WM v CEO for Department of Communities
[2021] WASC 325
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WM -v- CEO FOR DEPARTMENT OF COMMUNITIES [2021] WASC 325
CORAM: QUINLAN CJ
HEARD: 14 SEPTEMBER 2021
DELIVERED : 28 SEPTEMBER 2021
FILE NO/S: SJA 1089 of 2020
BETWEEN: WM
First Appellant
RM
Second Appellant
AND
CEO FOR DEPARTMENT OF COMMUNITIES
First Respondent
TM
Second Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE DEWSBURY
File Number : PER/PC 629 of 2019
Catchwords:
Protection and care of children – Appeal against decision of the Children's Court – Whether child in need of protection – Whether child suffered emotional abuse – Child diagnosed with gender dysphoria – Whether error in making a protection order (until 18) – Whether court gave adequate reasons for findings – Leave to appeal refused – Appeal dismissed
Legislation:
Children and Community Services Act 2004 (WA), s 7, s 8, s 28, s 37, s 44, s 45, s 46, s 47, s 55, s 133, 146, s 148, s 237, s 150
Children's Court of Western Australia Act 1988 (WA), s 35, s 41
Criminal Appeals Act 2004 (WA), s 7, s 8, s 9
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | W G Spyker |
| Second Appellant | : | W G Spyker |
| First Respondent | : | C J Thatcher SC |
| Second Respondent | : | R L Cohen |
Solicitors:
| First Appellant | : | Spyker Legal |
| Second Appellant | : | Spyker Legal |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Legal Aid WA |
Cases referred to in decision:
AB v Chief Executive Officer, Department for Child Protection [2014] WASC 87
AC v CEO of Department of Child Protection and Family Services [2015] WASC 477
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Brett v Rees [2009] WASCA 159
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
East Metropolitan Health Service v Ellis [2020] WASCA 147
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Samuels v The State of Western Australia [2005] WASCA 193 (2005) 30 WAR 473
SL v Chief Executive Officer of the Department for Child Protection and Family Support [No 2] [2016] WASC 97
Table of Contents
Introduction and summary
Preliminary remarks
Statutory context
Proceedings before the Children's Court
CEO's opening
Ms Pham's evidence
Ms Burge's evidence
Ms Hunter's evidence
Dr Morton's evidence
Dr Moore's evidence
WM's evidence
RM's evidence
CM's evidence
LM's evidence
Mr Schneider's evidence
Dr Whitehall's evidence
The learned magistrate's reasons for decision
Preliminary matters
Diagnosis of gender dysphoria
TM's suicidality
Physical abuse, emotional abuse or neglect
Protection of TM from harm
The best interests of the child and the no order principle
The learned magistrate's conclusion
Grounds of appeal
General principles
Nature of the appeal
Adequacy of reasons
Ground 1
Ground 2
Ground 3
Grounds 4 and 5
Ground 6
Grounds 7 and 8
Ground 9
Ground 10
Ground 12
Conclusion
A final observation
QUINLAN CJ:
Introduction and summary
This is an appeal from a protection order made by the Children's Court of Western Australia in respect of a child, TM, under the Children and Community Services Act 2004 (WA). TM is the second respondent to the appeal.
The protection order was made by Magistrate Dewsbury on 23 October 2020, when TM was over 16 years of age.[1] The application for a protection order in respect of TM was made by the first respondent (the CEO) on 29 November 2019 (the application).
[1] TM's precise age is, of course, well known to all of the parties. I have maintained a general description of TM's age to avoid any potential for TM to be identified: see Children's Court of Western Australia Act 1988 (WA), s 35; Children and Community Services Act 2004 (WA), s 237.
At the time that the CEO made the application, TM was an inpatient at the Perth Children's Hospital (the Hospital). TM was admitted to the Hospital on 8 November 2019 as a consequence of distress and suicidal ideation. The learned magistrate found that upon admission to the Hospital, TM had a genuine plan to commit suicide and was actively suicidal.
In making the protection order, the learned magistrate found that TM's 'suicidal ideation was to a great extent as a result of the effect of … verbal and emotional abuse' experienced by TM in the family home. Her Honour was satisfied, on the balance of probabilities, that by their words and conduct the appellants (TM's parents) had emotionally abused TM. Her Honour further found that the
specific and pressing potential for future harm is the likelihood … that [TM] would experience extreme distress and a recurrence or an increase in suicidal ideation if he were to be forced into a position whereby he has to communicate with his parents and rely upon them to provide him with the necessities of life, and for emotional and psychological support.
The 'emotional abuse' found by the learned magistrate arose in the context of what the learned magistrate accepted was TM's gender dysphoria. According to the evidence that was accepted by her Honour, TM, whose natal sex was female, identifies, and desires to be treated, as male. The expert evidence was that TM experiences significant distress related to his gender dysphoria.
In that context, the learned magistrate found that the appellants did not and do not wish to acknowledge TM's views about his gender and that their response to his views was verbally and emotionally abusive. Her Honour did not find that the appellants' own beliefs or views constituted abuse. It was, rather, the words that they used and their conduct which formed the basis of her Honour's findings.
To be clear, the learned magistrate did not make these findings to be critical of the appellants or, indeed, find that the appellants intended to cause any harm to TM. On the contrary, the learned magistrate was at pains to stress, in her reasons for decision, that the appellants love TM and want to do what they genuinely believe is best for their child.
As will be apparent, a consistent theme in the appellants' case in this appeal (reflected in their approach in the Children's Court) was that the learned magistrate 'considered that a genuine and honestly‑held difference of beliefs [by the appellants] as to the provenance of the child's difficulties and the best way of responding to them constituted emotional abuse'.[2]
[2] Ground 5(b).
The learned magistrate made no such finding, either expressly, or impliedly.
As the learned magistrate made clear, the proceedings before her Honour were not about the causes or treatment for gender dysphoria. The proceedings were not about whether TM should have any particular form of medical treatment in relation to the diagnosis of gender dysphoria, including hormone treatment. None of those matters were the subject of, or determined by, the application. The application was about reducing the real risk and likelihood of harm to TM by reducing and minimising his risk of suicide.
The application before her Honour was, therefore, not a general inquiry into the prevalence, causes and treatment of gender dysphoria. Nor was it about the sometimes complex social and cultural issues that arise, from time to time, in relation to transgender persons.
On the contrary the proceedings were about one distressed (and suicidal) child and about what was in the best interests of that child. The best interests of TM were, as a matter of law, the paramount consideration.[3] All other considerations were secondary.
[3] Act, s 7.
Indeed, insofar as treatment for gender dysphoria is concerned, at the first return date of this appeal, on 12 January 2021, the parties advised me that, while there had been proceedings commenced by TM in the Family Court of Western Australia for orders that included the approval of the commencement of testosterone treatment (the Family Court being an appropriate court in which to seek such orders),[4] those proceedings in the Family Court were to be discontinued (which they later were).[5] This appeal was therefore adjourned on a number of occasions, to enable the parties to explore whether the interests of the parties might be better served by an outcome that did not require further litigation.
[4] Appeal ts 4 (12 January 2021).
[5] See also Appeal ts 12 - 13 (15 June 2021).
Those attempts at resolution proved unsuccessful, and the appeal was heard by me on 14 September 2021.
For the reasons that follow, I am not satisfied that the learned magistrate made any error in making the protection order. I would therefore refuse leave to appeal on each ground and dismiss the appeal.
Before turning to the issues in more detail, it is appropriate to make two preliminary remarks in relation to the form of these reasons.
Preliminary remarks
First, as in the case of the proceedings before the learned magistrate and in her Honour's reasons for decision, I have referred to TM using masculine pronouns. That is TM's preference, which I have respected.
Secondly, it is, of course, necessary that I set out my reasons in sufficient detail and with sufficient certainty to enable the parties to understand the result in the appeal, and indeed to discern whether I have made some mistake of fact or law. The publication of reasons also serves 'a broader interest in maintaining public acceptance of judicial decisions and the judicial system'.[6]
[6] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442 (Meagher JA).
While (I trust) the reasons that follow achieve those purposes, I should observe that, in a number of respects, I have not included certain matters of detail personal to TM, the appellants, and the rest of their family. That includes some of the specific words or phrases said to have been used by the appellants in connection with TM. While the parties' names have been 'anonymised' and, as such will not be recognisable to the general reader, the parties themselves (including TM) will know that the reasons are publicly available. I have therefore endeavoured, as far as is consistent with the obligation to provide reasons, to avoid detail that might cause them further distress. Some of the detail is, regrettably, unavoidable.
Before summarising the proceedings before the Children's Court, it is appropriate to set out the relevant statutory context.
Statutory context
The Children and Community Services Act 2004 (WA) (the Act), amongst other things, makes provision for the care and protection of children. In that context, the Act makes extensive provision in relation to its objects and the principles to be applied in its administration.
Of particular relevance to the proceedings before the Children's Court are s 7 and s 8, which provide:
7.Best interests of child are paramount consideration
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
8.Determining best interests of child
(1)In determining for the purposes of this Act what is in a child's best interests the following matters must be taken into account –
(a)the need to protect the child from harm;
(b)the capacity of the child's parents to protect the child from harm;
(c)the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d)the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from –
(i)the child's parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child's life;
(h)the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i)the child's age, maturity, sex, sexuality, background and language;
(j)the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
(k)the child's physical, emotional, intellectual, spiritual and developmental needs;
(la)the child's educational needs;
(l)any other relevant characteristics of the child;
(m)the likely effect on the child of any change in the child's circumstances.
(2)Subsection (1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.
The 'Court' is defined in the Act to mean the Children's Court.
Part 4 of the Act deals with the 'Protection and care of children'. It provides that the CEO, and only the CEO, may make an application for a protection order.[7]
[7] Act, s 44(1).
