: RE: SO

[2017] FCWA 142

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RE: SO [2017] FCWA 142

CORAM: O'BRIEN J

HEARD: 25 OCTOBER 2017

DELIVERED : 25 OCTOBER 2017

FILE NO/S : PTW ####

BETWEEN: THE MOTHER

Applicant

AND

THE FATHER
Respondent

Catchwords:

CHILDREN - Approval of special medical procedure - Gender Identity Disorder.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Counsel A

Respondent: No Appearance

Independent Children's Lawyer : Independent Children’s Lawyer

Solicitors:

Applicant: Law Firm A

Respondent: Self-Represented Litigant

Independent Children's Lawyer : Legal Aid WA

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

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The parties to the proceedings are the separated parents of SO, who is nearly 17 years old and has been diagnosed with Gender Identity Disorder. While SO is a birth assigned male, she strongly desires to live as a female and I will refer to her using female pronouns in these reasons.

2On 10 October 2017 SO’s mother, with whom she lives filed an application seeking leave to permit her to authorise treatment for SO with respect to Gender Identity Disorder, including Stage two cross hormonal treatment and such other treatment as may be recommended by her treating medical practitioners for the purpose of facilitating future gender reassignment.

3The mother’s application was supported by the medical team assisting SO, and by the Independent Children’s Lawyer (“ICL”) assigned by Legal Aid Western Australia.

4SO’s parents separated in 2010. Sadly, she has had no direct contact with her father since then. On the mother’s evidence, the father while expressing his love for SO struggled with her feminine gender expression since her early childhood. Following the separation of the parties, he had no contact or communication with SO. The mother further gave evidence that the father had significant issues with drugs and alcohol, anger management and a propensity for violence. He left the State in 2012 and has not been heard from either by the mother, or by his own family with whom the mother maintains regular contact, since that time. His whereabouts are entirely unknown, and the mother gave evidence that she is unaware of any means by which he might be contacted directly or indirectly. In those circumstances, I am satisfied that it is appropriate to dispense with any requirement for service of the application, supporting documents and orders on him.

5SO has been living as a female since she made a clear social transition at school in June 2015. She had expressed feminine characteristics since early childhood and made clear statements that she is a transgender female for the last four years. She commenced Stage one hormone suppression treatment in March 2017 and describes feeling a benefit from the treatment. She has a strong well-informed wish and intention to commence oestrogen treatment and to later have surgical gender affirming treatment.

6The application came before me for hearing this morning. SO, her mother and grandmother were present in court. I told them that I was satisfied on the evidence before me that it was appropriate to make the orders sought and that I would do so immediately so as to not cause any delay in the commencement of treatment.

7I made the following orders:

1.The title of the proceedings be “Re: SO”.

2.The child SO, born [in] 2001 (“the child”), be independently represented by [a solicitor] from Legal Aid Western Australia.

3.Service of the applications, all supporting documents, and these orders on the father be and is hereby dispensed with.

4.The mother have leave to authorise the treatment of the child with respect to Gender Identity Disorder including Stage two hormonal treatment and such other associated treatment 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 the child’s future gender reassignment.

5.The 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 any way.

6.Only anonymised reasons for judgment and orders (with cover sheets excluding registry, file name and number, and lawyer’s names and details, as well as the child’s names, (both past and present) shall be released by the Court to non-parties without further contrary order of the Judge.

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

8.The application otherwise be and is hereby dismissed.

8I now publish brief reasons for my decision.

The law

9While SO’s parents are separated, there have been no proceedings in this Court between them other than divorce proceedings. There are no parenting orders in place. Accordingly, by operation of s 61C of the Family Law Act 1975 (Cth) (“the Act”) each of SO’s parents have parental responsibility for her.

10Parental responsibility means all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children. While that responsibility includes in a general sense the ability of parents to consent to medical treatment on behalf of their children, certain special medical procedures fall outside that responsibility and require determination by the court. The treatment proposed for SO falls within that category.

11Pursuant to s 67ZC of the Act, the court has jurisdiction to make orders relating to the welfare of children. In deciding whether to make such an order, the court must regard the best interests of the child as the paramount consideration.

12While s 60CC of the Act sets out the matters to be considered in determining what is in a child’s best interests, most of those factors have little or no application in a case such as this. In proceedings involving a dispute between parents, the issues that are joined between the parties dictate which of the s 60CC factors are relevant. In the present case, as noted, there is no dispute between the parents as the father has not been involved in SO’s life, nor in any form of contact with her or with the mother, for some years.

13Division 4.2.3 of Chapter 4 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out the procedure to be followed in cases such as this, and a list of the matters which must be established by the evidence in order to satisfy the court that the proposed medical procedure is in the best interests of the child.

The evidence in this case

14The evidence before the court in support of the application was:

(a)the Case Information Affidavit sworn by the Applicant mother on 10 October 2017; and

(b)the affidavit of [Ms Y] on behalf of the ICL sworn on 24 October 2017.

15Exhibited to the affidavit of Ms Y were letters of instruction to, and reports from, the following:

(a)[Dr J], [a specialist in A] at [Hospital A];

(b)[Dr H], [a specialist in B] at Hospital A; and

(c)[Associate Professor A], [a specialist in C] at Hospital A.

16It is unnecessary for the purpose of these brief reasons to set out the contents of those reports. It is sufficient to say that they provided the evidence required by the Rules and that those reporting were unanimous in their support of the proposed course of treatment for SO. I reviewed the reports carefully and I accept the information and expert opinion in them.

17The reports make it clear that SO has sufficient intellectual capacity and maturity to make Stage two, partly irreversible, treatment decisions. She has been unwavering in her identity as female, and is described by the psychiatrist as having a clear understanding of the physical effects of the treatment, including potential adverse effects, and as having realistic expectations of the likely treatment outcomes. The evidence supports a conclusion that there is a low risk of regret on her part in proceeding with treatment, and a high risk of intense psychological distress, unlikely to abate over time, if she is prevented from doing so. She is reported as having previously had periods of low mood and transient thoughts of suicide, and the psychiatrist expresses concern that those would return and be exacerbated if she was refused access to treatment.

18I am satisfied that SO’s desire to proceed with the proposed treatment is deeply held, well-informed and carefully considered.

19On the uncontested evidence before me, I had no difficulty in concluding that it was in SO’s best interests to make the orders sought.

I certify that the preceding [19] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
25 October 2017