Re: LG - [2017] FCWA 179

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: LG [2017] FCWA 179

CORAM: DUNCANSON J

HEARD: 14 DECEMBER 2017

DELIVERED : 16 JANUARY 2018

FILE NO/S: PTW ####
BETWEEN: THE MOTHER
Applicant
AND
THE FATHER
Respondent

Catchwords:

CHILDREN - Gender Dysphoria - Consideration as to whether the child is Gillick competent - Where it is declared that the child is Gillick competent to consent to Stage 3 treatment

Legislation:

Family Law Act 1975 (Cth) s 67ZC

Category: Not Reportable

Representation:

Counsel:

Applicant: Counsel A
Respondent:
Independent Children's Lawyer : Independent Children's Lawyer

Solicitors:

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

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

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547

Re: Kelvin [2017] FamCAFC 258
Re: Lincoln (No. 2) [2016] FamCA 1071

Secretary, Department of Health and Community Services v JWB and 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

1These proceedings concern LG, a 17 year old girl who has been diagnosed with Gender Dysphoria. LG was born female, but strongly desires to live as a male. In these reasons I shall refer to LG using the male pronoun.
2By application filed 17 August 2017 LG's mother sought an order from the Court in the following terms:
The Applicant Mother have leave to authorise the treatment of the child … with respect to Gender Identity Dysphoria including stage 2 hormonal treatment and to undergo a bi‑lateral mastectomy in accordance with the recommendations of her treating medical team at [Hospital A] in terms of both the timing and nature of treatment, for the purpose of facilitating [LG's] future gender reassignment.

3The application came before me on 3 October 2017. On that date I made orders including an order by consent of LG's parents that his mother have leave to authorise LG's treatment with respect to Gender Identity Dysphoria including stage 2 hormonal treatment.
4By way of background I found as follows:
…
4[Paragraph suppressed].
5In early childhood LG preferred male clothing and male activities preferring active outdoor play and sports and having more male friends. Since the age of eight LG realised he was “different” from his female friends, but did not understand in which way and he began to be confused and distressed. When he reached puberty his psychological distress about his gender and female characteristics increased. He came out to his family and friends as transgender in late 2015. He gradually socially transitioned during 2015. By late 2016 LG had complete social transition and commenced the 2017 school year as a male.
6LG identifies as male and continues to take steps towards living as a male.
7LG has a history of mixed anxiety and depressive symptoms, past episodes of deliberate self-harm and suicidal ideation. LG’s overall mental health has improved since he has come…

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: LG

Details

AGLC: Re: LG [2017] FCWA 179
Case: [2017] FCWA 179
Decision Date: 16 JANUARY 2018

CaseChat Overview and Summary

transgender - Best interests of the child - Guardianship and welfare of children - Consent for medical treatment - Mental health treatment - Gillick competency

The case of Re: LG involved a legal dispute regarding a child who had expressed a desire to transition to living as a male, despite being assigned female at birth. The child was diagnosed with gender dysphoria, and the matter came before the Family Court of Australia. The primary concern was whether the child's wish to transition should be considered in determining their best interests, particularly in relation to medical treatment for their condition.

The court was required to determine the extent to which the child's wishes should be considered in the decision-making process, given their age and the nature of the proposed treatment. It also needed to assess whether the child had the requisite maturity and understanding to provide informed consent for the medical treatment, considering the principle of Gillick competency. The court had to balance the child's autonomy and right to make decisions about their own body with the need to protect their welfare and ensure their long-term well-being.

The court found that the child, despite their young age, demonstrated a clear understanding of their gender identity and the implications of the proposed treatment. The court recognised the child's right to make decisions about their own body, provided that it was in their best interests. The court concluded that the child was Gillick competent and granted consent for the child to undergo medical treatment to support their transition. The court emphasised the importance of respecting the child's autonomy while ensuring their welfare was prioritised. The court made orders to allow the child to undergo appropriate medical treatment and to appoint a guardian to support the child in making decisions about their care and well-being.

Orders