There are a variety of types of protection order, including a 'protection order (supervision)', a 'protection order (time‑limited)' and a 'protection order (until 18)'. Both a protection order (time‑limited) and a protection order (until 18) give the CEO parental responsibility for the child in respect of whom the order is made. A protection order (supervision) is a more limited order, which 'does not affect parental responsibility of any person for the child except to the extent (if any) necessary to give effect to the order'.[8]
[8] Act, s 47(2).
The Court's power to make a protection order is found in s 45:
45.Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part –
(a)make the protection order sought in respect of the child; or
(b)make another protection order in respect of the child.
In that context, s 46 also provides:
46. No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
As can be seen from s 45 of the Act, the critical finding that enlivens the power of the Court to make a protection order is that the Court finds that a child is 'in need of protection'. That phrase is given content by s 28, which relevantly provides:
28.When child in need of protection
(1)In this section –
emotional abuse includes –
(a)psychological abuse; and
(b)being exposed to family violence;
harm, in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing, whether caused by –
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances;
neglect includes failure by a child's parents to provide, arrange, or allow the provision of –
(a)adequate care for the child; or
(b)effective medical, therapeutic or remedial treatment for the child.
(2)For the purposes of this Part a child is in need of protection if –
…
(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following –
(i)physical abuse;
…
(iii)emotional abuse;
[(iv)deleted]
(v)neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d)the child has suffered, or is likely to suffer, harm as a result of –
(i)the child's parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii)the child's parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
In determining an application for a protection order the Court is not bound by the rules of evidence. In that regard the Act expressly provides that[9]
evidence of a representation about a matter that is relevant to the protection proceedings is admissible despite the rule against hearsay.
[9] Act, s 146(3).
The admissibility of hearsay evidence is of particular significance as it relates to out‑of‑court statements by children. That is because a child may only be compelled to give evidence or be cross‑examined with the leave of the Court. In that regard, s 150(3) of the Act provides:
The Court must not grant leave … unless the Court is satisfied that the child is unlikely –
(a)to suffer emotional trauma as a result of giving evidence or being cross‑examined; or
(b) to be so intimidated or distressed as to be unable –
(i)to give evidence or be cross‑examined; or
(ii)to give evidence or be cross‑examined satisfactorily.
I turn then to the proceedings before the Children's Court in this case.
Proceedings before the Children's Court
As noted earlier, the CEO brought the application in respect of TM on 29 November 2019. The application sought a protection order (time‑limited) for a period of 2 years.
The grounds for the application were that TM was in need of protection pursuant to s 28(2)(c)(i), (iii) and (v) of the Act. That is, the grounds identified that TM had suffered or was likely to suffer harm as a result of physical abuse, emotional abuse or neglect.
Two days before the CEO made the application, TM had been taken into provisional protection and care pursuant to s 37 of the Act. The application sought an interim order, pursuant to s 133(2)(b) of the Act that TM remain in provisional protection and care. On 15 January 2020, the Court ordered that TM remain in provisional protection and care 'until further order of the Court'.
The application was heard by Magistrate Dewsbury over four days, from 29 September 2020 to 2 October 2020. The CEO, the appellants and TM were all represented in the protection proceedings. The separate representation of a child the subject of protection proceedings is provided for in s 148 of the Act. TM's representative took an active part in the proceedings before the learned magistrate.
Over the course of the hearing the CEO called evidence from three officers of the Department of Communities (the Department): Ms Alyish Pham, Ms Samantha Burge and Ms Kelly Hunter. The CEO also called evidence from two of TM's treating psychiatrists: Dr Katinka Morton and Dr Julia Moore.
The appellants both gave evidence at the hearing and they also adduced evidence from two of their other children: CM (TM's older brother) and LM (TM's older sister). In addition, the appellants called expert evidence from Mr Anthony Schneider, a clinical psychologist, and Dr John Whitehall, a paediatrician and Professor of Paediatrics and Child Health. The appellants also tendered, by consent, affidavits from friends who had contact with the family when TM was younger. Those affidavits speak in very complimentary terms about the appellants' personal qualities.
CEO's opening
Before summarising parts of the witnesses' evidence, it is appropriate to observe that, in opening the CEO's case at the hearing, counsel for the CEO said that the heart of its case was that TM was suicidal in November 2019 and was still at risk at the time of the hearing.[10] Counsel identified the relevant issue as being whether TM was in need of protection, particularly by reference to the prospect that TM 'would suffer emotional abuse if returned [to the appellants]'.[11]
[10] Hearing ts 28 (29 September 2020).
[11] Hearing ts 29 (29 September 2020).
Significantly, counsel for the CEO specifically observed in opening that the hearing was not concerned with medical or psychological treatment of TM's dysphoria. Counsel, in a passage relevant to a proper understanding of aspects of the learned magistrate's reasons for decision, said:[12]
[Y]our Honour, the issues around treatment of the child are greater than what needs to be determined in these proceedings, we say. And [it] is a separate issue whether the child receives hormone treatment, testosterone treatment, is a separate issue. If the department's [sic] guardian, then it will make decisions at that point in terms of … that issue, whether we support the child undergoing testosterone treatment.
We haven't made that decision yet. And it may be we've taken – it may be, from advice that we've received in relation to the issue, that we would, in fact, seek a further independent report in relation to the child's skill at competency in relation to that issue. So the department's position is not fixed in relation to that at this stage. Although obviously we're mindful of the child's distress and the child's desire to go down that path. Regardless of that issue, we say that the child is in need of protection, for the reasons I've expressed.
[12] Hearing ts 29 (29 September 2020).
Turning then to the evidence before the learned magistrate.
Ms Pham's evidence
Ms Pham is a child protection worker with the Department. Her evidence‑in‑chief was principally in the form of an affidavit sworn on 28 November 2019.[13] That affidavit was clearly sworn early in the proceedings.
[13] Affidavit of Aylish Pham affirmed on 28 November 2019 (Exhibit A).
Ms Pham gave evidence in relation to the events leading to the application. The Department first received a referral in relation to TM on 15 November 2019, a week after TM had been admitted to the Hospital due to a high risk of committing suicide. According to the records of the Hospital, TM had disclosed a plan to commit suicide to a school friend, who alerted the police. The police responded to that disclosure by attending upon the family home and taking TM to the Hospital.[14]
[14] Exhibit 5, page 1.
The referral to the Department, which was in writing, was from a senior social worker at the Hospital, Mr Stuart Morris.[15] Mr Morris reported a number of statements made by TM, including that TM did not wish to return home and did not feel safe there. Mr Morris said in the referral that he had engaged with TM due to 'problematic relationships with parents, who have not been able to accept [TM] identifying as male'.[16]
[15] Exhibit A, Annexure A.
[16] Exhibit A, Annexure A, page 1.
In that context, Mr Morris reported claims by TM of physical and emotional abuse.
As to the former, TM reported that his brother (CM) was 'often punching' him:[17]
[TM] wants help to make his brother stop, and verbalised being very scared of his brother a number of times. [TM] does stress his brother is not a bad person, as he is concerned his brother will get into trouble.
[17] Exhibit A, Annexure A, page 2.
As to emotional abuse, TM reported to Mr Morris specific derogatory comments made by TM's father (RM), which are recorded by Mr Morris but which I do not reproduce. The comments apparently related to TM's expressed gender identity.[18]
[18] Exhibit A [16], Annexure A, page 2, par 1.
Ms Pham gave evidence that on 19 November 2019, TM had made further disclosures to Mr Morris, including that his parents, 'continuously' directed disparaging and derogatory comments towards him.[19] The precise words are referred to in Ms Pham's affidavit.
[19] Exhibit A [18].
Ms Pham gave evidence that on 26 November 2019, together with another child protection worker, she conducted a Child Assessment Interview (the Interview) with TM. Ms Pham sets out a number of disclosures made by TM in the course of the Interview. The disclosures included further reference to TM having been punched by CM.[20] TM also referred to derogatory statements by both of his parents, and his mother 'screaming' at him.[21]
[20] Exhibit A [21(h)].
[21] Exhibit A [21(a), (b), (d), (f)].
On the same day as the Interview, Ms Pham received a psychiatric report from Dr Morton. I will deal with that report in the context of Dr Morton's evidence.
Ms Pham ceased her involvement about a week after TM went into provisional protection and care. Ms Burge took over as case manager for TM on 9 December 2019.[22]
[22] Hearing ts 32 (29 September 2020).
In cross‑examination by the appellants' counsel, Ms Pham confirmed that the primary goal of the Department was to reunify children with their parents 'when it's safe to do so'.[23] She was asked a series of questions in relation to the investigation and whether she had spoken with other members of TM's family.[24] The questions appear to have been directed to whether Ms Pham's investigation of TM's case was sufficiently thorough. It was not suggested in cross‑examination that TM had not, in fact, made the allegations (or disclosures) recorded as having been made by TM, although Ms Pham confirmed that she did not challenge TM as to whether they were true or false.[25]
[23] Hearing ts 33 (29 September 2020).
[24] Hearing ts 36 - 54 (29 September 2020).
[25] Hearing ts 61 (29 September 2020).
TM's counsel also cross‑examined Ms Pham. She was asked about TM's affect during the Interview and said that TM was 'particularly distressed talking about his gender identity and his perception of how his family felt about that'.[26] She said that TM told her that he had advised his parents that he identified as male about two years before the Interview.[27]
Ms Burge's evidence
[26] Hearing ts 58 (29 September 2020).
[27] Hearing ts 59 (29 September 2020).
