Re: Morgan
[2025] FedCFamC1F 33
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re: Morgan [2025] FedCFamC1F 33
File number(s): By Court order file number is suppressed Judgment of: ANDERSON J Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – MEDICAL PROCEDURES – GENDER DYSPHORIA – Where the mother seeks an order that the child is competent to consent to Stage 2 treatment for Gender Dysphoria – Where the father did not consent to the child undergoing Stage 2 treatment for Gender Dysphoria – Where the child wishes to undergo Stage 2 treatment for Gender Dysphoria – Where the father conceded only during closing submissions that the child has Gender Dysphoria and was Gillick competent – Where the father opposed the mother’s application on religious grounds - Where the child’s medical experts expressed an opinion that the child is Gillick Competent – Where it is in the best interests of the child to undergo Stage 2 treatment – where orders as to confidentiality are made
FAMILY LAW – PARENTING – Where the Court finds that it is in the best interests of the child for the mother to have sole parental responsibility and for the child’s name to be changed
FAMILY LAW – PARENTING – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where the parties consent to a reconsideration of final parenting order
Legislation: Family Law Act 1975 (Cth) ss 34, 60B, 60CA, 60CC, 64B, 65D, 65DAAA, 67ZC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.11
Cases cited: Bell and another v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust and others intervening) [2021] EWCA Civ 1363
Chapman v Palmer (1978) 4 Fam LR 462; [1978] FLC 90-510
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Radecki & Radecki [2024] FedCFamC1A 246
Re: Imogen (No.6) (2020) 61 Fam LR 344; [2020] FamCA 761
Re: Jamie (2013) 50 Fam LR 369; [2013] FamCAFC 110
Re: Kelvin (2017) 57 Fam LR 503; [2017] FamCAFC 258
Rice & Asplund (1979) 6 Fam LR 570; [1978] FamCA 84
Secretary, Department of Health & Community Services v J.W.B and S.M.B (1992) 175 CLR 218; [1992] HCA 15
Skerrett & Kryvenko (No 3) [2024] FedCFamC1F 267
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 5 December 2024 Representation: By court order the names of legal practitioners are suppressed ORDERS
SUPPRESSED FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: THE MOTHER
Applicant
AND: THE FATHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.All former orders in relation to the child Morgan born 2008 (previously known as Parker) be discharged.
2.The mother shall have sole parental responsibility for the chid, Morgan born 2008 and sole decision-making authority in respect of all decisions concerning major long-term issues affecting Morgan including but not limited to the provision of any necessary parental consent for Stage two treatment being administration of cross-sex hormones for Morgan, with such treatment to be provided on and from a date determined by Morgan’s medical practitioners, and in such manner and with such frequency as determined by Morgan’s treating medical practitioners.
3.Morgan live with the Mother.
Non-publication
4.The full name of Morgan, her family members, her medical practitioners, the court’s file number, any Court Child Expert, the state of Australia in which these proceedings were initiated, the name of Morgan’s parents’ lawyers, the Independent Children’s Lawyer and any other fact or matter that may identify Morgan, shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a judge, with it being noted that each party shall be handed one full copy of these Orders with the relevant details included, to enable their execution, and one cover sheet of the reasons for judgment that includes the file numbers and lawyers’ names.
5.The mother be at liberty to provide a copy of the un-anonymised orders and un-anonymised reasons for judgement to all persons involved in the child’s treatment.
6.The Independent Children’s Lawyer be discharged.
7.All other applications are dismissed.
IT IS DECLARED THAT:
8.The child Morgan (née Parker), who was born 2008 is Gillick competent to consent to the administration of Stage 2 treatment for the condition called Gender Dysphoria in Adolescents and Adults as set out in the Diagnostic and Statistical Manual of Mental Disorders (2013) (“DSM-5”).
9.A change of name for the child from Parker to Morgan is approved by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Morgan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
PRELIMINARY
On 28 March 2024, the applicant mother (“the mother”) filed an Initiating Application seeking a declaration and orders in respect of the child Morgan, aged 16 years. Morgan was born male but identifies as female. In 2019, Morgan was diagnosed by a child and adolescent psychiatrist with Gender Dysphoria in Adolescents 1, as defined in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”).[1] Since 2019, Morgan has been receiving treatment for gender dysphoria, in the forms of puberty suppressants and psychological support.
[1] American Psychiatric Association, “Gender Dysphoria” in Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (American Psychiatric Publishing, 5th edition 2013).
By way of Amended Initiating Application filed 20 September 2024, the mother seeks the following orders and declarations:
(a)Sole decision-making responsibility for Morgan;
(b)Orders facilitating a change of name for Morgan; and
(c)A declaration that Morgan is competent to consent to the administration of oestrogen (Stage 2 treatment) or in the alternative, that the Court authorise the administration of Stage 2 treatment.
In support of her application, the mother relied on:
(a)Amended Initiating Application filed 20 September 2024;
(b)Affidavit of the mother filed 23 September 2024;
(c)Affidavit of Dr. B, child and adolescent psychiatrist, filed 13 September 2024;
(d)Affidavit of a medical specialist, Dr D, sworn 27 August 2024 but filed 4 December 2024;
(e)A Child Impact Report dated 9 August 2024; and
(f)An Outline of Case Document filed 28 November 2024.
The respondent father (“the father”) did not file any evidence in the proceedings until 3 December 2024 being two days prior to the commencement of the trial. However, the Independent Children’s Lawyer advised the Court that the father’s solicitor had some months prior served the mother’s legal representatives and the Independent Children’s Lawyer with an unsealed copy of a Response to Initiating Application dated 24 June 2024 and an Affidavit in the name of the father sworn 24 June 2024. It was these documents, which the father filed on 3 December 2024.
