Re: G7

[2022] FCWA 31

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: RE: G7 [2022] FCWA 31

CORAM: DUNCANSON J

HEARD: 2 FEBRUARY 2022

DELIVERED : 11 FEBRUARY 2022

FILE NO/S: [Redacted]

BETWEEN: THE MOTHER

Applicant

AND

THE FATHER

First Respondent

AND

SERVICE A

Second Respondent

Catchwords:

CHILDREN - where the child has been diagnosed with Gender Dysphoria - where the child is Gillick competent to consent to treatment - where the consent of the father has not been obtained - the procedures of [Service A] - where it is in the best interests of the child to authorise treatment

Legislation:

Family Court Act 1997 (WA) s 66C, s 162
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms A
First Respondent	:	No Appearance
Second Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

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

Re Kelvin (2017) FLC 93-809
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
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: G7 has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1These proceedings concern [G7] who is [17 years of age]. G7 was born female but strongly desires to be a male. G7 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G7 using the male pronoun.

2On 2 February 2022, I made the following declaration and orders:

1There be a declaration that the child [G7] born [in] 2004 is competent to give consent to the administration of Stage 2 cross hormone treatment to him for his condition known as "Gender Dysphoria".

2The proposed Stage 2 treatment of the child, being the administration of testosterone in such dose and manner and with such frequency as determined by his medical treating team at [Hospital A] is authorised by this Court.

3The child's full name, his family members, his medical practitioners, the Court file number, the State in which the proceedings were initiated and any other fact or matter that might identify the child shall not be published in anyway.

4Only anonymised reasons for Judgment and Orders (with cover sheets excluding the Registry, file name and number, and lawyers' names and details, as well as the child's real name, (both past and present) shall be released by the Court to non-parties without contrary order of a Judge.

5No person shall be permitted to search the Court file in the matter without first obtaining the leave of a Judge.

6The application be otherwise dismissed.

3These are my reasons.

4By initiating application filed 22 September 2021, the applicant G7's mother sought orders which included:

•a declaration that G7 is competent to give consent to the administration of Stage 2 cross hormone treatment for his condition known as Gender Dysphoria; and

•the proposed Stage 2 treatment, being the administration of testosterone in such dose and manner with such frequency determined by his medical treating team at [Hospital A] be authorised by the Court.

5The first respondent is G7's father. On 18 November 2021, I made an order that G7 be independently represented at the further hearing of these proceedings. I further ordered that service of the application and supporting documents upon the first respondent be dispensed with.

6The second respondent is [Service A]. Service A is the health service provider for Hospital A under the Health Services Act 2016 (WA). The second respondent is supportive of orders being made.

7G7 is represented by an Independent Children’s Lawyer, [Ms D]. The ICL supports the orders sought by the applicant.

BACKGROUND

8G7's parents began living together in 2003. They separated in about 2006 or 2007.

9G7 was born [in] 2004. G7 lives with his mother, stepfather and [sibling]. G7 has another [sibling], who is [in State care] and who has not lived with the family since 2016. That child was separated from the family to prevent harm to family members, including G7, from physical violence against them.

10The mother has been G7’s primary carer since his birth. The father has not been involved in G7’s life since the parents separated when he was about three years of age.

11The mother is unaware of the father’s whereabouts. She has never met his family, who she believes live [interstate]. The mother deposed the father was wanted by the police in relation to suspected [criminal] offences. At the time of separation, she considered G7 was at risk of [abuse] from the first respondent and took protective measures by leaving the relationship. The mother believes the father poses a risk to children. G7 has expressed no wish to seek out the first respondent. In these circumstances, I was satisfied it was appropriate that I order that service of the mother’s application upon the father be dispensed with.

12The mother deposed G7 started showing signs of Gender Dysphoria from the age of around 13 years, and she observed his mental health started to decline.

13In early 2018, G7 was accepted into the [Service B] Clinic. In March 2019 the mother discovered that G7 was self-harming and she sought assistance through mental health services. G7 now presents as a male, however, when he is mistaken for a female this causes considerable distress for him, and the mother has observed a deterioration in his mental health.

14G7 commenced [hormone blockers] [in] August 2019.

15Service B of Hospital A have determined G7 is ready to commence Stage 2 treatment. The mother is concerned as to his mental health and wellbeing should there be delays in his access to treatment. The mother deposed G7 has confided in his psychology sessions that he could not live as a female and would kill himself rather than live like that.