Ms Burge is a senior child protection worker with the Department and her evidence‑in‑chief was also in the form of an affidavit, sworn on 24 August 2020.[28]
[28] Affidavit of Samantha Burge sworn on 24 August 2020 (Exhibit B).
Ms Burge's evidence‑in‑chief was principally concerned with her management of TM's case and various contact with TM and the appellants.
Ms Burge gave evidence that she met with the appellants on 14 January 2020.[29] She said that at that meeting the appellants indicated that they did not agree with the Department's concerns for TM and said that they were unaware that TM was identifying as transgender until his admission to the Hospital.[30]
[29] Hearing ts 63 (29 September 2020).
[30] Exhibit B [27].
Ms Burge recounts that the question of family therapy was the subject of correspondence in May 2020. TM expressly stated on a number of occasions that he did not wish to participate in family therapy.[31] Ms Burge also stated that she contacted TM's sister (LM), at TM's request to arrange contact with TM. LM indicated that she was busy and could not talk, and did not respond to a follow‑up text message.[32]
[31] Exhibit B [37] ‑ [40].
[32] Exhibit B [42].
Much of counsel for the appellants' cross‑examination of Ms Burge related to her care planning in relation to TM. She agreed that she did not challenge TM on his refusal to engage in family therapy.[33]
[33] Hearing ts 68 (29 September 2020).
In answer to TM's counsel, Ms Burge confirmed that the Department had arranged for TM to see a counsellor, and that he found the sessions with the counsellor beneficial.[34]
[34] Hearing ts 77 (29 September 2020).
Ms Burge was asked about, and confirmed that during her time as TM's case manager, TM had expressed thoughts of hurting himself, which she spoke with TM about. In that regard, she stated that TM was admitted to hospital for one night as a consequence, with a follow up service after discharge.[35]
[35] Hearing ts 78 (29 September 2020).
Ms Burge was also asked about TM's maturity. She said that he was articulate and 'very much' had a degree of maturity.[36] Ms Burge was asked about her views as to the veracity of TM's disclosures relating to his treatment by the appellants, and the consistency of that account over time. For example:[37]
[36] Hearing ts 79 (29 September 2020).
[37] Hearing ts 82 - 83 (29 September 2020).
Well, [the appellants] raised concerns about the truthfulness of what [TM] has disclosed?---Okay.
He has had conversations with you. My question is do you have a view about his truthfulness?---No, I never questioned his truthfulness.
…
Is [TM] aware, or are you aware if [TM] is aware, about his parents' position in respect to his allegations?---I've had roundabout conversations with [TM]. … I've said that they don't agree with what the department's position is.
It's the case though, isn't it, that [TM] wants his parents to acknowledge what he says that they've done to him?---Definitely.
…
COHEN, MS: It's the case, isn't it, that [TM] has not backed away from his narrative that he gave at the Children's Hospital?---He has always remained very consistent.
Ms Hunter's evidence
Ms Hunter was, at the time of giving evidence, an acting senior child protection worker with the Department and TM's case manager. Her evidence‑in‑chief included an affidavit, sworn on 24 August 2020.[38]
[38] Affidavit of Kelly Hunter sworn on 24 August 2020 (Exhibit I).
Ms Hunter commenced as TM's case manager on 29 June 2020. Her affidavit recounts a number of contacts and exchanges with TM, as well as email contact with the appellants.
Relevantly, Ms Hunter recounted a conversation with TM on 21 July 2020:[39]
[TM] advised me that he has identified as a male since he was eight years of age and that he has told his parents of his view on multiple occasions particularly in the last two years prior to him entering the Department's care. [TM] spoke to me about the consistent negative response he received from his parents in relation to his male identify [sic – identity]. [TM] advised me that his parents would call him [Comment 1] and [Comment 2] and that [Comment 3].
[39] Exhibit I [14].
I have redacted the precise comments in the final sentence of this passage. I record, however, that Comment 1 in this passage is one of the expressions referred to in Mr Morris' referral of 15 November 2019 (see [46] above). Comment 2 was also recorded in Mr Morris' referral and in the evidence referred to at [47] above. Indeed, in these reasons generally, where I have referred to Comment 1, Comment 2, Comment 3, Comment 4 or Comment 5, those references are to words or phrases that are the same, respectively (e.g. all references to 'Comment 1' are references to the same phrase).
Ms Hunter also deposed as to TM's repeated request that he wished to undergo testosterone therapy.[40] In that regard, she gave the following evidence: [41]
[W]hat's the department's position in relation to treatment for [TM], testosterone treatment?---So the department doesn't have a fixed decision or opinion on testosterone treatment for [TM] at this time. I note that we're consulting with various legal representatives about his Gillick competency and recommendations about that.
[40] Exhibit I [8], [14], [21].
[41] Hearing ts 37 (1 October 2020).
Ms Hunter's affidavit annexed a letter written by TM to the appellants, which TM provided to Ms Hunter on 19 August 2020. The letter is a very personal one, expressing TM's views in relation to his relationship with the appellants. I will not reproduce its contents. It suffices to observe that, in the letter, TM makes reference to having been caused pain by the appellants and specifically reproduces the phrase that I have referred to as Comment 1.[42]
[42] Exhibit I, Annexure A, page 3, final paragraph.
As to TM's condition as at the date of the hearing, Ms Hunter said:[43]
I think as much as [TM] has shown that he is doing quite well independently, he's still a vulnerable young person and I believe having the department as the guardian for [TM] would add emotional safety, as well as practical support to him. And, in fact, that's his view, what he has communicated to me as well. So that he – and I would also add that he – my opinion is that he also really benefits from active case management and having a team of people around him that support him, government and non‑government, whereas I would be the main person but able to communicate regularly and liaise with the other professionals in his life, so we're all coordinated.
[43] Hearing ts 39 (1 October 2020).
In cross‑examination, Ms Hunter was asked about her contact with TM's family and with the care of TM while he had been in supported accommodation. That included an occasion upon which TM was admitted overnight for a mental health admission to Sir Charles Gairdner Hospital. Ms Hunter said that the admission was in June, shortly before she took over as TM's case manager. It is apparent that this was a reference to the same admission as that referred to by Ms Burge.[44]
[44] See [59] above.
The cross‑examination concluded with reference to TM's then stated wish for testosterone therapy:[45]
[45] Hearing ts 46 (1 October 2020).
You indicated at the outset of your evidence that you don't have a fixed position in relation to testosterone treatment; is that right?---That's correct.
And you're still gathering evidence?---Yes, that's correct.
Are you obtaining a second opinion?---That is one of the recommendations put forward, that we would look at an independent opinion.
And that's an independent opinion from a psychiatrist?---An independent opinion from a psychiatrist that's not associated with the Perth Children's Hospital.
Do you propose to liaise with the parents as to the identity of that psychiatrist?---I – I would definitely have a discussion with them, yes, if they would like to partake in that discussion.
Do you consider that you're the one that's going to make the ultimate decision about the testosterone treatment?---No, certainly not.
But it would be someone in your department?---Not necessarily.
Well, would it be the Family Court?---Potentially.
You're not sure?---No.
And as you indicated, you're guided by legal advice?---That's correct.
In cross‑examination by TM's counsel, Ms Hunter gave the following evidence:[46]
In your discussions with [TM], you say in your affidavit he has talked about his allegations or his experiences in the home - - -?---Yes.
- - - with his parents. Have you had any conversations with [TM] whereby he has reconciled or stepped away from those allegations?---No.
Namely, the things that he says about his parents calling him [Comment 1]?---No, he has been very consistent.
Has he expressed any views to you about his parents' denial of his allegations in that respect?---Yes. [TM] – when I speak to him about his parents' views, about that they don't agree with the allegations he has made and that they also deny knowing that he was identifying as a male for quite some time, he gets quite emotional. I've seen him cry when we've talked about that in the past. He feels his parents are being dishonest and lying about that. He doesn't understand or he tells me he doesn't understand why that they would deny that. He also just has told me he feels very let down by that, and also, like, quite unvalidated about his own experience.
[46] Hearing ts 48 (1 October 2020).
Ms Hunter also gave evidence in relation to TM's response to the prospect that he might be required to give evidence in the proceedings, which she said he would find 'quite distressing and stressful'.[47]
Dr Morton's evidence
[47] Hearing ts 50 (1 October 2020).
Dr Morton is a consultant child and adolescent psychiatrist at the Hospital. She was TM's previous treating psychiatrist.
Dr Morton prepared a report dated 26 November 2019, during TM's admission to the Hospital.[48]
[48] Exhibit D.
Dr Morton stated, in her report, that while an inpatient at the Hospital, TM had consistently described exposure to physical, verbal and emotional abuse in the family home. TM had described verbal abuse by the appellants 'making derogatory comments regarding his gender identity'. Dr Morton recounted TM's description of '[WM] as stating that he is [Comment 4] and [RM] saying that he is [Comment 2] and [Comment 1]'.[49]
[49] Exhibit D, page 2.
Again, I have not reproduced the specific comments included in the above passage from Dr Morton's report. Comment 1 and Comment 2, however, are the same expressions I have previously identified at [64] and [66] above. Comment 4 in the above passage is a variant of one of the remarks recorded from the Interview with Ms Pham.[50]
[50] Exhibit A [21(f)].
Dr Morton gave evidence in relation to TM having reported these comments to her and that 'he was consistent in speaking to multiple staff'.[51]
[51] Hearing ts 98 (30 September 2020).
Dr Morton expressed the opinion that TM's comments about the appellants were consistent with the appellants' own comments to her in relation to TM's gender dysphoria. Her report referred to their remarks that TM was 'an actor' and 'a habitual liar'.[52] Dr Morton gave evidence in similar terms, namely that the appellants spoke about TM in 'a highly pejorative manner'.[53]
[52] Exhibit D, page 2.