By his Response to Initiating Application, the father opposed the mother’s application and sought injunctive orders restraining the mother and Morgan from accessing gender affirming treatment and/or from changing her name.[2] The father by his Affidavit filed on 3 December 2024 challenged Morgan’s competence to consent to gender affirming therapy and submitted by reference to several criteria that the administration of Stage 2 treatment to Morgan was not in her best interests.[3] The father also:
(a)Contested the diagnosis of gender dysphoria;
(b)Asserted that the mother had coerced Morgan into changing her gender in an “attempt to cause [the father] more psychological trauma” (referencing abuse, which the father says he suffered during the relationship and subsequent to separation);[4]
(c)Advised the Court Child Expert that “he is against Morgan’s gender reassignment because it is against his Christian faith”;[5] and
(d)Advised the Court that on Morgan attaining the age of 18 years, he will not impede any decision by her to undergo gender reassignment.[6]
[2] Response to Final Orders sworn by the father on 3 December 2024.
[3] Affidavit of Father filed sworn 24 June 2024, paragraphs 28 to 29 (inclusive).
[4] Father’s affidavit filed 3 December 2024, paragraph 16.
[5] Child Impact Report dated 9 August 2024, paragraph 36.
[6] Father’s Affidavit filed 3 December 2024, paragraph 31.
On 29 May 2024, by an Order of the court, an Independent Children’s Lawyers was appointed for Morgan. The Independent Children’s Lawyer by her counsel’s Outline of Case Document, filed on 28 November 2024, supported the mother’s application and sought orders in the terms proposed by the mother.[7]
[7] Case Outline Document of the Independent Children’s Lawyer filed 28 November 2024.
The Independent Children’s Lawyer also relied upon:
(a)A Joint Chronology; and
(b)A Child Impact Report prepared by a Court Child Expert dated 9 August 2024.
At the commencement of the trial, I asked the father’s solicitor whether he sought leave to cross-examine Dr B or Dr D. I asked that question in circumstances where the father’s solicitor had not complied with Orders requiring him to file a Case Outline Document nor had the father given the mother’s legal representatives, the Independent Children’s Lawyer or the experts referred to above notice that he wished to cross-examine them as he was obliged to do pursuant to an Order made by the Honourable Justice Riethmuller on 30 August 2024. After taking instructions, the father’s solicitor advised me that the father did not wish to cross-examine and thereby test the evidence of Dr B or Dr D. Accordingly, the affidavits of Dr B and Dr D together with their reports dated 28 August 2024 and 27 August 2024 respectively, were admitted into evidence. It was apparent from the reports of Dr B and Dr D that they were each aware that the father does not consent to Morgan’s proposed treatment. It was also apparent from Dr B’s report that since 2019, she has made several unsuccessful attempts to contact the father to discuss Morgan’s treatment. She said that the father had made no effort to contact her.[8] The father disputed this in his oral evidence and said that he had contacted Dr B on one occasion in 2019. He conceded in his oral evidence that he had made no effort whatsoever to communicate with Dr D because “as a Christian” he does not agree with the services afforded by Dr D to Morgan.
[8] Affidavit of Dr B filed 13 September 2024, page 16 of 25.
The proceedings were listed for trial in circumstances where there was a controversy between Morgan’s parents about whether Morgan suffers from Gender Dysphoria and/or whether Morgan is competent to consent to Stage 2 treatment. By the conclusion of the trial, however, the father’s solicitor made a submission that:
(a)The father consented to an order that the mother have sole decision-making responsibility for Morgan;
(b)The father could not challenge Morgan’s diagnosis of Gender Dysphoria in circumstances where the medical evidence in support of such a diagnosis was not challenged by him. Despite inviting the father to do so, his solicitor declined my invitation to address me about whether the reports of Dr B and Dr D satisfied the criteria referred to at Rule 1.11(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). I discuss the terms of Rule 1.11(5) below; and
(c)The only basis for the father’s objection to the orders sought by the mother was the practise of the Christian faith by the father.
Given the concessions made by the father’s solicitor during his closing submissions, it follows that as a matter of law, I can make the orders sought by the mother without any further deliberation. It is regrettable for Morgan that she has unnecessarily been the subject of litigation for a period of nine months. It was the opinion of the Court Child Expert that Morgan’s “uncertainty of knowing whether or not…[she] can continue with her gender reassignment” has caused her significant distress. Indeed, Morgan made efforts to end her life in mid-2024. My desire is that the Order to be pronounced by me will ease the emotional burden, which Morgan has carried to date.
Notwithstanding the concession, which the father belatedly made, I will set out below the reasons for my decision. The questions, which I must decide may be summarised as follows:
(a)Does Morgan have Gender Dysphoria as described in the DSM-5?
(b)Is Morgan Gillick competent to consent to the administration of Stage 2 treatment?
(c)Is the administration of Stage 2 treatment for Gender Dysphoria in Morgan’s best interests?
(d)Should the final parenting orders made on 21 March 2018 be varied or discharged?
(e)Whether an order ought to be made for the mother to have sole parental responsibility for Morgan and sole decision-making authority in respect of all decisions concerning major long-term issues affecting Morgan?
(f)Is it in Morgan’s best interests to formally change the name recorded on her birth certificate?
BRIEF HISTORY
The parties married in 2006, separated in 2011 and divorced in 2015. Morgan is the only child of the relationship. In addition to Gender Dysphoria, Morgan has another medical condition, post-traumatic stress order, generalised anxiety disorder and an Autism Spectrum Disorder.[9]
[9] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
On 21 March 2018, and with the consent of the parties and an Independent Children’s Lawyer, final parenting orders were made by the Federal Circuit Court of Australia (as it was then known). The final Order included provisions for:
(a)The parties to have equal shared parental responsibility for Morgan;
(b)Morgan to live with the mother; and
(c)Morgan to spend time with the father on the fifth weekend of each school term and during school holiday periods.
