Re: G5

[2021] FCWA 228

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: G5 [2021] FCWA 228

CORAM: DUNCANSON J

HEARD: 14 OCTOBER 2021

DELIVERED : 23 DECEMBER 2021

FILE NO/S: [Redacted]

BETWEEN: The Mother

Applicant

AND

The Father

Respondent

Catchwords:

CHILDREN - where the mother seeks an order that she and the father facilitate the child's referral to [Service A] at [Hospital A] for assessment as to any diagnosis of Gender Dysphoria - where the father opposes the order at this time - where the Independent Children's Lawyer supports the order - where the child wants to be assessed - where the father questions the approach of the Service A - where the father seeks an order that he be permitted to provide a report of [Dr D] regarding the assessment process to his nominated expert to critique the report - where the Position Paper of the RANZCP is discussed - where it is found to be in the best interests of the child to make the order sought by the mother - where the father is permitted to obtain a critique of Dr D's report

Legislation:

Family Court Rules 2021 (WA) Div 5, r 267(1), r 277
Family Law Act 1975 (Cth) s 67ZC

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
Respondent	:	Mr B
Independent Children's Lawyer	:	Mr C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

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

Re:Imogen (No 6) (2020) [61 Fam LR 344]

Re:Jamie (2013) 278 FLR 155

Re:Kelvin (2017) 351 ALR 329

WM and CEO For Department of Communities [2021] WASC 325

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: G5 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 [G5], who is [16 years] of age. G5 was born male and identifies as female. In these reasons, I shall refer to G5 using the female pronoun.

2G5 wants the opportunity to attend [Service A] at [Hospital A] to further explore her gender identity and access support and treatment if those are recommended.

3The applicant, G5's mother, supports G5's wish. The respondent, G5's father, accepts that G5 may be transgender and may identify with multiple gender identities. However, the respondent seeks to ensure he and the applicant have a detailed understanding of what Service A's assessment process involves and to be assured that it is in G5's best interests, prior to G5 proceeding with the same.

4In order to ensure the assessment process is in G5's best interests, the respondent seeks, amongst other things, to put clarifying questions to [Dr D] in relation to her report dated 14 September 2021, and obtain a critique of Dr D's report regarding Service A's assessment process.

THE PROCEEDINGS

5By application filed 30 April 2021, the applicant seeks final orders including the following:

1The Applicant Mother have sole parental responsibility for the child [G5] ("the child") born [in 2005] including, but not limited to all decisions in relation to the child's health including any assessments and treatment recommended by [Service A] at [Hospital A].

2Subject to the recommendations of [Service A] with respect to Stage 2 treatment of the child, being the administration of oestrogen in such dose and manner and with such frequency as determined by [the] medical treating team at [Hospital A] be authorised by this Honourable Court.

(as per the original)

6In his response filed 24 May 2021, the respondent seeks an order that the applicant's application be dismissed.

7G5 is represented by an Independent Children's Lawyer ("ICL"), [Ms E].

THE ISSUE FOR DETERMINATION

8The primary issue for determination is whether G5 should be referred to Service A at Hospital A for the purpose of assessment as to any diagnosis or otherwise of Gender Dysphoria as sought by the applicant and supported by the ICL. Alternatively, should the respondent first have an opportunity to provide the report of Dr D to his nominated expert to obtain a written critique of that report.

9In these interim proceedings, the applicant seeks the following orders as set out in a minute of proposed orders filed 1 October 2021.

1The Applicant ("Mother") and Respondent ("Father") forthwith take all steps and sign all documents necessary to facilitate the referral of the child [G5] born [in 2005] ("the Child") to [Service A] at [Hospital A] for the purposes of assessment by the [Service A] team as to any diagnosis or otherwise of gender dysphoria and any associated recommended treatment.

2In the event that the Father fails to sign or return any consents/ authorities as may be requested by [Service A] within 7 days of any such request associated with the child's assessment and access to their service, the father's consent be dispensed with and the Mother be at liberty to solely authorise any assessments as may be recommended by [Service A], provided that she authorise the release of any information arising from any such assessments as may be reasonably requested by the Father.

3The Mother be at liberty to provide a copy of this order to the CEO of [Service B].

4There be liberty to the parties and Independent Children's Lawyer to apply at short notice for a relisting of the matter in the event that any recommendations are made by [Service A] with respect to hormonal treatment for the child and the parties are otherwise unable to reach an agreement with respect to the commencement of any such treatment.

5Such further or alternate orders as this Honourable Court deems fit.

(as per the original)

10In a minute of interim orders sought filed 8 October 2021, the respondent seeks the following orders:

Subpoena

1The Respondent have leave to issue subpoena to:

(a) [Service C];

(b) [Service B]; and

(c) [Service D].