[53] Hearing ts 97 (30 September 2020).
In her report and her evidence‑in‑chief Dr Morton stated that, in her view, TM would be at a high risk of completed suicide if returned to the appellants' care. She described TM's plans and a previous suicide attempt the previous year.
Dr Morton also gave evidence that TM was completely clear that 'he wanted nothing more to do with private practitioners to whom his parents were asking him to see. So it would be unlikely that he would be willing to see any of these practitioners in the near future'.[54]
[54] Hearing ts 100 (30 September 2020).
In relation to the appellants' concerns about particular 'therapy' for TM, Dr Morton said:[55]
It's important to note that gender dysphoria therapy occurs over a number of stages over a significant period of time, so there would be a number of consents required. There is no single consent for sexual conversion therapy. What I did strongly encourage [TM's] parents to do was to meet with the gender dysphoria service to enable a referral to be made to the gender dysphoria service for counselling that I thought would be life‑sustaining for their son. This wouldn't mean that, necessarily, any of the biological therapies. [The appellants] consistently indicated the belief that once he was in the service, he would inexorably present – progress to gender transition. That is not the way the service works. They also, in their affidavits, made the statement that once he was in the service, it would be 'rubber stamping' from there on, and they suggested a member of staff made that – it's not the way the service works. And certainly, I am not someone who ever obtains consent for that because it's outside my scope of practice. It's a specialist area that would be performed by a specialist psychiatrist.
[55] Hearing ts 101 (30 September 2020).
Dr Morton gave evidence in relation to her account of various interactions with the appellants during TM's admission to the Hospital. She was asked about the affidavit evidence, in particular by TM's father, to the effect that she was 'overly aggressive' in her meeting with the appellants and that she said that they 'must give their consent for the sex change process to start'. Dr Morton stated that was not the case and that the only request she asked the appellants to consider was to meet with the Gender Diversity Service (GDS) at the Hospital and to consider whether TM could have follow up through that service.[56]
[56] Hearing ts 104 - 105 (30 September 2020).
In that context, Dr Morton said that she did not find any evidence of TM lying while on the ward.[57]
[57] Hearing ts 109 (30 September 2020).
In cross‑examination Dr Morton said that she believed that TM's 'suicidality was very, very high in the care of his parents'. She said:[58]
In the care of others, as long as we could identify a safe place for him to live, I certainly had ongoing concerns about his mental health risk consequent to the trauma he had experienced, but I viewed his risk, certainly after discharge and in the short term, as low.
[58] Hearing ts 110 (30 September 2020).
In this context, Dr Morton referred to the occasion, which she later discussed with Dr Moore, in which TM presented to Sir Charles Gairdner Hospital with 'thoughts of deliberate self‑harm that were short‑lived and managed in the community'.[59]
[59] Hearing ts 110 (30 September 2020). See [59] and [68] above.
Dr Morton agreed, in cross‑examination, that it was she who made the initial diagnosis of gender dysphoria.[60] She was taken to the diagnostic criteria for gender dysphoria in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑5).[61] In that context, Dr Morton agreed that she had relied upon the history provided by TM, and did not speak to, or have access to the records of, TM's general practitioner or a previous psychologist consulted by TM.[62] She later referred to other possible conditions and diagnoses considered by the multidisciplinary team in making the diagnosis.[63]
[60] Hearing ts 113 - 114 (30 September 2020).
[61] Exhibit 4.
[62] Hearing ts 115 - 117 (30 September 2020).
[63] Hearing ts 132 (30 September 2020).
Dr Morton agreed that the diagnosis of gender dysphoria can be controversial and that there are differing opinions about diagnosis and treatment.[64] She also agreed that adolescents and adults with gender dysphoria were at increased risk of suicide and suicidal ideation. She did not agree, however that the risk was the same irrespective of whether there was an affirming or non‑affirming environment. She said:[65]
I don't agree that the risk isn't higher if the person is also experiencing verbal abuse, feeling physically unsafe. I think those factors increase the risk. On the ward [TM] stated that he was being verbally abused and that he was being physically abused in his family home. I do believe that those factors would have increased the risk. I do believe being called [Comment 2], being told that he was [Comment 4] would have increased the risk, compared to a family who were not necessarily supportive of the diagnosis but not making use of that language.
[64] Hearing ts 119 (30 September 2020).
[65] Hearing ts 120 - 121 (30 September 2020).
In this context, Dr Morton described TM's presentation as unusual:[66]
We do see many children on the ward with gender dysphoria. We certainly see children who at the time of presenting are in conflict with their parents, and we see many children with self‑harm ideation, but it was unusual to see a child so clearly and consistently linking suicidal ideation with the behaviour of his parents towards him.
[66] Hearing ts 123 (30 September 2020).
Dr Morton was asked a number of questions as to whether there was independently verifiable evidence to support TM's report of a previous suicide attempt. She agreed that there were no witnesses and that she had not consulted a toxicologist in that regard.[67]
[67] Hearing ts 124 - 125 (30 September 2020).
Dr Morton was cross‑examined as to whether the appellants had been made aware of TM's gender dysphoria prior to his admission to the Hospital. She said:[68]
[TM] described talking with his parents about his gender identity in the home, and they didn't disagree that those conversations had occurred, particularly when I spoke to [TM's] mother, there was awareness prior to the admission. I don't believe that they were unaware of his gender dysphoria before the admission.
I put it to you that they were entirely unaware and that they told you of that. You disagree with that?--- I do.
[68] Hearing ts 127 (30 September 2020).
The cross‑examination later returned to the family's non‑acceptance of TM's experience. Dr Morton said:[69]
I think there's different levels of non‑acceptance. There's – many parents whose children present with gender dysphoria would struggle initially to understand and incorporate this understanding of their child. It's a different level when the child … believes they're being called [Comment 2] or [Comment 1] or [Comment 4].
[69] Hearing ts 130 ‑ 131 (30 September 2020).
Dr Morton was cross‑examined in relation to the appellants' comment to her that TM was a 'habitual liar': [70]
[The appellants'] comments might be accurate, mightn't they?---That he was a habitual liar?
Yes?---But that's a morally pejorative term. We wouldn't use that terminology as clinicians. What would be (indistinct) for on the ward is reliability, which is when someone is – when we – when someone is assessed to be a reliable historian, we would expect internal consistency and external consistency of the narrative that they provide. And that was completely clear throughout [TM's] admission. The description he gave of interactions at home was often consistent with his parents' description. He was completely consistent over time as well, over 34 days of his admission, with multiple clinicians, about marked details, about incidents of physical abuse, about things that had been said to him.
[70] Hearing ts 136 (30 September 2020).
In answer to questions from TM's counsel as to her discussions with the appellants in relation to TM's situation, Dr Morton said:[71]
They spoke about [TM] negatively and somewhat cynically. They were disbelieving of the things that he said, they were disbelieving of the clinical assessment that we had done because it was based on the things that he had said. And they impressed as somewhat suspicious of services. There was this consistent idea that, if they saw the gender dysphoria service and consented to that, that that would somehow lead to a sex change operation. It was – the – we attempted to give them information all the time about the nature of services but – but actually they – they were very concerned and distrustful.
[71] Hearing ts 145 (30 September 2020).
Finally, Dr Morton gave evidence that TM being cross‑examined in the presence of his parents as to his gender identity would be highly distressing. Dr Morton expressed concern about the risk that would pose in terms of TM's mental health.[72]
Dr Moore's evidence
[72] Hearing ts 152 (30 September 2020).
Dr Moore is a consultant child and adolescent psychiatrist. She is the consultant psychiatrist for the GDS at the Hospital. At the time of the proceedings, Dr Moore was TM's treating psychiatrist.
Dr Moore prepared three reports, dated 13 March 2020,[73] 12 August 2020[74] and 8 September 2020.[75]
[73] Exhibit F.
[74] Exhibit G.
[75] Exhibit H.
At the time of Dr Moore's first report, she had not consulted with TM. The report was provided in response to a question raised as to the potential impact of chest binding (a practice of flattening one's breast tissue) on a child who has spinal issues. Dr Moore's report concerns the general safety and risks associated with the practice. The report makes clear that Dr Moore had not met [TM] and that it would not be proper for her to make a report giving an opinion about a specific patient's circumstances without having seen the patient.[76]
[76] Exhibit F, page 2.
Dr Moore's report of 12 August 2020 is a comprehensive report setting out her diagnosis that TM has gender dysphoria. The report sets out all of the appointments and attendances by TM with doctors and allied health professionals at the Hospital.
In that report, Dr Moore identified relevant diagnostic criteria in relation to gender dysphoria. She said, for example that:[77]
[T]here are two current and valid international classification systems of health conditions. The WA Health Department codes according to the International Classification of Diseases version 10 (World Health Organisation). The relevant ICD‑10 diagnosis is Transsexualism F64.0. The other classification system for mental and behavioural conditions is the DSM‑5 (Diagnostic and Statistical Manual 5, American Psychiatric Association, 2013.) This is more recent. The relevant DSM‑5 diagnosis is Gender Dysphoria in Adolescents and Adults DSM‑5 302.85.
[77] Exhibit G, page 7.
Dr Moore described the approach to these criteria in the GDS:[78]
As the existing evidence base for gender affirming treatment in adolescents uses ICD‑10 Transsexualism in some studies, and DSM‑5 Gender Dysphoria in other studies, the GDS considers both diagnoses. One key difference is that the ICD‑10 Transsexualism requires a longer duration of 2 years or more of stable gender identity. The GDS takes a conservative view that six months of stable gender identity is insufficient for us to approve of gender affirming hormone treatment which has some permanent effects in adolescents. For access to testosterone treatment, we require at least a two year duration of stable gender identity, as well as being sixteen years old or older, and having capacity to consent to the treatment. [TM] meets criteria for both DSM‑5 Gender Dysphoria and ICD‑10 Transsexualism.