In early 2019, Morgan had a discussion with her mother and said that she felt like she was “a girl in a boy’s body”. Morgan also asked to be referred to as Morgan in lieu of the male name assigned to her at birth.[10] The mother says that she did as requested by Morgan and “from that point onwards…used the identified pronouns of she and her”.[11]
[10] Mother’s Affidavit filed 23 September 2024, paragraph 5.
[11] Mother’s Affidavit filed 23 September 2024, paragraph 6.
In mid-2019 Morgan socially transitioned to female at school.[12] Morgan advised the Court Child Expert that following her transition, her father told her that “she ‘doesn’t exist’ if she identifies as transgender” and “didn’t want to have anything to do with [her]”.[13] It is against this background that Morgan has not spent any time with her father since March 2019.[14] The mother says that the father “has not made any attempt to speak to or spend time with [Morgan] since April 2019” and further, says that Morgan does not wish to speak to or spend time with her father.[15]
[12] Mother’s Affidavit filed 23 September 2024, paragraph 31; Affidavit of Dr B filed 13 September 2024, page 12 of 25.
[13] Child Impact Report dated 9 August 2024, paragraph 21.
[14] Child Impact Report dated 9 August 2024, paragraph 35.
[15] Mother’s Affidavit filed 23 September 2024, paragraph 57.
The father has also refused to refer to Morgan by her preferred pronoun. During interviews for the Child Impact Report in August 2024, the father referred to Morgan by the male name endorsed on her birth certificate and referred to Morgan by the pronoun “him”. By his trial affidavit, he also referred to Morgan by the prefix of “Master” being the prefix attached to the name of a young gentleman or boy. Morgan’s view about her father’s conduct is that he is “only thinking about himself in this transition” and he “does not care about anyone else”.[16]
[16] Child Impact Report dated 9 August 2024, paragraph 25.
In late 2019, Morgan commenced treatment for suppression of her male puberty by way of an implant, which suppresses the production of sex hormones.[17] The prolonged use of that medication risks impairing bone density and Morgan’s treating specialist has already identified that Morgan suffers from low bone density compared to children of her age.[18] The therapy now proposed will induce a female puberty. It is referred to by Morgan’s treating specialist as a “gender affirming feminising treatment”.[19]
[17] Affidavit of Dr D filed 4 December 2024, page 16 of 56.
[18] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
[19] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
Regrettably, Morgan’s distress about her predicament has caused her to be on “in-home suicide watch”. In mid-2024, Morgan attempted to end her life.[20] My desire is that the Order to be made by me relieve Morgan’s suffering.
APPLICABLE LEGAL PRINCIPLES
[20] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
Gillick competence
The decision of the Full Court of the Family Court of Australia in Re: (2017) 57 Fam LR 503 (“Re: Kelvin”) sets out the current law in relation to consent for Stage 2 treatment. The Full Court in response to questions stated for its opinion said as follows:
Question 2:Where Stage 2 treatment is proposed and the child consents to the treatment, the treating medical practitioners agree that the child is Gillick competent to give that consent and the parents of the child do not object to the treatment, is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent?
Answer:No.[21]
[21] Re: Kelvin (2017) 57 Fam LR 503.
However, if there is a genuine dispute or controversy between the parties as to whether the treatment should be administered (e.g., if the parents or the medical professionals are unable to agree), then “[t]here is no doubt that the Court has the jurisdiction and the power to address issues such as those”.[22]
[22] Re: Kelvin (2017) 57 Fam LR 503 at [167].
Accordingly, where appropriately qualified medical and allied health professionals are satisfied that a subject child is Gillick competent, and the treatment which is proposed is therapeutic, and there is no controversy between a child’s parents, there is no necessity to make application to this Court for any Order.
That approach is now reflected at r 1.11(1)(b) of the Rules, which provide that the rules relating to medical procedures only apply where “there is a dispute about the Gillick competence of, or the diagnosis or treatment of a child for gender dysphoria”.
If there is a dispute between a child’s parents regarding the commencement of Stage 2 treatment and/or whether a child is Gillick competent, the Court must make an assessment about whether to authorise Stage 2 treatment by having regard to the best interests of the child as the paramount consideration. In making this assessment, the Court should attribute significant weight to the views of the child in accordance with his or her age or maturity.[23]
[23] Re: Imogen (No.6) (2020) 61 Fam LR 344 at [45].
The administration of Stage 2 treatment to a child suffering from the condition of Gender Dysphoria is a decision for the child to make insofar as the child has competence to make the decision. It is a matter for the Court to decide if the child lacks competence to decide for himself/herself.[24]
[24] Re: Jamie (2013) 50 Fam LR 369.
The Court must decide the question of the child’s competence, determined by application of the evidence to the legal principles enunciated in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, which were confirmed by the High Court in Secretary, Department of Health and Community Services v J.W.B and S.M.B (“Marion’s case”) in the following terms:[25]
A child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed.
[25] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at [237] – [238]; Secretary, Department of Health and Community Services v J.W.B and S.M.B (1992) 175 CLR 218 (“Marion’s Case”).
The Court has jurisdiction and power to determine a controversy between the parties about consent by making an order or declaration as to Gillick competence under the welfare jurisdiction;[26] a parenting order[27] or an order using the general powers conferred by s 34(1) of the Family Law Act 1975 (Cth) (“the Act”)[28] including an order dismissing an application made under any of those sections.[29]
[26] Family Law Act 1975 (Cth) s 67ZC.
