Re: G9

[2022] FCWA 65

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: G9 [2022] FCWA 65

CORAM: DUNCANSON J

HEARD: 15 MARCH 2022

DELIVERED : 1 APRIL 2022

FILE NO/S: [Redacted]

BETWEEN: THE MOTHER

Applicant

AND

THE FATHER

First Respondent

AND

SERVICE A

Second Respondent

Catchwords:

CHILDREN - where the child who is 16 years of age has been diagnosed with Gender Dysphoria and wishes to access stage 1 puberty blocking treatment - where the father does not consent to or oppose the treatment - the procedures of [Service A] - where it is found the child is Gillick competent to consent to treatment - where a declaration is made to that effect - where it is in the best interests of the child that an order be made authorising treatment

Legislation:

Family Law Act 1975 (Cth) s 60CC, s 67ZC
Health Services Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms A
First Respondent	:	Self-Represented Litigant
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):

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie (2013) FLC 93-547
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (Marion's case)

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: G9 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 G9 who is [16 years of age]. G9 was born male but strongly desires to be a female. G9 has been diagnosed with Gender Dysphoria. In these reasons I shall refer to G9 using the female pronoun.

2On 15 March 2022 I made the following declaration and orders:

1There be a declaration that the child [G9] born [in] 2005 is competent to give consent to the administration of stage 1 Puberty Suppression Treatment to her for her diagnosed condition known as "Gender Dysphoria".

2The proposed stage 1 treatment of the child, in such dose and manner and with such frequency as determined by her medical treating team at [Hospital A] is authorised by this Court.

3The child's full name, her family members, her 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 otherwise stand adjourned generally insofar as it relates to stage 2 treatment, with liberty to relist.

3These are my reasons.

4By initiating application filed 4 November 2021, the applicant, G9's mother, sought orders which included:

•a declaration that G9 is competent to give consent to the administration of both stage 1 hormone blocker treatment (as may be necessary) and stage 2 cross hormone treatment for her condition known as Gender Dysphoria; and

•the proposed stage 2 treatment, being the administration of oestrogen in such dose and manner with such frequency determined by her medical treating team at Hospital A authorised by the Court.

5At the hearing the mother sought orders with respect to stage 1 treatment only.

6The first respondent is G9's father. The first respondent neither consented to nor opposed the orders sought with respect to stage 1 treatment.

7The 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 neither consents to nor opposes the orders sought with respect to stage 1 treatment.

8On 18 November 2021 I made an order that G9 be independently represented at the further hearing of these proceedings. G9 is represented by an Independent Children’s Lawyer, [Ms C]. The ICL supports the orders sought by the applicant.

BACKGROUND

9G9's parents were married [in late] 2002. They separated finally [in mid] 2021.

10G9 was born [in] 2005. G9 lives with the mother and G9's [sibling]. G9 is presently resistant to spending time with the father, although her sibling does so.

11The mother deposed G9's mental health declined around the time of puberty and worsened from March 2020. In May 2020 G9 came out to the mother that she was struggling with Gender Dysphoria. She began self-harming and withdrawing. The mother deposed G9 planned to self‑harm by jumping off a bridge in front of a train.

12G9 engaged with [Service B] at Hospital A in June 2020. Her mental health has improved. G9 sees a psychologist and also a child and adolescent psychiatrist who has prescribed medication.

13The mother deposed G9 is very keen to progress to stage 2 cross‑hormone treatment. The mother is concerned for G9's mental health if she is not able to do so within a reasonable time frame.

14The mother deposed the father has strong beliefs concerning gender. She deposed he is concerned about the long-term impact of hormone therapy and does not wish to consent to treatment.

15The father did not oppose the application or orders sought with respect to stage 1 treatment.