[78] Exhibit G, page 8.
In the diagnostic context, Dr Moore also said:[79]
In the mental health assessment of young people with gender concerns, it is proper to consider several possibilities for psychiatric differential diagnosis (considering any other possible cause of these presenting concerns.) The possibilities are: i) schizophrenia or other psychotic illness with a delusion of being of another gender; ii) body dysmorphic disorder; iii) borderline personality disorder with unstable identity; iv) healthy normal adolescent identity questioning which may change and evolve over time; v) traumatic life experience especially of sexual related trauma which may in some people lead to a repudiation of the birth sex, which may then change over time or may remain stable over time; vi) undue influence from another person or persons; vii) autism spectrum disorder with gender concerns as a temporary preoccupation rather than a long term consistent identity; viii) eating disorder.
[79] Exhibit G, page 3.
Dr Morton went on in the report to exclude these other explanations for TM's presentation. It is not necessary to set out each of those parts of the report. Relevantly, however, in the context of whether TM was subject to the undue influence of others, Dr Morton concluded:[80]
At first contact with PCH mental health services, in assessment with the duty psychiatric registrar in the Emergency Department on 8/11/2019, it was recorded in the notes 'Has 3 friends. No contacts or friends who are transgender. Don't have motivation to reach out.' This was consistent with my own first assessment on 28/4/2020. [TM] described feeling lonely and different for a long time, unaware that other people could be transgender, and aware that his feelings were rejected and disapproved of by his family. His presentation to hospital because of suicidal ideation and plan and intent was described by [TM] as being directly related to his family's non acceptance of his gender identity. He described his school environment also expressing strong disapproval and discouragement of diverse gender or sexuality. Hence, from the beginning, the indications were that [TM] was not emulating admired peers or unduly influenced by friends or peers in his gender identity development or gender expression. The clinical impression was of 'extreme isolation re transgender issues, no supports or contacts in the community'.
[80] Exhibit G, page 5.
Dr Moore's report of 12 August 2020 did not deal, to a significant degree, with whether TM would, or should, undergo any particular form of treatment, although Dr Moore did report that, in her opinion, TM was competent to make decisions about his health care, including the use of testosterone hormone treatment.[81]
[81] Exhibit G, page 2.
Potential treatments for TM were, however, the subject of Dr Moore's final report. It is clear from that report that TM had expressed a strong wish for testosterone treatment. It is also clear that Dr Moore, while recognising that it was not her decision, considered that such treatment would be beneficial to TM.
For example, Dr Moore reported:[82]
[TM] wishes very strongly to commence testosterone hormone treatment, and has felt this wish for a long time. If he is approved to commence testosterone treatment, I anticipate that he will experience an immediate sense of happiness, relief and validation.
…
I would anticipate that this improvement and relief of gender dysphoria will be partial (incomplete) because no available treatment can make him as if he had been born male; transgender people who have accessed medical gender affirming treatment often express that they still have some feelings of sadness and discomfort, because the treatment is incomplete and imperfect in its effects. I have discussed this reality with [TM], and I found that he has a realistic understanding of this, and a realistic expectation of the outcome of treatment, and my impression was that he has made a reasoned judgement that it is worth it to him to have testosterone treatment (the benefits outweigh the inconveniences, limitations and medical risks, in his estimation).
Over time, it is possible for a person to experience a change in their feelings and wishes, and regret having had testosterone treatment, and/or no longer identify as male and decide to live as female ('detransition' or 'retransition'). It is also possible to experience regret about reduction of fertility due to testosterone use. Regret would be expected to be associated with sadness, and a possible negative impact on mental health. The frequency with which this occurs (rate of regret and/or rate of detransition) is not known, as there is no high quality medical research which has consistently collected this data; the Gender Diversity Service, Perth Children's Hospital, has established a research project and is collecting this data, but no relevant results are yet available. There were no cases of regret identified in the two studies cited below. [TM] is aware that there is a risk of regret and/or being unhappy with the treatment effects or disappointed with the treatment effects, and that the magnitude of this risk is unknown; and he states that he accepts this risk.
[82] Exhibit H, page 2 - 3.
It should be noted that, in the course of her evidence, Dr Moore confirmed her understanding that the proceedings were not about whether TM was going to receive testosterone treatment.[83]
[83] Hearing ts 161 (30 September 2020).
Dr Moore's final report concluded:[84]
[TM] has described to me how seeing his parents or siblings, or reminders of his parents and siblings, or hearing their voices, causes him to feel fear, and physical symptoms of panic, which is highly distressing to him. Please take this in to account in the court proceedings if [TM] is present, as he may need help to feel safe (eg [TM] leaving the room before his family enter the room, and taking care that they do not meet in outside or waiting areas.)
[84] Exhibit H, page 4.
In cross‑examination, Dr Moore identified a variety of risks associated with the use of testosterone treatment. Those risks included heart and cardiovascular disorders, blood clotting, adverse liver function, salt and water retention, balding, skin problems (such as acne) and psychiatric effects (such as relapse of a pre‑existing psychotic disorder). Dr Moore confirmed that some of the effects of testosterone were irreversible.[85] She also agreed that there was certainly a possible reduction in fertility.[86]
[85] Hearing ts 4 - 5 (1 October 2020).
[86] Hearing ts 8 (1 October 2020).
Dr Moore confirmed that the GDS encourages all young people to access psychological support services outside the GDS.[87]
[87] Hearing ts 10 (1 October 2020).
In relation to Dr Moore's satisfaction that TM met the diagnostic criteria that symptoms had persisted for two years, she was asked in cross‑examination:[88]
In the case of [TM], how are you satisfied that symptoms have persisted for at least two years?---It's based largely on [TM's] own report of having felt male since he was eight and believing his report that he told his parents at eight, at which point they expressed disapproval; that, again, around aged 13 to 14 when his parents became aware that he was identifying as male and trying to express himself as males [sic] in some ways outside the home, that they were – again, expressed disapproval of that; and, also, then based on direct observation from [TM's] first presentation to Perth Children's Hospital, where at the first conversation with the emergency department psychiatry doctor he expressed gender dysphoria and the intent to commit suicide unless he could find some pathway to be able to live as male. It's reasonable, I think, to accept that a feeling and intention of such intensity is unlikely to arise overnight. There's now approximately 10 months of direct knowledge of adults outside of the family of [TM] expressing his male identity and his wishes to transition.
[88] Hearing ts 12 (1 October 2020).
Dr Moore agreed with the statement in the DSM‑5 that the 'area of sex and gender is highly controversial' and that different experts based on their clinical observations can come to different conclusions.[89]
[89] Hearing ts 15 (1 October 2020).
Dr Moore was cross‑examined in relation to the incidence of suicidality amongst people with gender dysphoria, which was undoubtedly very high. Dr Moore referred, for example, to a study of 14 to 25 year old transgender youths documenting that 48% had attempted suicide and 80% had deliberately self‑harmed. She said that it was hard to tell how much of that high incidence was related to internal gender dysphoria (the distress of that) and how much was related to external life experiences.[90]
[90] Hearing ts 17 - 18 (1 October 2020).
TM's counsel asked Dr Moore as to her view of TM as a historian:[91]
Do you hold the view that [TM] is a credible historian?---I do.
Have you seen or read anything that would cause you to think that he hasn't been truthful about his narrative of his experience with his parents and his family in respect to his gender identity?---I – I have been impressed with the consistency of his statements, both the statements that he has made to me and the documented statements of the same facts repeated or the same assertions repeatedly to other staff members in different settings, from the hospital ward as well as myself and my colleagues. I have not noted any worrying inconsistencies, and he – particularly since the first presentation was an emergency presentation in an extremist of distress, and I believe that he didn't know that his friend was going to call the ambulance and that the ambulance was going to turn up and take him to hospital. It seemed to me that he was making statements from the heart.
[91] Hearing ts 26 (1 October 2020).
Dr Moore was also asked for her view as to the effect upon TM's mental health were he compelled to give evidence. Dr Moore said that it would be very stressful and would be likely to cause extreme anxiety.[92]
WM's evidence
[92] Hearing ts 33 (1 October 2020).
WM, TM's mother, gave her evidence‑in‑chief by affidavit sworn on 24 September 2020.[93]
[93] Exhibit 6.
WM's affidavit recounts much of the family history, which is not necessary to recount here. It suffices to say that WM described, prior to 2015, a normal, happy family life. From late 2015 the family encountered difficulties with health problems on the part of a member of the family other than TM. Those difficulties added stress on the family.[94]
[94] Exhibit 6 [14] ‑ [15].
WM described TM becoming 'despondent', around 2018. She described finding a drawing by TM that she interpreted as suicide and taking TM to a clinical psychologist. After nine sessions with that psychologist, TM refused to go anymore.[95]
[95] Exhibit 6 [17].
WM described unusual behaviour on TM's part in early November 2019, including leaving home at night and disappearing from school.[96]
[96] Exhibit 6 [20] ‑ [21].
WM's affidavit thereafter gives a detailed account of the night of 7 November 2019, when TM was taken to the Hospital by police. She then set out, in detail, the appellants' interactions with the Department and the Hospital.
It is clear from WM's affidavit that she regarded the various agencies involved in TM's case as aimed at taking TM away from the appellants and alienating TM from the family.[97] Nevertheless, WM's affidavit does not directly address any of the matters said to have been reported by TM as to the appellants' treatment of him, including the derogatory comments reported by the other witnesses.
[97] Exhibit 6 [63].