[27] Family Law Act 1975 (Cth) s 64B(2)(i); Family Law Act 1975 (Cth) s 65D(1).
[28] See Re: Kelvin (2017) 57 Fam LR 503 at [66].
[29] Re: Imogen (No. 6) (2020) 61 Fam LR 344 at [31].
As referred to above, r 1.11 of the Rules applies to these proceedings given there is a dispute between the parties about whether Morgan is Gillick competent, and in circumstances where until the time of closing submissions, the father challenged the diagnosis of Gender Dysphoria.[30] As a consequence, evidence in accordance with r 1.11(5) must be given to satisfy the court that the proposed medical procedure is in the best interests of Morgan. Rule 1.11(5) is in the following terms:
[30] Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) r 1.11.
(5)The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:
(a) the exact nature and purpose of the proposed medical procedure;
(b)the particular condition of the child for which the procedure is required;
(c) the likely long-term physical, social and psychological effects on the child:
(i) if the procedure is carried out; and
(ii) if the procedure is not carried out;
(d) the nature and degree of any risk to the child from the procedure;
(e)if alternative and less invasive treatment is available—the reason the procedure is recommended instead of the alternative treatments;
(f) that the procedure is necessary for the welfare of the child;
(g)if the child is capable of making an informed decision about the procedure—whether the child agrees to the procedure;
(h)if the child is incapable of making an informed decision about the procedure—that the child:
(i) is currently incapable of making an informed decision; and
(ii)is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;
(i) whether the child’s parents or carer agree to the procedure.
Reconsideration of final parenting orders
Section 65DAAA of the Act provides that the Court may consider whether there has been a significant change in circumstances when reconsidering a final parenting order. Ultimately, the Court should be satisfied that it is in the child’s best interests for the final parenting orders to be reconsidered. Without limiting s 60CC, the Court should also have regard to the matters set out in s 65DAAA(2).
While the existence of a ‘final’ parenting order does not prevent the court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case,[31] it has long been the practice for the Court to apply a degree of caution when considering whether to re‑open a final parenting order.
[31] Poisat & Poisat (2014) FLC 93-597 at [37] - [38]; Family Law Act 1975 (Cth) s 65D(2); Skerrett & Kryvenko (No 3) [2024] FedCFamC1F 267.
The Full Court in Rice & Asplund (per Evatt CJ) said:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.[32]
[32] Rice & Asplund (1979) 6 Fam LR 570 at [7].
Subsequent to the commencement of s 65DAAA in May 2024, there have been what the Full Court describes as “divergent first instance decisions concerning possible conflict between the statute and the common law rule in Rice and Asplund about the first step actually required of a court, when determining whether to permit an application to revisit final parenting orders”.[33]
[33] Radecki & Radecki [2024] FedCFamC1A 246 at [57].
The Full Court has now clarified that the word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders.[34]
[34] Radecki & Radecki [2024] FedCFamC1A 246 at [79].
Fortunately, I do not need to analyse the significant law, which has developed subsequent to 1979 when the decision of Rice and Asplund was delivered nor do I need to analyse the significant law, which has developed with respect to an interpretation of s 65DAAA of the Act.
In the case at bar, each of the parties and the Independent Children’s Lawyer have now provided their consent to reconsider the 2018 orders for the purposes of s 65DAAA(3) of the Act. This being so and noting the consent of the parties and the Independent Children’s Lawyer, a precondition for a reconsideration of the final parenting orders has been met.
Change of name
The matter of the child’s surname is a parenting consideration and must be considered pursuant to the provisions of Part VII of the Act.
Section 60B of the Act provides the objects of the Act and focus on the Court’s obligation to ensure that the best interests of the child are met. Section 60B of Act provides:
(1)The objects of this Part are to ensure that the best interests of children are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.Pursuant to s 60CA when considering what orders to make I am to have regard to the best interests of the child as the paramount consideration. In order to better determine what is in a child’s best interests, s 60CC of the Act must be applied and considered.
The Full Court gave consideration to the change of a child’s surname in Chapman & Palmer (1978) 4 Fam LR 462. At 469 the Full Court said:
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court provided further assistance at 471:
…the factors to which the Court should have regard in determining whether there should be any change in the surname of a child include the following:
(a) The welfare of the child is the paramount consideration;
(b) The short and long-term effects of any change in the child’s surname;
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship; and
(f) The effect of frequent or random changes of name.
The recent amendment to the Births, Deaths and Marriages legislation, allows a sole parent to change his or her child’s name if he/she has sole parental responsibility pursuant to a final parenting order made under the Act to make decisions about:
(a)major long-term issues within the meaning of the Family Law Act; or
(b)the child’s name.
DETERMINATION
Does Morgan have Gender Dysphoria as described in the DSM-5?
The diagnostic criteria for Gender Dysphoria as it relates to adolescents and adults is set out in the 5th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (2013) (‘DSM-5’), pages 452 to 453 as follows:
A. A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least six months duration, as manifested by at least two of the following:
1. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).
3. A strong desire to the primary and/or secondary sex characteristics of the other gender.
4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).
5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).
6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).
B. The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The World Professional Association for Transgender Health, Standards of Care (“the WPATH Guidelines”) sets out the generally accepted interventions which fall into three stages as follows:
1. Fully Reversible Interventions: These involve the use of GnRH analogues to suppress oestrogen or testosterone production and consequently delay the physical changes of puberty. Alternative treatment options include progestins (most common medroxyprogesterone) or other medications (such as spironolactone) that decrease the effects of androgens secreted by the testicles of adolescents who are not receiving GnRH Analogues, Continuous oral contraceptives (or depot medroxyprogesterone) may be used to suppress menses.