THE EVIDENCE AND DOCUMENTS RELIED ON

16The mother relied on her case information affidavit filed 4 November 2021. She also relied on reports from the following practitioners:

•[Mr D], Senior Clinical Psychologist, dated 20 January 2022;

•[Dr E], Consultant Child and Adolescent Psychiatrist, dated 21 January 2022; and

•[Dr F], Paediatric Endocrinologist, dated 31 January 2022.

THE LEGAL PRINCIPLES

17In Re Jamie (2013) FLC 93-547 the Full Court determined that stage 1 treatment was to be regarded as therapeutic. In respect of stage 1 treatment, if the child, the parents and the medical practitioners agree, there is no need for the Court to determine the Gillick competence of the child. A Gillick competent child may consent to stage 1 treatment and if the child is not Gillick competent, the child's parents may consent. In those circumstances the Court's intervention is not required.

18 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")).

19In Re Kelvin (2017) FLC 93-809 at [12] the Full Court described stage 1 treatment as follows:

Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately three to four years. Gonadotrophin releasing hormone analogue (GnRHa) are used for stage 1 treatment and are administered via injection with the aim of reducing the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty. It also allows the adolescent time to mature emotionally and cognitively such that they can achieve maturity sufficient to provide informed consent for stage 2 treatment. Stage 1 treatment is ideally commenced in the early stages of puberty (known as Tanner Stage 2) which can occur from the age of approximately nine to 12 years of age.

THE SERVICE A POSITION

20On 27 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 [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

21G9 has been diagnosed with Gender Dysphoria (in adolescence) and Gender Incongruence of Adolescence and Adulthood.

22There is no dispute between G9, the mother, or G9's treating medical practitioners all of whom consider that stage 1 treatment should commence. As discussed below, the medical practitioners involved in G9's care report that G9 is Gillick competent to consent to stage 1 treatment. That is not determinative of the matter. In the absence of the consent of G9's father to G9's treatment, the application to the Court is necessary and the Court must determine whether it is in the best interests of G9 to authorise treatment.

23Accordingly, I shall determine this application pursuant to s 67ZC of the Family Law Act 1975 (Cth) ("the Act"). In doing so, I shall regard the best interests of G9 as the paramount consideration.

IS G9 GILLICK COMPETENT

24Dr E reported specifically in support of authorisation of reversible stage 1 puberty suppression treatment.

25Dr E reported as to whether in her view G9 had the maturity and intellectual capacity to understand the short and long-term implications of receiving treatment. She presented her assessment of G9's capacity in an 11-point format. She reported that G9 has the ability to comprehend and retain both existing and new information regarding the proposed treatment. G9 is able to provide a full explanation, in terms appropriate to G9's level of maturity and education, of the nature of the treatment; G9 is able to describe the advantages and disadvantages of treatment and able to weigh the advantages and disadvantages in the balance and arrive at an informed decision about whether and when she should proceed with the treatment. Dr E was very impressed with G9's level of knowledge and her sense of responsibility for the decision and its consequences.

26Dr E reported G9 is able to understand that the decision to proceed with treatment could have consequences that cannot be entirely foreseen at the time of decision and G9 is able to acknowledge that the treatment would not necessarily address all of the psychological and social difficulties that she had before its commencement.

27Dr E reported that G9's identity and expressed wishes have remained stable and consistent over the last year and eight months through times of better mental health and through times of severe worsening of her mental health. Dr E is satisfied that G9's judgement in making the decision for treatment is not impaired by temporary factors.

28G9 is able to appreciate the possibility of regret about impaired fertility. She is also 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.

29Dr E reported G9 is able to appreciate the possibility of disappointment about the incomplete and imperfect effects of treatment.

30Dr E opined G9 has the capacity to consent to puberty suppression treatment.

31Mr D also reported as to G9's maturity and intellectual capacity to understand the short and long-term implications of receiving treatment. Mr D assessed G9's capacity against the same 11-point criteria.

32Mr D reported that G9 has demonstrated a high level of insight in her interviews with him and Dr E and that they concurred that she impressed as "better informed than most".