Appointment of Expert

2The Respondent have leave to provide a copy of the report of [Dr D] dated 14 September 2021 concerning the subject child of these proceedings to his nominated expert, to facilitate his nominated expert preparing a written critique of that report.

Questions to [Dr D]

3The parties have leave to issue clarifying questions [Dr D] in relation to her report dated 14 September 2021 concerning the subject child of these proceedings.

Procedural

4The proceedings otherwise be listed to a date not before 14 January 2022 for monitoring hearing.

(as per the original)

11The ICL supports the orders sought by the applicant.

BRIEF BACKGROUND

12G5's parents began living together [in 2001]. They were married [in 2003]. They separated finally [in 2014].

13G5 was born [in 2005], and in childhood, was diagnosed with [Condition A] and [Condition B]. G5 has a younger [sibling] who was born [in 2006]. G5 lives with the applicant, her [sibling] and her stepfather.

14The applicant deposed that G5 shared that she identified as "trans" in mid-2020, and G5 currently has a strained relationship with the respondent, as he refuses to acknowledge her gender transition and has objected to her assessment at Service A.

15G5 was referred to Service A at Hospital A, where G5 had one initial triage appointment [in] March 2021. The applicant deposed G5 has not been able to progress her assessment and treatment through Service A as the respondent is opposed to her doing so.

16The applicant deposed G5 refuses to see or speak to the respondent or go to his home for visits. The applicant referred to G5's anguish arising from the respondent's rejection of her preferred gender identity, although she deposed G5's overall mental state has been calm, happy and upbeat.

17The respondent lives with his partner and deposed that at separation, the parties agreed the children would live with the applicant and spend one night per week with him. He deposed he first learned of G5's desire to transition in September 2020, and G5 stopped spending time with him in February 2021, but G5's sibling continues to do so.

18G5 attends [School A], where she is completing Year 10. She receives special education support in some areas due to her diagnosis of Condition A.

19On 26 July 2021, the Head of [cohort] at School A, [Mr F], wrote to the ICL in response to a request for information. Mr F reported that G5 self-initiated a transition from [G5's birth name] (he/him) to [G5's preferred name] (she/her) in late August 2020. Mr F reported G5's attitude to school is generally positive, and there are no significant educational concerns. Mr F reported contact with the applicant has been ongoing and supportive however, the respondent "made it clear he was not supportive" and was critical of the school's support of G5's transition.

20On 24 July 2021, G5's treating psychologist, [Mr G], [of] [Service D] and [Service E], provided a psychological report in respect of G5. He reported that adolescents with Condition A disorders will have increased risks when also experiencing gender variance, and expert and specialised collaboration between Condition A treatment specialists and interdisciplinary gender care is essential to promoting the healthy development of these young people.

21Mr G is supportive of a referral to Service A at Hospital A as this service is "clinically best suited" to assist G5 to receive further specialist assessment and support. In response to a question by the ICL, Mr G reported G5's wellbeing would be positively impacted by having access to further information, clinical assessment and specialist support from Service A.

THE EVIDENCE AND DOCUMENTS RELIED UPON

22The applicant relied on her case information affidavit filed 30 April 2021, and her affidavit filed 5 October 2021.

23The respondent relied on his case information affidavit filed 24 May 2021, and his affidavit filed 8 October 2021.

24The ICL relied on her affidavits filed 26 July 2021, 27 September 2021 and 12 October 2021.

25Various documents were tendered into evidence, including those to which I refer below.

GENDER DYSPHORIA

26Gender Dysphoria, as defined in the diagnostic and statistical manual of mental disorders, fifth edition ("DSM-5"), refers to marked incongruence between one's experienced or expressed gender and one's assigned gender, associated with clinically significant distress or impairment in functioning.

THE LEGAL PRINCIPLES

27The application at this stage does not concern the treatment of G5 for Gender Dysphoria. G5 has not been diagnosed with Gender Dysphoria. The question is whether or not G5 should be assessed by Service A.

28I accept the applicant's submission that the dispute with respect to the assessment of G5 in relation to a potential diagnosis and treatment options raises similar considerations to those cases where diagnosis and treatment have been the subject of dispute between the parents.

29The legal principles with respect to disputes between parents of children with Gender Dysphoria are established in the cases of Re: Jamie (2013) 50 Fam LR 369; Re: Kelvin (2017) FLC 93-809 and Re: Imogen (No 6) (2020) 61 Fam LR 344.

30In Re: Imogen, Watts J considered the applicable legal principles relating to a child's capacity to provide informed consent to medical treatment. At [28], 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".

31There is no dispute between the applicant and the ICL, both of whom seek an order that G5 commence the assessment process.

32Even if G5 is found to be Gillick competent to consent to participating in the assessment process, the matter requires a determination by the Court having regard to the dispute between the parties by reason of the respondent's opposition to G5's participation in the assessment process at this time.