2. Partially Reversible Interventions: These include hormone therapy to masculinise or feminise the body. Some hormone-induced changes may need reconstructive surgery to reverse the effect (e.g., gynaecomastia caused by oestrogens), while other changes are not reversible (e.g., deepening of the voice caused by testosterone).
3. Irreversible interventions: These are surgical procedures. A staged process is recommended to keep options open through the first two stages. Moving from one stage to another should not occur until there has been adequate time for adolescence and their parents to assimilate fully the effects of earlier interventions.
This proceeding is in respect of Stage 2. The treatment the subject of the mother’s application involves the administration of hormonal medication to initiate the secondary sexual characteristics and appearance of the female sex.[35]
[35] Affidavit of Dr B filed 13 September 2024, page 10 of 25.
The evidence, which was not challenged by the father is that Dr B, child and adolescent psychiatrist, made a diagnosis of Gender Dysphoria in August 2019.[36] Dr B assessed Morgan as being capable of consenting to the administration of hormonal medication to “suspend unwanted pubertal development” (“puberty blockers”).[37] In November 2019, Morgan was assessed by a medical specialist who prescribed her puberty blockers.[38]
[36] Affidavit of Dr D filed 4 December 2024, page 16 of 56.
[37] Affidavit of Dr B filed 13 September 2024, page 10 of 25.
[38] Affidavit of Dr D filed 4 December 2024, page 16 of 56.
In 2021, Morgan was referred to C Service, which is a specialist, multidisciplinary service for gender diverse children and young people. Having been so referred, Morgan commenced under the care of Dr D, a medical specialist. She also continued under the care of Dr B (supra).
In accordance with r 1.11(5) of the Rules, the mother has filed expert witness affidavits from Morgan’s treating practitioners, Dr B, and Dr D addressing the proposed treatment. Rule 1.11(5) of the Rules reads as follows:
(5)The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:
(a) the exact nature and purpose of the proposed medical procedure;
(b)the particular condition of the child for which the procedure is required;
(c) the likely long-term physical, social and psychological effects on the child:
(i) if the procedure is carried out; and
(ii) if the procedure is not carried out;
(d) the nature and degree of any risk to the child from the procedure;
(e)if alternative and less invasive treatment is available—the reason the procedure is recommended instead of the alternative treatments;
(f) that the procedure is necessary for the welfare of the child;
(g)if the child is capable of making an informed decision about the procedure—whether the child agrees to the procedure;
(h)if the child is incapable of making an informed decision about the procedure—that the child:
(i) is currently incapable of making an informed decision; and
(ii)is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;
(i) whether the child’s parents or carer agree to the procedure.
I am satisfied that the evidence of the two experts concerned satisfies the requirements of the Rules and I summarise their evidence in the paragraphs below.
Evidence of Dr B, child and adolescent psychiatrist
Dr B is a child and adolescent psychiatrist. Dr B has been Morgan’s treating doctor since 2019 and has attended upon her on 24 occasions between July 2019 and August 2024.[39]
[39] Affidavit of Dr B filed 13 September 2024, pages 17 to 18 (inclusive).
By her report dated 28 August 2024, Dr B confirms that Morgan suffers from a marked incongruence in at least two of the six criterium referred to at pages 452 to 453 of DSM-5. Her report also expresses an opinion that “Morgan’s health and emotional wellbeing is almost certain to deteriorate” without “gender affirming feminising treatment”. During their sessions, Dr B records that Morgan has “talked…about her distress around ongoing delays of being able to access… [Stage 2] treatment” and describes “how hurtful it is that her father does not recognise or support her”.[40] Sadly, and as discussed above, Morgan has also been suicidal due to ongoing uncertainty about whether she is able to undertake Stage 2 treatment.[41]
[40] Affidavit of Dr B filed 13 September 2024, page 13 of 25.
[41] Affidavit of Dr B filed 13 September 2024, page 13 of 25.
Dr B says as follows:
I have made the diagnosis of [Morgan]'s Gender Dysphoria based on clinical observation and interviews, supplemented by collateral information from her biological mother. I have also received correspondence from her treating GP (referral letter).
[Morgan] was referred to me in June 2019 and in correspondence received at that time, from Dr [E], she reported that [Morgan] identifies as a girl. She also reported that [Morgan] had seen Dr [F] (a psychiatrist) "who has diagnosed gender identity disorder and dysphoria".
In my role and according with the qualifications and clinical experience, I have diagnosed [Morgan] with Gender Dysphoria. I have provided medical exploration and education to her and her mother according to my level of training.[42]
[42] Affidavit of Dr B filed 13 September 2024, page 16 of 25.
As described above, Morgan has “co-occurring mental health conditions” such as post-traumatic stress order, generalised anxiety disorder and an Autism Spectrum Disorder.[43] Dr B considered whether these conditions had an impact on or otherwise caused Gender Dysphoria. She has ruled out this possibility.[44]
[43] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
[44] Affidavit of Dr B filed 13 September 2024, page 15 of 25.
Evidence of Dr D, medical specialist
Dr D is a medical specialist and worked at C Service since 2021. She has been Morgan’s treating endocrinologist since 2022 and provides “gender affirming care”.
Dr D’s treatment of Morgan has been premised on the diagnosis made by Dr B to the effect that Morgan suffers from Gender Dysphoria.
Evidence of the Mother
By her affidavit filed on 23 September 2024, the mother says as follows:
On 9 February 2019, [Morgan] came to me and said words to the effect that 'he felt like he was a girl in a boy's body' and asked to be called her chosen name being [Morgan].
[Morgan]'s feminine tendencies have been noticeable from about 18 months of age and at 3 years of age preferred wearing girl's underwear. They became open after the conclusion of our last proceedings in family court when I believe she may have felt safe to be her true self.