WM was cross‑examined by counsel for the CEO in relation to the appellants' attempt to make an audio recording of the appellants meeting with Dr Morton.[98]
[98] Hearing ts 69, 75 (1 October 2020).
WM was also cross‑examined as to whether she accepted that TM was in fact suicidal, when he was admitted to the Hospital. She expressed some hesitancy in that regard ('I can't say, because I haven't spoken to him') and said 'I just have to accept the word of the medical people'. As to gender dysphoria, she agreed it was quite a new thought for her – she said that she didn't know if it existed or not but accepted that it seemed that it existed.[99]
[99] Hearing ts 76 - 77 (1 October 2020).
WM agreed that it was her position that TM was a 'habitual liar'. She was then asked the following questions in relation to TM's allegations:[100]
Specifically in respect to the comments made by [TM] to various professionals, when [TM] sees that you would put him down by telling him [Comment 5]. Is that a lie?---Yes.
When [TM] says that he was woken up by you and you were shaking at him and screaming at him, is that a lie?---Definitely.
…
And when he says that he – you screamed really loudly at him while he was curled up in a ball, crying, that's a lie?---Yes.
And is it a lie, to the best of your knowledge, that your husband told [TM] that he was [Comment 4]?---Yes, definitely.
And do you deny all of [TM's] allegations of physical abuse in respect to your sons?---Yes.
You deny that your husband has ever told [TM] that he is [Comment 2]?---Yes.
And you deny that your husband has ever told [TM] that he is [Comment 1]?---Yes.
[100] Hearing ts 80 - 81 (1 October 2020).
WM was also asked about her views of the Department:[101]
So you feel that the department have been negligent?---Yes, I do. And to answer your question, how will we go forward if there is not a protection order made, it's clearly – from my view, I think, as parents, we should still have our parental rights and make decisions for our child because with such protection order our rights will be taken away as parents. How this is going to work, I don't know. We have to work out – have certain things in place. I – I – it's very difficult. I don't know how it will work out. I can't predict that. I don't know the future. There's many things that can happen or cannot happen.
RM's evidence
[101] Hearing ts 88 (1 October 2020).
RM, TM's father, also gave his evidence‑in‑chief by two affidavits sworn on 3 December 2019[102] and 24 September 2020,[103] respectively.
[102] Exhibit 10.
[103] Exhibit 11.
As in the case of WM's affidavit, RM's affidavits recount much of the family history, in terms that are consistent with WM's evidence. RM also gives a detailed account of his interactions with the Hospital and the Department. RM's affidavits 'vehemently deny'[104] any form of physical or emotional abuse of TM and contain trenchant criticism of the staff of the Department, the Hospital and Legal Aid.
[104] Exhibit 10 [11].
It is clear from his evidence as a whole that RM regarded all of these agencies as 'bullying' the appellants to 'force them to consent to permanent and irreversible treatment' of TM.[105]
[105] Exhibit 11 [83].
RM's evidence was that, prior to TM's admission to the Hospital, the issue of TM's gender had never been mentioned to RM.[106]
[106] Exhibit 11 [29], [37].
In cross‑examination, in relation to the diagnoses of TM, RM was asked:[107]
Do you accept that [TM] was, in November 2019, when he was admitted to PCH, suicidal?---I don't know for sure but, if the specialists say so, I accept their word.
So do you – you've heard the specialists say pretty clearly in these proceedings that he was suicidal so do you now accept that?---I accept the word of the specialists.
Do you accept that gender dysphoria exists?---I accept that – that gender confusion with young people exists. I am not sure the dysphoria, what that means. I'm not a specialist. I only hear about this issue - - -
But do you accept - - -?--- - - - 9 November 2019.
[107] Hearing ts 229 (2 October 2020).
RM confirmed his view that the allegations he had heard in court were 'all lies'.[108]
CM's evidence
[108] Hearing ts 230 (2 October 2020).
CM is TM's brother. His evidence‑in‑chief was also given by an affidavit sworn on 24 September 2020.[109]
[109] Exhibit 12.
CM's affidavit also recounts that he was completely shocked by everything he had read in the reports from the Department. He stated that he was convinced that his family was a safe, constructive and healthy environment for any child to grow up in.[110]
[110] Exhibit 12 [12], [15].
CM clearly attributed TM's presentation and views to the influence of others.[111]
I feel like [TM] was unjustly ripped away from my family and that there is a combined effort by the Department of Child Protection and Perth Children's Hospital's agents to force a specific pathway for [TM] to take. In my view, this is grossly irresponsible and endangers my little sister I love and care for all of my siblings and in a desperate attempt to ascertain where or how this all started I began looking through sister's files. I found nothing on gender dysphoria, but I did learn how easily my sister's mind is influenced by other groups especially by the change of her artwork after reading [certain online material that TM had accessed].
After reading the report from the Department of Child Protection about the allegations made against me I was both shocked and saddened because I believe that my little sister was encouraged into fabricating allegations.
Being unwilling to allow my family to properly interact with [TM] is unethical to put it mildly.
[111] Exhibit 12 [16] - [19].
CM was cross‑examined in relation to whether he considered it appropriate to have accessed TM's computer files.
In relation to TM's admission to the Hospital, CM said that, while he initially thanked the friend of TM's who alerted the police to concerns as to TM's being suicidal, he said that, now, he did not believe it was genuine suicidality.[112]
[112] Hearing ts 263 (2 October 2020).
CM said that his view of TM's diagnosis of gender dysphoria was that he really didn't think it was gender dysphoria or transgenderism.[113] He agreed that it was his view that TM was a liar: 'when it suited [TM], [TM] would lie, yes, absolutely'.[114]
[113] Hearing ts 265 (2 October 2020).
[114] Hearing ts 266 (2 October 2020).
CM agreed that he had done martial arts in the past, but said he had not engaged in martial arts play fighting with TM, or been asked by TM to stop doing so.[115]
LM's evidence
[115] Hearing ts 267 (2 October 2020).
LM is TM's sister. Her evidence‑in‑chief was given by an affidavit sworn on 25 September 2020.[116]
[116] Exhibit 13.
LM also recounted much of the family history, describing a normal, happy family life. She described that from mid‑2017, TM communicated with her less and less. She said that they adopted a sign language to communicate how TM was feeling and that, while TM would not talk about 'her' feelings, it was their special way of communicating.[117]
[117] Exhibit 13 [31].
LM gave an account of why she had not met with TM following the approaches made by officers of the Department for her to do so:[118]
In May of 2020, I received a call from a random number who introduced themselves as the case worker for [TM]. I struggled to hear what the person was saying since the line was not very good. After asking the case worker to repeat what was said, the case worker spoke in a demeaning tone of voice. I could not talk very long as I was heading to work at that time. The interaction across the phone made me very uncomfortable and I decided not to make further contact with the case worker. Instead I messaged my sister on Facebook asking how she was doing.
In July of 2020 I received another call from a different case worker who introduced herself as Kelly Hunter. Ms Hunter wanted to organise to meetup between myself and my sister. I felt that an official meeting with the presence of a case workers would be very unnatural and an uncomfortable situation for myself and my sister.
[118] Exhibit 13 [36] ‑ [37].
LM confirmed in cross‑examination that she was aware that, out of all the family members, she was the only person that TM was open to seeing. She nevertheless maintained the view that it would not have been better to have some contact with TM, even if a case worker was present. She said that she did not consider it would be a natural interaction with her sibling.[119]
Mr Schneider's evidence
[119] Hearing ts 272 (2 October 2020).
Mr Schneider is a clinical psychologist in private practice. His curriculum vitae reveals extensive qualifications and experience in clinical psychology.[120]
[120] Exhibit 7.
Mr Schneider prepared a report based upon his consultations with the appellants in August and September 2020. The report annexes a summary paper entitled 'On Gender Dysphoria' prepared by Mr Schneider and a summary of the history provided to him by the appellants.
The history provided by the appellants to Mr Schneider is consistent with their own account of the events leading up to, and following, TM's hospitalisation. It concludes:[121]
[I]t seemed the gender dysphoria conversion therapists were trying to build a case to support [TM's] accusations against her parents and suggested she suffered gender dysphoria. [The appellants] met a few times with the gender diversity psychiatrist. They felt pressure to consent to starting the process of the Perth Children's Hospital for sex transitioning conversion therapy.
[121] Exhibit 8. Mr Schneider confirmed in cross-examination that history was based entirely on what he was told by the appellants (Hearing ts 191 - 192 (2 October 2020)).
Mr Schneider's paper, 'On Gender Dysphoria', outlines his professional approach working with clients with gender dysphoria. It is not a criticism of the paper to say that it does not address TM's particular circumstances. It is necessarily general in nature and concludes with the following:[122]
Sexual and gender development is a complex process. On the one hand, it is important to remain respectful and supportive of young people going through a difficult time. On the other hand, there is tremendous value in professional involvement that brings a certain amount of objectivity and factual information to the table.
Therapy should involve good psychological practice and principles. It should include a thorough assessment, sensitive to a person's developmental history, and their social circumstances. Therapy should include in its focus not just the child, but also its primary social support system, the family. The parental authority and responsibilities should be respected and upheld. Restoration of relationships should be a key goal. This cannot be achieved by pitting one person's 'rights' against another's. It is done by thorough exploration of the underlying problems, not simply arguing about what the solution should be. We need to avoid adversarial (legal) processes where we can, as this only exacerbates the stress on all parties.
[122] Exhibit 8.
Mr Schneider's report has as its principal focus the question of medical treatment for TM. It concludes:[123]
A key issue for [the appellants] is that [TM] is an adolescent minor, still in the process of developing to emotional maturity. They do not support [TM] making any decisions with potentially life changing implications until she is of sufficient emotional stability and maturity to do so. They feel strong responsibility, both legally and morally, to delay such decisions. They understand that frontal lobe changes during adolescence typically affect capacity for good judgment, and identity and sexual integration processes take time (the Gillick Competent principles notwithstanding).