THE EVIDENCE AND DOCUMENTS RELIED ON

16The mother relied on her case information affidavit filed 22 September 2021. She also relied on reports from the following practitioners:

•[Ms E], Clinical Psychologist dated 6 December 2021;

•[Dr F], Consultant Child and Adolescent Psychiatrist dated 14 December 2021; and

•[Dr G], Paediatric Endocrinologist dated 4 January 2022.

THE LEGAL PRINCIPLES

17In Re Kelvin (2017) FLC 93-809 the Full Court determined that Stage 2 treatment could no longer be considered a medical procedure for which consent lay outside the bounds of parental authority and required the imprimatur of the Court.

18Further in respect of Stage 2 treatment, the Full Court determined that if a child consents to medical treatment, the medical practitioners agree the child is Gillick competent, and the parents do not object to treatment, it is not mandatory to apply to the Court for a determination as to Gillick competence. If all agree, a Gillick competent child can consent to Stage 2 treatment.

19If the child is not Gillick competent, and if the treating medical practitioners agree, the child's parents can consent to Stage 2 treatment without Court approval.

20In the event there is genuine dispute or controversy it is necessary for the Court to determine whether it is in the best interests of the child to authorise treatment.

21 Gillick competence is established if a child has achieved a sufficient understanding and intelligence to enable the child to understand fully what is proposed. (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 ("Marion's case")).

THE SERVICE A POSITION

22[In] July 2021, the Chief Executive of Service A wrote to practitioners at Service B. He provided the following direction:

From today, [Service A] will use consent procedures that are in line with best clinical practice, current Australian legal context and [Service A] policy.

Stage 1 (puberty suppression with gonadotropin releasing hormone agonist) and Stage 2 (estrogen or testosterone treatment) are two separate treatment steps each requiring informed consent.

Court authorisation for Stage 1 treatment is required if:

·The child is in [State care]

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

o Parents/ legal guardians and the child

oParents/ legal guardians and [Service B]

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

Court authorisation for stage 2 treatment is required if:

·The child is in [State care]

·The child is not Gillick competent

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

oParents/ legal guardians and the child

oParents/ legal guardians and the [Service B]

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

·The child wishes to commence stage 2 treatment at less than 16 years of age even if the child is Gillick competent and there is agreement between child, parents and [Service B].

This change is effective immediately.

THIS APPLICATION

23G7 has a clear diagnosis of Gender Dysphoria in Adolescence/Gender Incongruence in Adolescence/ICD-10 "Transsexualism".

24There is no dispute between G7, the mother, or G7's treating medical practitioners, all of whom consider that Stage 2 treatment should commence. As discussed below, the medical practitioners involved in G7's care report that G7 is Gillick competent to consent to Stage 2 treatment. That is not determinative of the matter. In the absence of the consent of the father to G7’s treatment, application to the Court is necessary, and the Court must determine whether it is in the best interests of G7 to authorise treatment.

25Accordingly I shall determine the application pursuant to s 162 of the Family Court Act 1997 (WA) ("the Act"). In doing so, I shall regard the best interests of G7 as the paramount consideration.

IS G7 GILLICK COMPETENT?

26Ms E reported that G7 has a clear and consistent expressed desire to be a male. She reported that she is satisfied that G7 is a competent minor with respect to having the intellectual capacity and emotional maturity to make Stage 2 cross sex hormone therapy (specifically testosterone) decisions. Ms E reported that based on her clinical observations as well as the reported information, it is likely that G7 is at least intelligent as the majority of his same aged peers and she does not have any concerns for his intellectual capacity to consider the implications of treatment. Ms E reported G7 has demonstrated an awareness of the impacts and limitations of treatment, and the risks associated with it. He has considered the impact of treatment on fertility. Ms E believes G7 has the capacity to consider the short‑term and long-term implications of the treatment and described him as having realistic expectations and being well informed. Ms E has not seen any evidence that G7 is unduly influenced by any other person or circumstance.

27Ms E reported she considered G7 clearly demonstrates capacity to consent to Stage 2 gender-affirming treatment, testosterone.

28Dr F reported G7 expresses a strong sense that he is male, he wishes to live entirely as a male and be recognised by others as male.

29Dr F reported that G7's younger [sibling's] mental health problems and physical violence were a significant source of psychological trauma for G7, who has experienced post-traumatic stress related problems related to this trauma. Dr F referred to G7's history of traumatic life events and stated it was not very plausible that the impact of this trauma could have caused his masculine identity development. Dr F reported G7's male identity appears consistent and longstanding and authentic, apparent from early childhood before his younger [sibling's] behaviour had an impact.