[Morgan] became more vocal about wanting girl's clothing. This started with requests for pyjamas and clothing that were marketed for girls. Initially the clothing was worn only at home but expanded to outfits worn when leaving the house.[45]
[45] Mother’s Affidavit filed 23 September 2024, paragraphs 26 and 27.
The mother’s own written evidence supports Dr B’s opinion that Morgan meets the diagnostic criteria for Gender Dysphoria.
Under cross-examination, the mother gave evidence that neither Dr B nor Dr D had altered their diagnosis of Gender Dysphoria in the period subsequent to publication of their respective reports in August 2024.
During closing submissions, the father’s counsel for the first time advised me that the father accepted the written evidence given by Dr B and Dr D and conceded that Morgan has Gender Dysphoria.
Is Morgan Gillick competent to consent to the administration of Stage 2 treatment?
As discussed above, the Court must decide the question of the child’s competence, determined by application of the evidence to the legal principles enunciated in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, which were confirmed by the High Court in Secretary, Department of Health and Community Services v J.W.B and S.M.B (“Marion’s case”) in the following terms:
A child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed.[46]
[46] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at [237] – [238]; Secretary, Department of Health and Community Services v J.W.B and S.M.B (1992) 175 CLR 218 (“Marion’s Case”).
Dr B has expressed an opinion to the effect that “[Morgan] [has] demonstrated capacity to give informed consent”.[47] Such an opinion was not challenged by the father.
[47] Affidavit of Dr B filed 13 September 2024, page 17 of 25.
By his written evidence, the father expressed a belief that “Master [Surname] is not capable at this juncture of his life journey to demonstrate maturity” such that Morgan can provide consent to the proposed treatment. He gave evidence in support of that proposition. However, and during closing submissions delivered by his solicitor, the father conceded that the evidence in the expert reports is correct. This being so, it follows that the father has conceded that Morgan is competent to consent to the administration of Stage 2 treatment.
By reason of the father’s concession with respect to the diagnosis and Morgan’s competence to consent to treatment, it is very regrettable that these proceedings were not resolved earlier. Court intervention was not required.
Even if the father had not made such a concession, I would have made a finding that Morgan is Gillick competent to consent to the administration of Stage 2 treatment. I arrive at that conclusion by reference to the following:
(a)Dr B, the mother and Morgan have together discussed the effects of the proposed treatment (both reversible and irreversible effects), side effects such as the loss of sexual function and monitoring by medical professionals in the long term.[48] It was Dr B’s view that Morgan understood the information, which was provided to her;[49]
[48] Affidavit of Dr B filed 13 September 2024, page 11 of 25.
[49] Affidavit of Dr B filed 13 September 2024, page 11 of 25.
(b)Morgan “has done reading on…[the] treatments” and “has reportedly discussed them at length with her mother”. Dr B says that Morgan’s “treatment goals have been consistent for years”;[50]
[50] Affidavit of Dr B filed 13 September 2024, page 16 of 25.
(c)Dr B and Morgan have discussed the topic of “fertility preservation”. During this discussion, Morgan said that she was not interested in fertility preservation for two reasons:
(i)Her acrimonious relationship with her father had impacted on her desire for children; and
(ii)She did not want to “endure masculinisation in order to provide an adequate sperm sample”;[51]
[51] Affidavit of Dr B filed 13 September 2024, page 12 of 25.
(d)It was Dr B’s opinion that Morgan’s expectations with respect to the proposed treatment are “in line with what the treatment can do”;[52]
(e)Morgan has advised Dr D that “she wants to start oestrogen therapy to induce a female puberty as soon as is possible and has given consent”;[53] and
(f)The mother gave oral evidence in the following terms:
[Morgan] sees [Dr B] on a regular basis every three months and she attends at [C Service] every six months for monitoring. [Morgan] understands the lifetime effects involved in undertaking Stage 2 treatment and that such treatment will not only affect her future relationships but will impede on her ability to have children. [Morgan] has told me that she does not want to continue her father’s legacy and that there are other ways to have children.
The mother also gave oral evidence that:
[Morgan] understands more about the treatment than [the mother] does and that [Morgan] has taken the initiative to research not only the implications of undertaking Stage 2 treatment but also the ultimate effects of transitioning. [Morgan] is prepared to go through what she needs to be herself.
[52] Affidavit of Dr B filed 13 September 2024, page 15 of 25.
[53] Affidavit of Dr D filed 4 December 2024, page 19 of 56.
Morgan is aged 16 years. It is apparent from the expert evidence that she understands the side effects of Stage 2 treatment in the long term and in the short term. Morgan has made her wishes clear having been provided with information by her treating practitioners and her wishes to proceed with Stage 2 treatment appear to be well considered and strongly expressed.
When determining whether Morgan is Gillick competent to consent to the administration of Stage 2 treatment, I have considered the decision of Bell v Tavistock in that:
[There are] difficulties and complexities associated with the question of whether children are competent to consent to the prescription of puberty blockers and cross-sex hormones. They raise all the deep issues identified in Gillick, and more. Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.[54]
[54] Bell and another v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust and others intervening) [2021] EWCA Civ 1363 (“Bell v Tavistock”) at [92].
In the same way as my colleagues, I accept that particularly in recent times, the prescription of puberty blockers and hormones to children has been the subject of great controversy. It is not necessary to involve myself in that controversy in circumstances where each of Morgan’s parents now agree that she has a diagnosis of Gender Dysphoria and each of them agree that Morgan is Gillick competent. As discussed above, it became clear during the trial that the father’s only opposition to the proposed treatment was his “Christian faith”. At law, the practise of the “Christian faith” is not a ground for objection to treatment.