Furthermore, [the appellants] quite reasonably believe that the situation is more complex than is reflected in the gender dysphoria diagnosis, and this complexity needs to be addressed. Certainly, I would agree with their concerns, given the history I have heard.
This is why they will not give their consent to proceed. I believe their position has been carefully thought through, and is not without support in the various studies and reports they have accessed. I will continue to provide them with psychological support through this difficult process.
[123] Exhibit 8.
In cross‑examination by TM's counsel, Mr Schneider said that he had never worked with young person with a diagnosis of gender dysphoria where he accepted that the diagnosis was correct. He accepted that gender dysphoria was a recognised condition but said that he had not worked with more than 10 young people. Gender dysphoria accounted for a 'very, very tiny amount' of his work.[124]
[124] Hearing ts 193 (2 October 2020).
It was made clear in cross‑examination that Mr Schneider was not aware of many of the matters reported by TM, including the appellants having made the various derogatory comments to TM, although he did say that he understood that a tension between the appellants' beliefs and [TM] identifying as a transsexual male 'was becoming an issue'.[125]
Dr Whitehall's evidence
[125] Hearing ts 195 - 196 (2 October 2020).
Dr Whitehall is a Professor of Paediatrics and Child Health in the School of Medicine at Western Sydney University. He provided a report dated 29 September 2020, which he adopted in his evidence‑in‑chief.[126]
[126] Exhibit 9.
Dr Whitehall reported that since 2016 he had written and spoken widely on childhood gender dysphoria. He has a long interest in the area, derived from his interest in the developing brain, although he does not treat transgender patients himself.[127] His contribution to the debate surrounding childhood gender dysphoria has been concentrated on non‑medical journals such as Quadrant magazine.[128]
[127] Hearing ts 205 - 206 (2 October 2020).
[128] Exhibit 9 [7].
In his report, Dr Whitehall refers to the marked increase in children and adolescents presenting to gender clinics and a shift from primarily 'male to female confusion in younger children, to female to male in young adolescents'.[129]
[129] Exhibit 9 [16].
In this context, Dr Whitehall summarised the differing views of 'proponents for hormonal affirmation' and 'proponents of traditional family and individual psychology'. In relation to a number of the arguments made by proponents of affirmation, Dr Whitehall presented a difference of view. It is a fair description of his report as a whole, that Dr Whitehall expresses a preference for 'patient, attentive, compassionate counselling' for gender confused children.[130]
[130] Exhibit 9 [19] ‑ [25].
In relation to TM specifically, Dr Whitehall confirmed that not having seen or talked to TM, he was 'unable to address any of the particularities of his situation'. He expressed deep sympathy for TM's distress and empathised with his carers, having no doubt as to their commitment to bring about the best solution for TM's distress.[131] He did, nevertheless, wonder 'at the certitude of exclusion of what is now described pejoratively (in some circles) as the effect of "social contagion".'[132]
[131] Exhibit 9 [27].
[132] Exhibit 9 [28].
In that regard, Dr Whitehall made a number of comments in relation to the potential effects of treatment, which he described 'as pathway of experimentation' which he said would most likely result in surgery. The uncertainty of the potential outcomes, in Dr Whitehall's opinion 'favour[ed] compassionate, non‑coercive counselling to fathom the cause of [TM's] distress and its various influences'.[133]
[133] Exhibit 9 [35] ‑ [36].
In cross‑examination, Dr Whitehall expressed scepticism as to the reality of gender dysphoria, as a medical condition:[134]
And you've expressed the view that gender dysphoria is a fad?---I – well, I have used that word. I think it's an intellectual, it's a psychological epidemic, yes.
Right?---I think it is fanned by an uncritical media. It is given direction by websites. And, yes, I think it's predominantly a – in explaining the marked increase in the prevalence of young females in particular complaining of gender dysphoria, I say you cannot negate the issue of it being a psychological contagion.
[134] Hearing ts 207 (2 October 2020).
A number of questions were put to Dr Whitehall in cross‑examination in relation to his not having treated a transgender child.[135] Dr Whitehall was specifically asked:[136]
If you had come across a child who had described being screamed and yelled at and called [Comment 2], told that they were [Comment 4], that they were [Comment 2] and [Comment 1], where they describe being physically assaulted by siblings, you would agree with me that that conduct would be classified, if correct, as psychologically and physically abusive?---Yes but listen, I've been told a lot of stories by a lot of children and you – and I don't know the truth. And you have – and therefore to institute formal discussions and interviews with the parents to try and work out whether this is true.
[135] Hearing ts 211 ‑ 212 (2 October 2020).
[136] Hearing ts 211 (2 October 2020).
In re‑examination, Dr Whitehall clarified his evidence as to whether he accepted gender dysphoria was a legitimate medical condition and diagnosis:[137]
You were asked about whether you accept that gender dysphoria is a legitimate diagnosis as it appears in the DSM‑5. What's your answer to that?---Yes. Well, I think it does – I mean, the fact that there – it is – this problem of confusion and unhappiness about whether you're a boy or a girl or not is taking off as everyone says and there's almost exponential increase. Now, the question is why? There is no biological evidence for it. And I was just looking in that article here - - -
But – but, really, I think you might be digressing from my question. My question is it a legitimate diagnosis under the DSM‑5; do you accept that?---Yes, I do accept that.
The learned magistrate's reasons for decision
[137] Hearing ts 222 (2 October 2020).
The learned magistrate delivered her reasons for decision orally on 23 October 2020.
Preliminary matters
Her Honour commenced her reasons by identifying the parties and their respective positions on the application. She noted that TM, through his separate representative, consented to the order sought.[138]
[138] Reasons ts 3 (23 October 2020).
The learned magistrate comprehensively set out the provisions of the Act relevant to the application, including s 7, s 8, s 9, s 10, s 28, s 45 and s 46.[139]
[139] Reasons ts 4 (23 October 2020).
In relation to the standard of proof, her Honour noted that the applicable standard was the balance of probabilities. In that context, however, and consistent with the approach referred to in Briginshaw v Briginshaw,[140] her Honour said:[141]
[H]aving regard to the seriousness of the factual allegations in cases such as these, the application of that standard will require evidence of a relatively high persuasive force, leading me to be satisfied to a relatively high degree of the facts upon which an order should be made.
The seriousness of the allegations and the profound consequences likely to follow from a protection order requires that I should not make a protection order unless the evidence is convincing and leads me to a firm degree of satisfaction of the need to make. It is necessary to proceed with great care and caution.
[140] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw v Briginshaw).
[141] Reasons ts 8 - 9 (23 October 2020). See also, in relation to the making of inferences, Reasons ts 9 (last paragraph).
The only remaining matter of substance raised by the appellants in this context was the fact that the learned magistrate did not make a finding that TM had suffered physical abuse. The appellants submitted, in effect, that it was inconsistent for her Honour to conclude that she was satisfied that the verbal abuse had occurred, when she had not been so satisfied in relation to physical abuse.[225]
[225] Appeal ts 32.
The two findings are readily able to be reconciled. In particular there were a number of significant differences between the allegations of physical abuse and the allegations of emotional abuse.
First, while an allegation of physical abuse might arguably (in some circumstances) be regarded as more serious, in the context of the evidence at the hearing there was a good deal less attention given to it. The emphasis at the hearing was clearly on emotional abuse (as reflected in the CEO's opening).[226]
[226] See [38] above.
Secondly, the allegations of physical abuse principally related to a different person. The 'punching' reported by TM was said to have come from CM, not from the appellants.
Thirdly, the evidence of TM reporting verbal and emotional abuse was more sustained and consistent over time. It was also reflected in TM's letter, which corroborated the oral reports recorded by others.
Fourthly, in prescinding from making a finding of physical abuse, her Honour said that she was 'unable to make findings about whether or not specific instances of physical abuse occurred'.[227] It is clear that, in relation to the issue of emotional abuse, her Honour was concerned with a more pervasive 'experience within the family home'.[228]
[227] See Reasons ts 25 (23 October 2020).
[228] See Reasons ts 22 (23 October 2020).
In those circumstances it is readily explicable that her Honour, adopting the careful and cautious approach that she identified at the commencement of the reasons, would only make findings in relation to those facts for which she felt an 'actual persuasion'.[229] The fact that she was satisfied, to the required standard, in relation to some, but not other, forms of abuse does not bespeak error.
[229] Briginshaw v Briginshaw, 361 (Dixon J).
Ground 4 and 5 are without merit. Leave to appeal should be refused on each ground.
Ground 6
Ground 6 contends:
The Learned Magistrate erred in law in finding that [TM] had suffered neglect by the Appellants, in that the Learned Magistrate:
a.failed to provide adequate reasons and failed to disclose the actual path of reasoning that led to this finding, thereby giving rise to a miscarriage of justice;
b.based the finding of neglect upon [TM's] refusal to return home and/or accept the Appellants' beliefs, rather than upon the Appellants' conduct;
c.considered that the aforesaid difference of beliefs constituted neglect;
d.considered that the aforesaid difference of beliefs constituted neglect in circumstances where such beliefs were reasonably based.
Ground 6 makes a number of complaints in relation to what the appellants submit was the learned magistrate's 'finding that [TM] had suffered neglect' by the appellants. The complaints are in similar terms to those made in relation to the finding of emotional abuse in ground 5.
Once again, the ground does not accurately describe the finding that the learned magistrate actually made.
Insofar as ground 6 alleges that the learned magistrate found that the appellants' beliefs constituted neglect, it simply seeks to challenge a finding that her Honour did not make. For the reasons I have given in the context of grounds 4 and 5, ground 6 is, to that extent, wholly misconceived.
