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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: G5

Details

AGLC: Re: G5 [2021] FCWA 228
Case: [2021] FCWA 228
Decision Date: 23 DECEMBER 2021

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re: G5 involved a dispute between the parents of a child regarding the facilitation of an assessment for potential Gender Dysphoria at a specified hospital. The mother sought an order to support the child's referral for this assessment, while the father opposed it, despite the child's desire to be assessed. The Independent Children's Lawyer supported the mother's order, and the father questioned the assessment approach of the specified service. Additionally, the father requested permission to have his nominated expert critique a report by Dr. D, which was pertinent to the assessment process. The court needed to determine whether it was in the best interests of the child to proceed with the assessment and whether the father should be allowed to critique Dr. D's report.

The court addressed several legal issues, including the best interests of the child as the paramount consideration, the child's right to participate in decisions affecting them, and the relevance and admissibility of the critique of Dr. D's report. The court examined the Position Paper of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) to assist in determining what was in the child's best interests. The court also considered the father's right to provide input into the assessment process, including his request for a critique of Dr. D's report by his nominated expert.

After careful consideration of the evidence and arguments presented, the court found that it was in the best interests of the child to facilitate the assessment for Gender Dysphoria. The court recognised the child's expressed desire to be assessed and the support of the Independent Children's Lawyer. The court also permitted the father to obtain a critique of Dr. D's report by his nominated expert, acknowledging the father's concerns about the assessment process. This decision balanced the child's right to make informed decisions about their health and well-being with the parents' differing perspectives on the appropriate course of action.

The final orders of the court were that the mother and father should facilitate the child's referral to the specified hospital for assessment, and that the father was permitted to provide the critique of Dr. D's report to his nominated expert. The court emphasised the importance of ongoing communication and cooperation between the parents in making decisions in the best interests of the child.

Orders