Is the administration of Stage 2 treatment for Gender Dysphoria in Morgan’s best interests?
Morgan expressed to the Court Child Expert that if she had to wait until she was 18 years old for gender reassignment, this would impact her “very badly”. Particularly, Morgan understands that she cannot remain on “puberty blockers” for much longer due to the adverse effects on her health. She advised the Court Child Expert that if she were to stop the puberty blockers, she would commence puberty which would be psychologically and physically harmful because she does not want to develop “male features”.[55]
[55] Child Impact Report dated 9 August 2024, paragraph 25.
With respect to Morgan’s mental health, the Court Child Expert said as follows:
[Morgan]’s seemingly poor mental health is of serious concern, especially because of her recent suicidality. It seems that the uncertainty of knowing whether or not [Morgan] can continue with her gender reassignment or if she has to wait until she is 18 years old as well as her involvement in parenting issues is causing her significant emotional distress. It seems that [Morgan] would benefit from having a sense of certainty about her gender reassignment treatments plan and her future parenting arrangements in order for her mental health issues to be able to be adequately managed.[56]
[56] Child Impact Report dated 9 August 2024, paragraph 42.
In her report, Dr B observed that Morgan has exhibited increased distress and suicidal ideation due to the delay in accessing treatment despite adequate engagement in mental health treatment and access to puberty blockers. Dr B concluded as follows:
In conclusion, it is in the best interest of [Morgan] to have Phase 2 Treatment for Gender Dysphoria (feminising treatment).
This is evidenced by her ongoing distress from Gender Dysphoria, the likely negative long-term impacts of non-treatment, the non-existence of alternative treatment, the necessity of Phase 2 Treatment for her long-term health and well-being, her agreement to (and in my opinion, her ability to make an informed decision regarding) Phase 2 Treatment.[57]
[57] Affidavit of Dr B filed 13 September 2024, page 19 of 25.
In her report, Dr D indicated that the proposed treatment for Morgan would be in the form of an oral tablet or transdermal patch. Initially, Morgan would be administered a low dose of hormone, which would slowly increase over several months. Full hormone replacement may not be reached for 18 months to two years, at which time Morgan would be 18 years old.[58]
[58] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
Dr D highlighted the negative side-effects of the proposed treatment. These risks include blood clots, chronic problems with veins in the legs, pulmonary embolism, stroke, Type 2 diabetes, liver disease, high cholesterol, high blood pressure, nausea and vomiting and the development of benign tumours of the pituitary gland.[59]
[59] Affidavit of Dr D filed 4 December 2024, page 17 of 56.
Notwithstanding these risks, Dr D expressed concern that if gender affirming treatment is not given:
(a)Morgan will continue to remain pre-pubertal until she reaches 18 years. Further use of pubertal blockers will impair Morgan’s bone mineral density. This risk is increased on account of Morgan’s “co-existent [medical condition]”;[60] and
(b)Morgan’s mental health will deteriorate, and she will risk being bullied by her peers due to her pre-pubertal appearance.[61]
[60] Affidavit of Dr D filed 4 December 2024, page 19 of 56.
[61] Affidavit of Dr D filed 4 December 2024, page 19 of 56.
For her part, Dr B observed that Morgan’s distress with respect to her inability to progress to Stage 2 treatment has intensified such that she has expressed suicidal ideation.[62] Her behaviour in mid-2024 was such that Morgan was detained by an ambulance officer exercising powers under the mental health legislation and taken to hospital.
[62] Affidavit of Dr B filed 13 September 2024, page 15 of 25.
Dr D concluded:
If gender affirming treatment is not given, [Morgan] will continue to remain pre-pubertal until she reaches age 18 years, when she will be able to give informed consent on her own regardless of any dispute or disagreement with her parents.
From a medical viewpoint, prolonged use of puberty blockers risks impairing bone density. It is an uncontested fact that prolonging [Morgan]’s treatment and her continuance of remaining on puberty blockers is detrimental not only her to her physical but mental and emotional wellbeing.[63]
[63] Affidavit of Dr D filed 4 December 2024, page 19 of 56.
The mother by her affidavit expresses her concern in the following terms:
I am gravely concerned that if [Morgan] is required to wait until she is 18 years of age to progress to the hormone treatment that she may not survive that long. [Morgan] has expressed on many occasions the wish to terminate her life as she does not feel she is living her true life and hates the body she is in. [Morgan] remains adamant that she wishes to progress to Phase 2 hormone therapy.[64]
[64] Mother’s Affidavit filed 23 September 2024, paragraph 49.
Whilst the father in his oral evidence expressed concern about the effects puberty blockers are having on Morgan’s bone density, he also expressed a view that that she “should not have been put on them in the first case”, and that allowing children to undergo this sort of treatment is “mutilation of children”.
For her part, the Court Child Expert expressed a view that “[d]ue to [Morgan]’s stage of development, it would likely be distressing for her not to be able to make decisions about what she feels is right for her in regard to her gender identity”.[65]
[65] Child Impact Report dated 9 August 2024, paragraph 43.
The Independent Children’s Lawyer, in her closing submissions, agreed with the assessment and views of the Court Child Expert, Dr B and Dr D and expressed concern that any delay in Morgan accessing gender affirming treatment should be avoided. The Independent Children’s Lawyer concluded, and I agree, that that the risks of prohibiting Morgan from undertaking Stage 2 treatment before the age of 18 years far exceeds that of allowing her to do so.
Having considered the written evidence of the experts and the oral evidence of the parties, I find that it is in Morgan’s best interests to start Stage 2 treatment. I am also persuaded by reference to Dr B’s evidence that Morgan’s mental health will improve significantly once Morgan is able to commence Stage 2 treatment.