33In the circumstances, I intend to determine the dispute 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 G5 as the paramount consideration and give weight to her views having regard to her maturity or level of understanding.

REPORT OF DR D

34The starting point in the determination of this matter is the report dated 14 September 2021 prepared by Dr D, Consultant Child and Adolescent Psychiatrist of Service A, Hospital A. Dr D's report was prepared in response to a letter of request by the ICL dated 9 June 2021, in which the ICL sought general information about waiting lists and procedures at Service A. The letter sought confirmation of various matters regarding the time frames and approach involved when a child engages with [Service F]. Dr D's report contains her detailed response.

35In her report, Dr D set out her qualifications, experience, and professional expertise, including with respect to gender matters in children. She stated:

I would be considered to be [an expert] in the psychiatric aspects of gender dysphoria and gender identity concerns, and their coexistence with other mental health conditions and adverse life experiences and [Condition A] disorder, in children and adolescents, in [the State].

36Dr D has not been appointed as an expert in these proceedings. Her report is not an expert's report. The rules in Div 5 of the Family Court Rules 2021 (WA) ("the Rules") with respect to expert evidence do not apply to her evidence pursuant to r 267(1) as Dr D is a medical practitioner whose evidence relates to a description of treatment carried out or recommended or expressions of opinion with respect to treatment.

THE RESPONDENT'S POSITION

37The respondent seeks an order permitting him to provide a copy of Dr D's report to his nominated expert for a critique of that report, following upon which he may apply for permission to tender a report or adduce evidence from his expert pursuant to r 277. The respondent's position is that he should have a detailed understanding of the assessment process before G5 embarks upon it. Consequently, G5 should not commence the assessment process until the respondent has obtained feedback from his expert.

38The respondent deposed that his expert would critique Dr D's report specifically:

(a)The strengths and limitations of the assessment process proposed by [Dr D]; and

(b)Alternative assessment processes, and their strengths and limitations.

The RANZCP Position Statement

39The respondent referred to a Position Statement published in August 2021 by the Royal Australian and New Zealand College of Psychiatrists ("RANZCP"), namely Position Statement 103: Recognising and addressing the mental health needs of people expressing Gender Dysphoria / Gender Incongruence ("the Position Statement"). He considers some of the key points raised in the Position Statement to be highly relevant to the question at issue, being those set out at [16] of his affidavit. The respondent deposed that having read the report of Dr D in the context of the Position Statement, he has a range of concerns. In submissions, his concerns included the following:

40Firstly, Mr B referred to the second of the "Key messages" in the Position Statement which provides as follows:

There are polarised views and mixed evidence regarding treatment options and mixed evidence regarding treatment options for people presenting with gender identity concerns, especially children and young people. It is important to understand the different factors, complexities, theories, and research relating to Gender Dysphoria.

41Emphasising the context in which G5 is presenting, Mr B also referred to the sixth of the "Key messages" in the Position Statement as follows:

Comprehensive assessment is crucial. Assessment and treatment should be evidence-informed, fully explore the patient's gender identity, the context in which this has arisen, other features of mental illness and a thorough assessment of personal and family history. This should lead to a formulation. The assessment will be always responsive to and supportive of the person's needs.

42The respondent's position is that the context of family background is important in the circumstances of G5. Mr B submitted that G5 has a complex medical background, with the respondent deposing as to G5's diagnosis of Condition A and Condition B, and G5 is not mature enough to make the decision as to the assessment herself.

43The respondent is concerned that G5 is being influenced (directly or indirectly) by her friendship group and the applicant to continue this transition. He opined G5 is socially awkward and adopts different personas to fit in with social situations.

44The respondent deposed that G5 broke up with a girlfriend in 2019 and in 2018 and 2019 she was a member of [an online community]. The respondent deposed within this community, G5 identified as [male]. The respondent deposed G5 has friends who are members of the LGBT community and expressed concern about G5's work with her employer.

45The thrust of the respondent's argument was that, having regard to the Position Statement and its key messages, the Court should make a reasoned assessment of how differences of views should be accommodated in the context of G5's background.

46Secondly, Mr B referred to the role of psychiatrists as set out in the Position Statement in which the RANZCP encourages psychiatrists to be aware there are multiple perspectives and views. The relevant passages in the Position Statement include the following:

There are polarised views and mixed evidence regarding treatment options for people presenting with gender identity concerns, especially children and young people.

