.
82Ms G reported that if the treatment was denied, G4 would experience strong disappointment and a sense of anger and injustice. This would have a negative effect on his mood and anxiety and may increase the risk of self-harm or suicidal thoughts or acts.
83Ms G reported she had consulted with Ms H. Ms H reported that G4 engaged very well in therapy, worked towards his goals and made significant improvement in his mental health. Ms H was of the view that puberty suppression would be of benefit to G4 as it would allow a further two years to facilitate his identity to be clarified and explored further without him having to be stressed about puberty development or irreversible effects on his body.
84Dr F reported from a psychiatric viewpoint access to treatment would in the short-term give G4 immediate psychological relief in that his wish to affirm his male gender has been recognised and in anticipation of the future outcome he desires. Treatment is likely to provide relief and reassurance in the medium-term and prevent the worsening of G4's Gender Dysphoria and to provide time for him to work on his mental health and recovery. The treatment may be of benefit in the long-term to help G4 being seen/recognised as a male by others.
85Dr F reported that if G4 should not be allowed to commence puberty suppression treatment she anticipated he would experience severe disappointment and a sense of injustice, unfairness, confusion and anger. There would likely be an exacerbation of depressive and anxiety symptoms.
86Dr F reported that G4's decision to live as a young man in all ways possible to him is essential to his wellbeing.
87Dr F reported when discussing the possibility of regret in relation to the treatment as follows:
He [G4] expressed strongly that "the only thing that keeps me going and makes me want to stay around [he clarified, this means to stay alive] is the hope of getting hormones." He expressed a clear weighing-up, that for him, the benefits he expects from puberty suppression treatment outweigh the medical risks of the treatment, and outweigh a possibility of contributing to future regret about future treatment.
88Clinical Associate Professor [Mr J], Paediatric Endocrinologist provided a report dated 14 May 2021. He reported:
In summary [G4] is a transgender male under evaluation for hormone treatment. There has been a long history of male gender identity. From the endocrine perspective there are no reservations to initiate stage 1 treatment.
89G4's mother deposed that her application for G4 to access treatment is becoming increasingly urgent given the pace of his unwanted breast development. The ICL met with G4 on 20 April 2021 and reported that G4 is medically exempt from sport due to wearing the binder, which causes significant discomfort. As a consequence of this, G4 is on anti-inflammatories.
CONCLUSION
90I have considered the evidence in the context of the s 60CC(2) and (3) considerations in so far as they are relevant. I find that it is in G4's best interests that there be an order which enables G4 to be treated with stage 1 hormone blocker treatment as recommended by his treating medical practitioners at Hospital A.
G4'S NAME
91An order as to a child's name is a parenting order and must be made in the best interests of the child, taking into account the considerations as set out in s 60CC(2) and (3) of the Act.
92I have taken into account those considerations to the extent that they are relevant in my discussion with respect to the order sought by G4's mother that G4 access stage 1 treatment.
93The applicant seeks a declaration that it is in the best interests of G4 that his first given names be changed to XXX in the Register of Births, Deaths and Marriages in the State of Western Australia.
94G4's given names at birth were XXX. The applicant deposed that as G4 has socially transitioned to male, he has chosen new names for himself consistent with his preferred gender.
95G4 is known by these names in his school community and it is important to him to change his name.
96G4 also told the ICL it was important to him to change his name. He recalled his father filling out forms, but they were never completed.
97Having considered G4's circumstances in the context of the s 60CC(2) and (3) considerations, I am of the view that there are no negative short or long-term effects of the change of name. It is likely to be embarrassing to G4 who has transitioned to male to be known and addressed by a female name.
98As the names which have been selected by G4 are consistent with his preferred gender, there is not likely to be any confusion of identity for him. G4's mother is supportive of the change of name. The position of G4's father is not known, although G4 told the ICL that at one time his father was prepared to sign the paperwork and agree to the change. G4 does not have a meaningful relationship with his father at this time and therefore the change of name is unlikely to impact on their relationship.
99This is a first change of name and is consistent with G4's current circumstances. G4 has not previously changed his name.
100G4 is not having any contact with his father at present and he identifies his mother and brother as his family.
101G4 has expressed a wish to change his name. He is reportedly mature and understanding of his own circumstances. G4's mother supports G4 in his aspirations and wishes and his father plays no role in his life.
102The change of name is what G4 wants and it is hoped it will avoid the need for him to be the subject of any further proceedings.
103In all the circumstances I am satisfied it is in G4's best interests that his name be changed as sought and I shall order accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
4 JUNE 2021