Whether final parenting orders made on 21 March 2018 should be varied or discharged?
As discussed above, each of the parties and the Independent Children’s Lawyer have now provided their consent to reconsider the 2018 orders for the purposes of s 65DAAA(3) of the Act. This being so and noting the consent of the parties and the Independent Children’s Lawyer, a precondition for a reconsideration of the final parenting orders has been met.
Further, and since 2019, Morgan’s mother has been solely responsible for meeting Morgan’s needs and has single-handedly made decisions in respect of Morgan’s housing, education and medical treatment. Morgan reported to the Court Child Expert that the mother has supported her with her emotions and other difficulties she has experienced since she identified as transgender.[66] Morgan advised the Court Child Expert that after telling her father that she was transgender, the father “didn’t want to have anything to do with [her]”.[67] The chronology referred to above supports that assertion.
[66] Child Impact Report dated 9 August 2024, paragraph 21.
[67] Child Impact Report dated 9 August 2024, paragraph 21.
In addition to Gender Dysphoria, Morgan has significant health needs. The mother’s written evidence and the evidence of the experts persuades me that since 2019, the mother alone has supported Morgan through difficult times in her life and ensured that Morgan has accessed the services of appropriate medical practitioners and allied health professionals. The mother also ensured that Morgan continued with distance education in circumstances where Morgan experienced bullying and other behaviour difficulties at school.[68]
[68] Case Outline Document of the Independent Children’s Lawyer filed on 28 November 2024, paragraph 10.
It is apparent that apart from receiving an email communication from Morgan on 28 October 2024, the father has had no contact with Morgan since early 2019 being almost six years ago. He has not been involved in any decision making for Morgan. It was also apparent that the father only became aware of Morgan’s suicide attempt in mid-2024 during cross-examination. He said that it had no impact on the position he adopted, namely, to oppose Stage 2 treatment on the grounds of his Christian faith. Regrettably, the position adopted by the father with respect to the proposed Stage 2 treatment has damaged his relationship with Morgan. On interview by the Court Child Expert, Morgan described the father as “awful, the worst and an abuser”. She also said, “if I go near that man, I will probably end up killing him for everything that he has done; and because of him not signing the papers, I cannot be who I want to be”.[69]
[69] Child Impact Report dated 9 August 2024, paragraph 24.
Even if the parties had not provided their consent to reconsider the 2018 orders, I would have formed a view that it is appropriate to do so. The inability of Morgan and her father to engage in any way whatsoever since mid-2019 and the complete absence of the father from Morgan’s life satisfies me that there has been a significant change of circumstances since the making of the 2018 orders. Accordingly, it is appropriate to reconsider the terms of those orders.
When revisiting the 2018 orders, I will not make any order for time spending between Morgan and her father. Such an order is not promoted by the mother or the Independent Children’s Lawyer. Morgan is now aged 16 years. She had reached a level of maturity such that she alone is able to decide whether to spend time with her father. I am also mindful of the following opinion expressed by the Court Child Expert:
It would seem to be in [Morgan]’s best interests to live with the parent who is best able to understand and act to prioritise the meeting of [Morgan]’s needs and to ensure [Morgan] feels both emotionally and physically safe, and furthermore, that [Morgan] is not exposed to ongoing risk factors that may further negatively impact her already fragile mental health.[70]
[70] Child Impact Report dated 9 August 2024, paragraph 42.
Morgan has not seen her father almost six years. Their relationship is fractured. A reader of this Judgment can only hope that with the passage of time, the father might learn to accept Morgan’s diagnosis.
Whether an order ought to be made for the mother to have sole parental responsibility for Morgan and sole decision-making authority in respect of all decisions concerning major long-term issues affecting Morgan?
For the reasons referred to in the paragraphs preceding and given the expression of consent by the father to the making of such an order, I find that it is appropriate for Morgan’s mother to hold sole parental responsibility and sole decision-making authority in respect of all decisions concerning major long-term issues affecting Morgan.
Whether it is in Morgan’s best interests to formally change the name recorded on her birth certificate?
Given the allocation of parental responsibility to the mother, it is not necessary for me to address at any length the mother’s application to change Morgan’s name.
As discussed above, the recent amendment to Births, Deaths and Marriages legislation, allows a sole parent to change his/her child’s name if he/she has sole parental responsibility under a final parenting order made under the Act to make decisions about:
(a)major long-term issues within the meaning of the Family Law Act; or
(b)the child’s name.
In any event, I agree with the submissions of the Independent Children’s Lawyer that such a change is reflective of Morgan’s gender identity, formalises the name she already uses and acknowledges her desire to adopt her mother’s surname. I find that it is in Morgan’s best interests for her name to be altered in the manner proposed by the mother.
Conclusion
The orders set out at the commencement of these reasons are those that most capably meet Morgan’s best interests.
I am so satisfied having regard to the unchallenged evidence of Dr B and Dr D that:
(a)Morgan has Gender Dysphoria;
(b)Morgan understands the advantages and disadvantages of the proposed treatment and has demonstrated Gillick competence. The evidence establishes that Morgan has reached an informed decision. It has been a long-held decision; and
(c)The proposed medical treatment is in Morgan’s best interests. It is necessary for her welfare. An alternative and less invasive treatment is not available.
Morgan is fortunate to have the support of a mother who clearly loves her. She is also assisted by health professionals who have cared for her for a significant period of time. I am satisfied that there is sufficient evidence before me, which establishes, to my satisfaction, that Morgan is aware of the risks of treatment and that Morgan has been provided with sufficient information to enable her to make a decision.
Insofar as I am able to do so, I will make orders to protect Morgan’s privacy.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 28 January 2025
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