…

[E]vidence and professional opinion is divided as to whether an affirmative approach should be taken in relation to treatment of transgender children or whether other approaches are more appropriate.[24]

A gender affirmative approach endorses the belief system that children should be able to 'live in the gender that feels most real or comfortable to that child and to express that gender with freedom from restriction, aspersion, or rejection' therefore the child's statements regarding their gender identity should not be questioned, but instead accepted.[29] Affirmative approaches may include consideration of the need for medical treatments including gender affirming hormones, gonadotrophin releasing hormone analogues (GnRH) (in children and adolescents) and surgery. Approaches which don't include medical treatments may focus on utilising psychotherapy to aid individuals with Gender Dysphoria in exploring their gender identity, and aid alleviation of any co-existing mental health concerns identified in screening and assessment.[24]

47Thirdly, Mr B submitted that the RANZCP does not preference an approach, given that the Position Statement discusses the roles of psychiatrists and states:

There are a number of guidelines and resources available which relate to Gender Dysphoria.[19-27] The RANZCP does not preference any specific guidelines. The RANZCP encourages psychiatrists to be aware there are multiple perspectives and views.

48Mr B submitted that having regard to the divergence of professional opinion, the Court should have information as to the differences of view. He submitted Service A have the monopoly of treatment of Gender Dysphoria in [the State] and follow a gender affirmative approach. In these circumstances, Mr B submitted Dr D's report should be provided to another expert for review and critique as the respondent wants to know what the spectrum of professional opinion is.

49Mr C referred to the respondent's reference at [16(a)] of his affidavit to the Position Statement that evidence and professional opinion is divided as to whether an affirmative approach should be taken in relation to treatment of transgender children or whether other approaches are more appropriate.

50Mr C referred to a reference list contained in the footnotes of the Position Statement which include:

[24]World Professional Association for Transgender Health. Standards of Care for the Health of Transexual, Transgender, and Gender Nonconforming People 2011.

51Mr C submitted that the respondent's interpretation of the Position Statement was misconceived and there was no divergence as to the best practice for assessment. Mr C submitted the respondent has misinterpreted the Position Statement. The Position Statement's reference to controversy about the gender affirming approach was with respect to children, whereas the WPATH Standards of Care distinguishes between children, adolescents and adults. The substance of Mr C's submission was that the Position Statement referred to controversy about the gender of children and not adolescents. Consequently, Mr C submitted the basis for the critique as sought by the respondent fell away.

52There is a distinction between children, adolescents and adults in the WPATH Standards of Care. In these proceedings, the words "child" and "adolescent" appear to have been used interchangeably. The Position Statement also refers to the gender identity of an "individual" or "people presenting with gender identity concerns, especially children and young people". The Position Statement as a whole is not confined to children as there are many references to both children and adolescents. The reference in the Position Statement to "polarised views and mixed evidence" is with respect to people presenting with gender identity concerns, especially children and young people.

53Mr C submitted that the WPATH Standards of Care aligns with Service A's approach as described by Dr D and provided various examples in support of his submission. Mr C further submitted the respondent incorrectly equates gender affirming treatment with an approach that "peddles" gender diversity.

The RANZCP Position Statement and the Service A Approach

54After careful consideration of the Position Statement and Service A's approach as outlined in Dr D's report, I am of the view that the Service A assessment process as set out by Dr D aligns with and is not contrary to the Position Statement. My reasons for that view include the following:

55The Position Statement outlines that "Psychiatric assessment and treatment must also occur in accordance with professional standards".

56Dr D outlined her qualifications and confirmed that the assessment and treatment process is conducted in accordance with international and Australian guidelines:

Eligibility for gender-affirming medical treatment is in keeping with international guidelines … and is informed by Australian guidelines (Australian Standards of Care and Treatment Guidelines version 3, Telfer et al, 2020).

57As described above at [47] the Position Statement refers also to the Australian Standards where it states:

There are a number of guidelines and resources available which relate to Gender Dysphoria.[19 - 27]

58Footnote [22] is as follows:

[22]Telfer M, Tollit M, Pace C, Pang K. Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents Version 1.3. Melbourne: The Royal Children's Hospital; 2020.

59The Position Statement further notes:

The RANZCP emphasises the importance of the psychiatrist's role to undertake thorough assessment and evidence-based treatment ideally as part of a multidisciplinary team, especially highlighting co-existing issues which may need addressing and treating.

60Dr D referred several times to the multidisciplinary approach taken by Service A, highlighting the importance of this within the context of G5's diagnosis of Condition A:

Commencement of a gender-affirming medical treatment is approved in appropriate cases, after formal [Service A] multidisciplinary team review of the first and second mental health opinion findings, Endocrinology assessment, and fertility considerations.

…

A compassionate and flexible multidisciplinary team approach which allows some time for careful exploration of the context and the meanings of the child's feelings and body experience, but also is open to the possibility of puberty suppression treatment after thorough assessment, only if it is strongly requested by the young person, and if it is considered to be in the child's best interests, seems reasonable.

…

In my clinical experience, there is consensus among Australian clinicians in gender health services that decisions about medical treatment – especially treatments which have irreversible effects - for gender dysphoria in young people who have [Condition A] should be considered carefully in an unhurried way, and should follow thorough multidisciplinary clinical assessment over some time.