30Dr F reported as to whether, in her view, G7 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 judgement in providing consent to treatment.

•Emotional maturity in weighing up impact on fertility in particular, bearing in mind that most young people who commence Stage 1 treatment will continue to Stage 2 treatment – does the young person appreciate the possibility of regret about impaired fertility?

•Able to appreciate the possibility of regret about gender transition, in the short, medium and long term and understand that people's feelings and wishes can change as they grow older?

•Able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment?

31Dr F reported G7 is of normal intelligence and showed he has understood and remembered the information about testosterone treatment which had previously been provided to him. He is able to provide an explanation of testosterone treatment. He is able to describe the advantages and disadvantages of treatment and to weigh them in the balance to arrive at an informed decision about whether to proceed with treatment.

32G7 is able to understand the decision to proceed with treatment could have consequences that cannot be entirely foreseen, and he does not expect treatment to relieve all of his psychological and social difficulties.

33Dr F reported G7 did not appear to be under the undue influence of any other person. His wishes for testosterone have been expressed consistently, including at times when his mental health was poor and at times when it was better. Dr F noted G7's history of suicide attempts and ideation do not constitute a "temporary factor" which could impair his judgement. Dr F reported G7 has been making his final decisions about commencement of testosterone treatment in a stable mental state.

34G7 has an understanding of the current state of knowledge about the impact of gender treatment on fertility. G7 understands some people do experience regret and accepts this risk. G7 says that to him the expected benefits of testosterone are worth the risk of possible future regret. Dr F is satisfied G7 and his family have considered possible future regret with due weight in a mature manner and over a considerable length of time, and G7 does appreciate these risks. G7 has a good grasp of the limited effects of testosterone treatment, and Dr F assessed him as showing normal maturity for age 17.

35Dr F reported it was her professional opinion that G7 demonstrates capacity to consent to Stage 2 testosterone treatment, that he is Gillick competent to consent to receiving testosterone treatment.

36 I 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 E, that G7 is competent to consent to Stage 2 treatment.

37In the absence of consent from G7's father I proceed to make a determination of this application according to the best interests of G7. The best interests of G7 are determined taking into account the considerations as set out in s 66C (2) and (3) of the Act insofar as they are relevant.

G7'S BEST INTERESTS

38G7 has the diagnosis as set out at [23] above.

39G7 lives with his mother, her husband and G7's [sibling]. G7 has no contact with his father. At the time of separation, the mother considered G7 was at risk of [abuse] from the father. The mother told Dr F she has an intense fear that the father would find out their address and make contact. Dr F reported G7 considers his stepfather to be his father and does not want any contact with his biological father.

40G7 is happily settled in the care of the mother. There is not a need to protect G7 from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence.

41The mother described G7 as a mature young person.

42I have found that G7 is competent to consent to Stage 2 treatment. Dr F reported G7 has a history of major depressive episodes and post-traumatic stress disorder, but he is medically well.

43G7 has a [sibling] who does not live with the family. Dr F reported that G7's [sibling's] mental health problems and physical violence were a significant source of psychological trauma for G7. Most recently, Dr F reported that G7's suicidal and self-harm ideation had reduced in frequency and intensity and his mood had improved.

44Dr F reported that she expects G7 will experience immediate psychological release in commencing treatment in the short-term. In the medium and long-term, G7 will experience the development of masculine body changes which he strongly desires. Dr F anticipates that should G7 not be allowed to commence testosterone treatment he would experience severe disappointment and there would likely be an exasperation of depression and anxiety symptoms.

45Dr F reported:

99.I am satisfied that [G7] is not for any psychological reason, influenced by or attempting to please another person by wishing to change gender. I have also observed [G7] to have the support of his mother and stepfather. His parents have expressed that they believe testosterone treatment is in [G7's] best interests, that they love and accept him as a transgender male, and they intend to give their informed consent to this treatment.

100. In my professional opinion [G7] has capacity to give informed consent to testosterone 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 and stepfather.

CONCLUSION

46I find it is in G7's best interests that there be an order that the proposed Stage 2 treatment, being the administration of testosterone in such dose and manner, and with such frequency as determined by G7's medical treating team at Hospital A be authorised.

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

RM

Associate

11 FEBRUARY 2022