Re: Morgan

Case [2025] FedCFamC1F 33

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…

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AGLC
Re: Morgan [2025] FedCFamC1F 33
Case
[2025] FedCFamC1F 33
Decision Date

CaseChat Overview and Summary

The matter before the court involves the parents of Morgan, born in 2008, concerning various issues including Morgan's consent to medical treatment for Gender Dysphoria, parental responsibility, and a reconsideration of final parenting orders. The mother seeks an order that Morgan is competent to consent to Stage 2 treatment for Gender Dysphoria, which the father opposes. The court must determine whether Morgan is Gillick competent to consent to the proposed treatment and whether it is in her best interests. Additionally, the court considers whether there has been a significant change in circumstances warranting a reconsideration of the final parenting orders.

The primary legal issues revolve around Morgan's competency to consent to Stage 2 treatment for Gender Dysphoria and whether it is in her best interests. The court must apply the principles from Gillick v West Norfolk and Wisbech Area Health Authority and Marion’s case to assess Morgan's capacity to give informed consent. Furthermore, the court must consider the best interests of Morgan in light of the evidence presented and the statutory provisions regarding the reconsideration of final parenting orders under the Family Law Act 1975 (Cth).

The court found that Morgan has Gender Dysphoria and is Gillick competent to consent to the administration of Stage 2 treatment. This conclusion was based on the unchallenged evidence of the medical experts, who opined that Morgan understands the treatment's advantages and disadvantages and has made an informed decision. The court also determined that it is in Morgan's best interests to undergo the treatment, as it is necessary for her welfare and no less invasive alternative is available. Regarding the reconsideration of final parenting orders, the court found that there has been a significant change in circumstances, justifying a review of the previous orders. The court ordered that the mother have sole parental responsibility and that Morgan's name be changed to reflect her gender identity.

The court's orders include granting the mother sole parental responsibility for Morgan, allowing her to provide necessary parental consent for Stage 2 treatment for Gender Dysphoria. The court also approved a name change for Morgan from Parker to Morgan. Additionally, the court made orders for confidentiality to protect Morgan's privacy. All former orders were discharged, and the Independent Children’s Lawyer was discharged. The court emphasised the importance of Morgan's welfare and the need for confidentiality to safeguard her identity and privacy.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].