61The Position Statement outlines that:

Psychiatric assessment and treatment should be both based on available evidence and allow for full exploration of the person's gender identity.[20] ... Psychiatric assessment and treatment must also occur in accordance with professional standards, and in a way which is person-centred, responsive to and supportive of the person's needs.

62Dr D referred to the individual and person-centric approach taken for each patient referred to Service A:

In making decisions about how to triage urgency of access to [Service A], the clinical team consider several factors including, but not limited to, how long a young person has been experiencing or expressing gender-related concerns, and the young person's individual characteristics related to their age, stage of pubertal development, mental health, physical health, and life situation.

63The Position Statement reiterates the importance of mental health outcomes, and outlines that:

Psychosocial support should be continuously offered and provided to people and their families before, during and after any treatment to maximise positive mental health outcomes.[20]

64In this regard Dr D emphasised the importance and availability of mental health resources available to patients through Service A, and confirms that as part of the assessment process, patients participate in comprehensive mental health assessments, and are able to access treatment on an ongoing basis.

Further assessment over several appointments would be needed before any such treatment could be offered, should [G5] continue to wish for and request it in future.

…

If a young person and family wish for further assessment with [Service A], and this is deemed appropriate by [Service A], the next step is to book an appointment for a Comprehensive Mental Health Assessment with a Clinical Psychologist or Consultant Psychiatrist. This would be the next stage if [G5] were to continue care with [Service A].

The RANZCP Position Statement and the Respondent's Evidence and Submissions

65Although the respondent relied on the Position Statement in noting the range of views and opinions, there are aspects of the respondent's evidence and submissions which are inconsistent with the Position Statement.

66As noted above at [46] the Position Statement outlines RANZCP's view that the Gender Affirmative approach does not promote a certain type of treatment or gender identity, but rather accepts the child's statements about the identity that "feels most real or comfortable to that child".

A gender affirmative approach endorses the belief system that children should be able to 'live in the gender that feels most real or comfortable to that child and to express that gender with freedom from restriction, aspersion, or rejection' therefore the child's statements regarding their gender identity should not be questioned, but instead accepted.[29]

67This aligns with Service A's approach to gender affirming treatment, whereby it is affirmed that "all gender identities are OK". Dr D described the approach as follows:

[Service A] affirms that all gender identities are OK, it is not better to be cisgender or better to be transgender; and [Service A] does not have a goal or agenda as to what the young person's long-term gender identity will prove to be.

68Dr D further described Service A's approach whereby the person is asked curious questions and is gently challenged:

The best way to understand a person's gender identity is to listen to the person, and talk with them about their thoughts, feelings, and experiences, asking curious questions to encourage them to explore identity (including gentle challenge to consider other possibilities), and to support them in living in ways that express their gender in ways that feel most appropriate and comfortable to the person, so that they can develop their self-knowledge over time.

69At [12(c)] of the respondent's affidavit, he quoted part of the above paragraph, (although erroneously referred to it as [74]) as follows:

The best way to understand a person's gender identity is to listen to the person, and talk to them about their thoughts, feelings and experiences … and to support them in living in ways that express their gender in ways that feel most appropriate and comfortable to the person, so they can develop their self-knowledge over time.

70The respondent excluded the following words from his quote of the paragraph:

[A]sking curious questions to encourage them to explore identity (including gentle challenge to consider other possibilities).

71The respondent's position is contrary to the Position Statement with respect to the use of preferred pronouns. The Position Statement notes as follows:

Using the individual's preferred terms, especially pronouns, is very important for trans, gender diverse and non-binary people. Healthcare providers should not refer to someone using terms or pronouns that are against the individual's wishes.

72A cause of difficulty between the respondent and G5 is the respondent's refusal to use G5's preferred name and pronouns. The applicant submitted G5 chose her preferred name and expressed her preferred pronouns to be she/her in October 2020. In the respondent's affidavit he referred to G5 as "my child" and used "they/them" pronouns. Dr D also noted the respondent's refusal to use G5's preferred pronouns:

I also spoke to the young person's father … on 24 March 2021, who told me that he does not believe it is appropriate to call the young person [G5's preferred name] and/or to use female pronouns, and stated that he calls the young person [G5's birth name] and uses male pronouns.

73G5 reported to Mr G that her father refuses to use her preferred pronouns. Mr G noted:

[G5] also reports her father was not supportive of her decision and refuses to affirm or acknowledge her preferred gender, refers to her by her birth name ([G5's birth name]), does not use correct pronouns and "insisted" she wear male clothing when she was under his care.

74Mr F referred to the use of pronouns as follows:

The only concerns raised by teaching staff recently has been for advice on talking to [G5's] father given the disagreement between parents of support for [G5's] preferred pronouns and preferred name. Teachers will follow our Gender Support Plan (attached) and use [G5's preferred name] her/she whereas Dad will use [G5's birth name], He/him.