33Mr D reported at [48]:

[G9] generally impresses as high functioning and so in combination I feel that [G9] has good competence for consenting to puberty suppression treatment. I do not feel that [Condition A] features identified by multiple assessors and through screening measures are influential in [G9's] capacity or gender identity.

34I have considered the evidence of the medical practitioners which I have summarised above. I am satisfied on the basis of that evidence that G9 is competent to consent to stage 1 treatment.

35In the absence of consent from G9's father, I proceed to make a determination of this application according to the best interests of G9. The best interests of G9 are determined taking into account the considerations as set out in s 60CC(2) and (3) of the Act insofar as they are relevant.

G9'S BEST INTERESTS

36G9 has the diagnoses as set out at [21] above. G9 lives with her mother and her sibling. G9's father is a [religious leader] and her mother [works with the community]. Both parents are [religious].

37G9 does not wish to see the father. The father did not oppose this application and it is to be hoped that in those circumstances G9's relationship with him can be re-established.

38G9 is settled in the care of the mother. There is not a need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

39The mother deposed G9 has read a great deal about Gender Dysphoria and seems to have a good knowledge of potential treatments, side effects, risks and expected outcomes. I have found that G9 is competent to consent to stage 1 treatment.

40Dr E reported that G9 expressed her intense wish to commence gender-affirming treatment and welcomes the possibility of access to puberty suppression as a first step.

41The ICL described G9 as an intelligent and thoughtful young person. The ICL reported G9 would like the treatment to commence as soon as possible so that she can start to feel comfortable in her body.

42Dr E reported she expects G9 will experience immediate psychological relief in commencing puberty suppression treatment in the short term. In the medium-term G9 will experience the predictable effects of the puberty suppression medication, and in the long term she is likely to remain stable in her female gender identity.

43Dr E reported should G9 not be allowed to commence puberty suppression treatment, she anticipated G9 would experience severe disappointment and a sense of sadness, injustice, unfairness, confusion and anger. There would likely be an exacerbation of depressive and anxiety symptoms and Dr E would be concerned that she may have an increase in suicidal and self-harm thoughts and acts.

44Mr D reported if prevented from accessing treatment he anticipated G9's expressed distress would likely continue and may even escalate. Her mental health would most likely suffer and her motivation for self-care decrease. He reported socially she would most likely feel less comfortable and attendance at school may be jeopardised. G9's current demonstrated improvement in self-care and her plans to extend this, may also be at risk.

45Both Dr E and Mr D referred to G9's parents' concern about the proposed treatment as their religious faith is not compatible with accepting transgender identity and supporting gender‑affirming treatment. Mr D reported the mother is accepting of G9's gender identity and strongly and practically supports her access to stage 1 puberty suppressing treatment, knowing that not doing so will place G9 at risk. Mr D reported the father expresses acceptance of G9's gender identity. He has reflected extensively but feels he cannot in good conscience take personal responsibility for treatment decisions that may affect G9's whole future. The father recognises his principled stance appears as unsupportive to G9 and may harm the relationship between them, but he hopes that over time that relationship can be repaired.

46In relation to G9's family situation Dr E reported at [64]:

… I believe it is likely that Family Court authorisation of puberty suppression will be a relief to all of them from some aspects of this distressing tension, and will help both parents in their very commendable efforts to maintain loving and respectful connection with [G9].

47Dr E reported at [84]:

In my opinion, [G9] has capacity to consent to puberty suppression, and it is [G9's] best interests to be authorised to commence this treatment, in keeping with her strong wish and request.

CONCLUSION

48I have considered the evidence in the context of the considerations as set out in s 60CC of the Act insofar as they are relevant.

49I find it is in G9's best interests that there be an order that the administration of stage 1 Puberty Suppression treatment to G9 as recommended by her treating medical practitioners at Hospital A be authorised by this Court.

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

RM

Associate

1 APRIL 2022