75The Position Statement notes that that polarised views can be unhelpful and can make the task of clinicians assisting young people presenting with complex presentations more difficult, and that while these debates must be acknowledged, the most important goal currently is to ensure there is adequate care available to meet the mental health needs of people experiencing Gender Dysphoria.

76The Position Statement confirms that it has been developed from the perspective of psychiatry, and that:

Each case should be assessed by a mental health professional, which will frequently be a psychiatrist.

77The Position Statement further confirms that:

Psychiatric assessment and treatment should be both based on available evidence and allow for full exploration of the person's gender identity.[20] The RANZCP emphasises the importance of the psychiatrist's role to undertake thorough assessment and evidence-based treatment ideally as part of a multidisciplinary team.

78As discussed below, neither of the experts proposed by the respondent to critique Dr D's report namely, Dr H or Professor I, are psychiatrists. Dr H is a [doctor], and Professor I is a [Professor and psychologist] amongst other qualifications.

79It is unclear whether Dr H or Professor I conduct assessment or treatment within the context of a multidisciplinary framework. In contrast, Dr D is a psychiatrist, a fellow of the RANZCP and conducts assessment and treatment within a multidisciplinary framework.

80Having regard to these matters, it appears the respondent may not have fully considered aspects of the Position Statement which are inconsistent with his position with respect to Service A's assessment process.

The treatment approach of Hospital A

81An issue arising from the respondent's evidence and submissions concerned the approach of Hospital A. At [20] of his affidavit, the respondent referred to an article in [Publication A] discussing a recent Supreme Court decision concerning a Gender Dysphoria matter. That article referred to [the review of the treatment approach of [Hospital A's] gender clinic, reportedly because the State Solicitor's Office was concerned about possible litigation by patients who later regret "gender affirming" medical intervention].

82The respondent incorrectly stated at [21] of his affidavit that Dr D made no mention of any such review in her report. In fact, at [130] of her report Dr D referred to the review which she stated has been concluded and a communication has been issued from the Service B Executive to all patients and families attending Service A. Dr D reported as follows:

From December 2020 to July 2021, [Service B] carried out a thorough review of [Service A], in particular processes related to assessment and informed consent and documentation. This review has been concluded and a communication has been issued…to all patients and families attending [Service A], stating "[Service B] is fully supportive of [Service A] and the provision of gender affirming care to children and young people."

83A statement from Service B to Service A [dated in] 2021 became exhibit 5. The background to the statement is that [in] January 2020 Service B directed that no child or young person was to commence stage 1 or stage 2 treatment at Service A without court approval or legal advice confirming that treatment may commence. The direction remained in place pending an audit on consent processes and further legal advice for consideration by the Service B Board. The statement provides:

From today, [Service B] will use consent procedures that are in line with best clinical practice, current Australian legal context and [Service B] 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 the care of [Service F]

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

•Parents/ legal guardians and the child

•Parents/ legal guardians and [Service A]

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

Court authorisation for stage 2 treatment is required if:

•The child is in the care of the [Service F]

•The child is not Gillick competent

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

•Parents/ legal guardians and the child

•Parents/ legal guardians and [Service A]

•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 A].

This change is effective immediately.

84I have carefully considered the respondent's arguments including in the context of the documents relied upon by him.

85I am satisfied Dr D's report as to the processes of Service A demonstrates that they are aligned with the Position Statement and the assessment process is conducted within appropriate guidelines and appropriate resources as referred to at [47] above. I place weight on Dr D's report in this interim determination.

The respondent's proposed experts

86The respondent proposes that pursuant to r 277 Dr H or Professor I be appointed as an expert to critique Dr D's report. The respondent deposed Dr H is available to act as a single expert witness, although Mr B clarified in oral submissions that the respondent would not be seeking the appointment of a single expert witness, rather the respondent's own expert.

87The respondent deposed Dr H is a [medical expert] and set out his qualifications.

88In the recent decision of the [State] Supreme Court, [Citation omitted] to which the respondent referred in the context of Publication A, mention was made of Dr H and of Dr D. [Their Honour] stated Dr H [works at] [University A] and that Dr H reported he has written and spoken widely on childhood Gender Dysphoria, although he does not treat transgender patients himself. Their Honour further stated that Dr H's contribution to the debate surrounding Gender Dysphoria has been concentrated on [journals] such as [Publication B]. [Their Honour stated] Dr H [expressed scepticism as to the reality of Gender Dysphoria as a medical condition]. Dr H was quoted as saying he thought of it as a ["psychological epidemic"]. Dr H accepted in re‑examination in that case that Gender Dysphoria is a legitimate diagnosis under the DSM-5.

89It appears Dr H does not support gender affirming treatment and has expressed scepticism of the condition itself. It is not unreasonable to expect that those views may be reflected in his report.

90Exhibit 2 is correspondence passing between the respondent's solicitors and Dr H, attaching Dr H's "Witness Statement", which sets out, amongst other things, his biographical information, expertise and opinions.

91The respondent deposed at [39] his understanding that Professor I is a [Professor and psychologist] amongst other qualifications. In her curriculum vitae, exhibit 3, Professor I referred to her publication titled [Publication C]. It is possible Professor I has a similar view of Gender Dysphoria to that held by Dr H.

92I am mindful that the views of Dr H and Professor I as to Gender Dysphoria and gender affirming treatment are not a reason to reject either of them as proposed experts given that there is a divergence of views on the subject.

93Mr B said the respondent had not selected which of these persons he would instruct to critique Dr D's report, but he accepted one ought to be nominated. He submitted that, pursuant to r 277(2), both persons are suitably qualified.

94Mr C submitted that the respondent's application in this respect should fail. He referred to r 277(2)(d), and submitted, on the basis that the respondent's interpretation of the Position Statement was misconceived, there is no reason that expert evidence is necessary in relation to Dr D's report.

95With respect to the respondent's proposed experts, Mr C referred to r 277(2)(f), namely the expert witness' training, study or experience that qualifies the expert witness as having specialised knowledge on the issue. Mr C submitted that neither of the respondent's proposed experts were acceptable.

96With respect to Dr H, Mr C submitted that since 2016, peer reviewed medical journals have refused to publish his work. Mr C submitted Dr H has made requests to politicians and presented to parliament on conversion therapy but made no mention of assessing or treating gender diversity.

97With respect to Professor I, Mr C referred to exhibit 3, being Professor I's curriculum vitae, and submitted that while the document states she has decades of experience of working with children, it does not specify how long she has been treating Gender Dysphoria. Mr C further referred to the publication dates of her articles and suggested she was a "recent entrant" into the field and as such, in accordance with the WPATH Standards of Care, Professor I should be working under supervision. Further, Mr C submitted Professor I's curriculum vitae does not disclose she has specialised knowledge about assessment of Gender Dysphoria in adolescents.

DELAY

98Mr A submitted that the delay in G5 commencing the assessment process would not advance her best interests, and the involvement of the experts proposed by the respondent would add to that delay and the parties' expense.

99Mr A speculated that the real motivation of the respondent has been to delay things and not to offer encouragement to G5 that might promote her gender identity. I do not accept that submission. I consider it more likely that the respondent is a caring and concerned parent who has difficulty accepting the behaviour of G5 in the context set out above. The respondent's concerns about G5 changing her personality or adopting different personas to fit in are understandable in the circumstances. These are important matters of context, and I consider that the respondent could have a meaningful contribution to make to an assessment of G5, which may take place. An example of his sensitivity to G5's needs is the submission from Mr B that he would not press the issue of a subpoena to G5's treating psychologist, acknowledging that inspection of those documents would be likely to damage the therapeutic relationship she has with him.

100G5 is not a child who is suffering significant distress or impairment in functioning. The evidence suggests she is doing well. Nevertheless, she has expressed a view as set out below to various persons that she is curious and wishes to explore her gender, and the assessment process is the means by which she may do this.

G5's BEST INTERESTS

101G5 has clearly expressed the view that she wishes to explore her gender identity and undergo the assessment of Service A.

102The applicant deposed G5 is intelligent, mature and insistent on continuing with the process through Service A. The applicant deposed G5 has expressed an unwavering desire to proceed with an assessment through Service A and frequently discusses her desire for future cross hormone treatment.

103The respondent does not agree G5 is mature enough to make the decision about the assessment herself. He is particularly concerned that G5 is influenced (directly or indirectly) by her current friendship group and by the applicant to continue the transition.

104Mr G reported that G5 has been a client in his practice since August 2020, and her behaviours and cognitions were congruent and developmentally appropriate for her age and at times, she showed a maturity and reflective capacity above her developmental age. Mr G noted that at times G5 exhibited "stoic" emotionally blunted responses to questions exploring her emotions and distress. Mr G reported this is congruent with her Condition A diagnosis. Mr G said her stoic and somewhat blunted affect responses, indicative of her Condition A diagnosis, could mask her level of distress and anxiety over the current situation.

105Mr G reported:

In my clinical opinion, despite the "normal" DASS-21 assessment, it is apparent that [G5] has mildly elevated stress and mild anxiety over the current and ongoing conflictual situation as a sub threshold diagnostic level.

106Mr G described G5 as an intelligent, reflective, caring and thoughtful young person exhibiting a willingness to continue to explore her gender identity.

107G5 has a good relationship with the applicant, who is supportive of the assessment that G5 seeks.

108The respondent’s refusal to grant permission for the assessment at this time has impacted negatively on G5’s relationship with him. In this regard, G5 reported to Mr G that she continued to refuse to have contact with the respondent as he was not supportive. G5 reported stress and worry about the ongoing conflict but reported she was "doing okay".

109Mr C submitted there is ongoing risk to the relationship between G5 and the respondent. Mr A submitted that if the referral for assessment is permitted, then the respondent will have the opportunity to confer with the relevant specialists and will be better informed as to G5's challenges and treatment options, which may be of significant benefit to G5 in both the long and short term. I share that view.

110Mr G reported G5's wellbeing may be negatively impacted by not having such access to further information, clinical assessment and specialist support from Service A. The applicant deposed that given G5's diagnosis of Condition A, she already has inherent vulnerabilities and that she requires as much professional support as may be available.

111Given G5's age and stage of development, if assessment occurs and treatment is subsequently recommended, treatment will become a time sensitive issue. Mr C further submitted that although G5 is on an urgent waitlist, even if G5 is permitted to undertake the assessment, it will still take some months until G5 is able to attend this appointment.

CONCLUSION

112G5 wishes to access Service A to find out further information and to participate in the assessment process. The respondent's case is that process should be delayed until he has made further enquiries into it.

113If I permit the applicant to authorise G5's attendance for the assessment as sought, the respondent's position is not necessarily excluded. At the end of the assessment process, there may be or may not be a diagnosis of Gender Dysphoria or other condition. If there is such a diagnosis, there may be a recommendation as to treatment. It may be that the respondent's time for opposition would be then, and, in any event, he is not excluded from opposing treatment if it is recommended.

114At this time, there is no diagnosis of Gender Dysphoria and no recommendation for treatment. What is proposed is a medical assessment of G5. In my view, the weight of the evidence supports that course of action.

115I do not find the respondent's case for the appointment of an expert to critique Dr D's report to be such that I would delay G5's admission into the assessment process.

116When I balance what is in G5's best interests with the respondent's request to obtain further information, I am satisfied that permission should be given for G5 to undergo the assessment process. I am satisfied that is in her best interests.

117The respondent may ask questions of Dr D with respect to gender affirming treatment, including those relating to the link between assessment and subsequent diagnosis and the recommendation for treatment at Service A. The respondent may concurrently obtain a critique of Dr D's report. My orders will not preclude him from doing so. The respondent may wish to carefully consider his choice of expert to ensure that person is suitably qualified, having regard to the Position Statement as set out at [76] above. Alternatively, the respondent may choose to participate in and await the outcome of the assessment process before obtaining reports from other professionals.

118I intend to make the orders sought by the applicant to the effect that both parties do all things necessary to facilitate the referral of G5 to Service A for assessment, and if the respondent refuses or declines to do so, then his consent be dispensed with.

119I intend to make this order because it gives the respondent the opportunity to participate in the process if he chooses to do so and it ensures he is not excluded from it.

120There will be liberty to the parties and the ICL to apply to relist the matter in the event that recommendations are made by Service A with respect to treatment for G5 and the parties are unable to reach an agreement in that respect.

121I shall order that the respondent has permission to issue subpoenas to both [Service G] and Service B.

122The respondent will have permission to provide a copy of the report of Dr D to his nominated expert to obtain a written critique of that report.

123I shall order that the parties have permission to issue clarifying questions to Dr D in relation to her report. This order is not strictly necessary as Dr D is not a single expert witness, but it was sought by the respondent.

THE ORDERS

124Subject to hearing from counsel, the orders I propose to make are as follows:

1The Applicant and the Respondent forthwith take all steps and sign all documents necessary to facilitate the referral of the child [G5] born [in] 2005 to [Service A] at [Hospital A] for the purposes of assessment by the [Service A] team as to any diagnosis or otherwise of Gender Dysphoria and any associated recommended treatment.

2In the event that the Respondent fails to sign or return any consents/authorities as may be requested by [Service A] within 7 days of any such request associated with the child's assessment and access to their service, the Respondent's consent be dispensed with and the Applicant be at liberty to solely authorise any assessments as may be recommended by [Service A], provided that she authorise the release of any information arising from any such assessments as may be reasonably requested by the Respondent.

3The Applicant be at liberty to provide a copy of this order to the Chief Executive of [Service B].

4There be liberty to the parties and Independent Children's Lawyer to apply at short notice for a relisting of the matter in the event that any recommendations are made by [Service A] with respect to hormonal treatment for the child and the parties are otherwise unable to reach an agreement with respect to the commencement of any such treatment.

5The Respondent has permission to issue subpoena to:

(a)[Service G]; and

(b)[Service B].

6The Respondent has permission to provide a copy of the report of [Dr D] dated 14 September 2021 concerning the child to his nominated expert, to facilitate his nominated expert preparing a written critique of that report.

7The parties have permission to issue clarifying questions to [Dr D] in relation to her said report concerning the child.

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

RM

Associate

23 DECEMBER 2021