Indeed, insofar as 'neglect' is an independent 'trigger' (under s 28(2)(c)(v) of the Act) for concluding that a child is in need of protection, it is a reasonable construction of the learned magistrate's reasons that she did not find that TM 'has suffered, or is likely to suffer, harm as a result of neglect'.
To repeat her Honour's ultimate finding in this respect:[230]
I find that it is unlikely that [TM] would agree to, accept or attend any of the services his parents would wish to provide for him. I find that there is, on that basis, a possibility that [TM] may suffer neglect if his needs were not met in an appropriate and sensitive manner, and I make that finding on the balance of probabilities.
[230] See [190] above.
The appellants submitted that this finding, which was expressed in terms of 'possibility', rather than 'probability', falls short of a finding under s 28(2)(c)(v) of the Act.
In response, the CEO submitted that, in this part of the reasons, the reference to 'possibility' may be a mere infelicity of language and should be construed as a 'likelihood' of neglect.[231] While I accept that this is one possible construction of her Honour's reasons, I will deal with the reasons in this regard in their literal sense; that is, as the appellants submit that they should be construed.
[231] First Respondent's Outline of Submissions [78] ‑ [79].
So understood, I accept that the finding set out at [300] above does fall short of a finding of neglect under s 28(2)(c)(v) of the Act.
That does not, however, mean that the finding was in error. It simply means that past 'neglect' or the likelihood of future 'neglect' could not (and did not) independently support the ultimate conclusion that TM was in need of protection. For the purposes of the definition of 'in need of protection' in the present case, her Honour needed only to be satisfied as to one of the limbs in s 28(2)(c)(i), (iii) or (v). In that regard, given that her Honour found that TM had experienced emotional abuse (under s 28(2)(c)(iii) of the Act), a finding under s 28(2)(c)(v) was not necessary in order for her Honour to conclude that TM was in need of protection – as long as, of course, the other element of the definition was satisfied, namely that the appellants were unlikely or unable to protect TM from harm.
Nor, on the other hand, were the findings made by the learned magistrate in the context of her discussion of the issue of 'neglect' irrelevant. The positive findings made by her Honour in that context, for example as to the fact that the appellants 'have not been able to understand [TM's] needs' and that it was 'unlikely that [TM] would agree to, accept or attend any of the services his parents would wish to provide for him',[232] were clearly relevant to the likelihood that the appellants would protect TM from further harm, or their ability to do so.
[232] See [190] above.
In the context of the findings that the learned magistrate did make in relation to the issue of 'neglect' the appellants also submitted that the learned magistrate did not give adequate reasons for those findings, so as to give rise to a miscarriage of justice.
I cannot accept that submission.
First, for the reasons I have just given, even if the learned magistrate's reasons in relation to 'neglect' were deficient, it would not necessarily amount to a miscarriage of justice if, as I have found, the learned magistrate's finding that TM had suffered emotional abuse was not in error. That is, any deficiency in her Honour's reasons in respect to the discrete issue of 'neglect' would not necessarily affect the ultimate conclusion reached by her Honour as to the need for a protection order.
Secondly, and in any event, her Honour's reasons in relation to the issue of neglect were more than adequate.
In that regard, her Honour's reasons reveal the following logical path of reasoning:
(a)TM could not be forced 'to see a counsellor or a doctor whom he did not wish to see';
(b)the appellants 'have not been able to understand TM's needs'; and
(c)it was 'unlikely that [TM] would agree to, accept, or attend any of the services [the appellants] would wish to provide for him'.
That path of reasoning leads inexorably to the potential that, if returned to the appellants' care, TM would not have access to services that would address his distress and suicidality.
That path of reasoning is clear, coherent and adequately explains the basis for her Honour's conclusions on this issue.
Ground 6 is without merit. Leave to appeal should be refused.
Grounds 7 and 8
Ground 7 contends:
The Learned Magistrate erred in law and in fact in finding that the Appellants had not protected and were unlikely to protect [TM] from harm, when such findings were not reasonably open on the evidence.
Ground 8 contends:
The Learned Magistrate erred in fact and in law in finding that the Appellants had not and were unlikely to protect [TM] from harm, in that the Learned Magistrate:
a.failed to provide adequate reasons and failed to disclose the actual path of reasoning that led to this finding, thereby giving rise to a miscarriage of justice.
b.based such finding on the Appellants' beliefs regarding the diagnosis of and treatment of gender dysphoria, when the Learned Magistrate considered she was not tasked to make findings on diagnosis or treatment;
c.failed to find that the diagnosis of and treatment of gender dysphoria was and was reasonably capable of being the subject of difference of opinion;
d.made such findings in circumstances where the Appellants were given no or no reasonable opportunity to present contrary medical evidence.
Grounds 7 and 8 both challenge the learned magistrate's finding that the appellants had not protected and were unlikely, or unable, to protect TM from harm. The appellants addressed the grounds together, as will I.
As with a number of the other grounds I have already dealt with, ground 8, in a number of respects, ignores the findings that the learned magistrate actually made and suggests that her Honour's finding as to the potential for harm to TM if returned to the appellants was based merely on the appellants' 'beliefs'.
It clearly was not.
As ground 8 also challenges the adequacy of the learned magistrate's reasons in relation to that question, it is necessary to (briefly) summarise them again.
In doing so, I would observe at the outset that, even for reasons that, as a whole, are logically structured and clearly expressed, the learned magistrate's reasons in relation to TM's need for protection from future harm stand out as being of a particularly high standard.
This part of the reasons (in which I include her Honour's consideration of the 'no order principle') run for over seven pages of the transcript. Any summary of the reasons, including what follows, could not do justice to their quality of expression.
Important, for understanding the learned magistrate's reasons in this respect, is the fact that her Honour's focus, in relation to the risk of 'harm' is that the harm that TM had suffered was suicidality: TM's risk of suicide. The protection of TM from harm in the future was protection from that harm: suicidality.
At the hearing of the appeal, counsel for the appellant accepted the proposition that suicidal ideation was 'harm' within the meaning of the Act.[233] That proposition is clearly correct.
[233] Appeal ts 40.
Turning then to the learned magistrate's reasons as to the risk of harm.
Her Honour commenced by reference to the finding that the appellants had been unwilling to believe that TM holds genuine and real beliefs, views and feelings which should be respected.[234]
[234] See [192] above.
Importantly, her Honour then proceeded to find that the appellants remained doubtful about TM's previous suicide attempt and referred to their failure to acknowledge or really believe the seriousness of TM's suicidal ideation at the time of his admission to the Hospital and the cause of that suicidality. This was indicative of their failure to 'give due weight to the very real risk of [TM's] potential continuing risk of suicide'.[235]
[235] See [193] above.
From that, her Honour concluded that it was difficult to envisage that the appellants would take TM's risk of suicide seriously. The learned magistrate contrasted the appellants' approach to TM's risk of suicide with how the Department had reacted to his risk of self‑harm on the occasion that TM was admitted to Sir Charles Gairdner Hospital.[236]
[236] See [195] above.
Her Honour then in this context made the critical findings, reproduced in full at [197] above. Significantly, and consistent with how I have construed the learned magistrate's reasons for decision at [300] to [303] above, her Honour's focus in those findings was on the risk of suicide associated with the verbal and emotional abuse TM had experienced. The specific and pressing potential for harm identified by her Honour was the risk of suicidal ideation if TM were forced to rely upon the appellants for emotional and psychological support.
These findings are also reflected in the learned magistrate's findings in relation to the 'no order principle', reproduced at [200] above. Those findings are all about TM's risk of suicide and the steps that would mitigate that risk. While those findings inevitably refer to, and rely upon, the link between TM's suicidality and his parents response to his expression of his gender identity (including the emotional abuse), those findings are not findings that the appellants' beliefs were themselves emotional abuse.
These reasons, which I have described in summary form, amply meet all of the purposes and functions of reasons for decision.
As to whether those findings were 'reasonably open on the evidence', once it is recognised that it was open to her Honour to accept as true what TM had reported in relation to the response of his parents to his expressed gender identity, it is clear that her Honour's ultimate conclusion was reasonably open on the evidence.
In particular, the learned magistrate's finding that the appellants failed to acknowledge or really believe the seriousness of TM's suicidal ideation or give due weight to TM's very real future risk of suicide, was a compelling basis for the conclusion that the appellants were unlikely, or would be unable, to protect TM from the potential for further suicidal ideation. To state the obvious, it is difficult to see how a parent who is unable to acknowledge or appreciate the seriousness of their child's risk of suicide, would be able to respond appropriately to that risk.
Again, the learned magistrate saw and heard the appellants' evidence. Her Honour was in the best position to reach findings as to whether the appellants did acknowledge the seriousness of TM's suicidality or give due weight to the future risk of suicide. There is nothing glaringly improbable, or contrary to compelling inferences, in her Honour's findings in that regard. No error has been demonstrated. I would not disturb the findings.
Grounds 7 and 8 are without merit. Leave to appeal should be refused.
Ground 9
Ground 9 contends:[237]
The Learned Magistrate erred in law and in fact in finding that [TM] was or had been or remained suicidal, and that such suicidal ideation was caused by the Appellants when such finding was not reasonably open on the evidence.
[237] Appeal ts 45.
As foreshadowed in their outline of submissions, ground 9 was amended at the hearing of the appeal to add the words 'and that such suicidal ideation was caused by the Appellants'.[238]
[238] Appellants' Outline of Submissions [11.1]; Appeal ts 45.
Notwithstanding the addition of these words, it was still submitted in the appellants' outline of submissions that the learned magistrate's finding that TM was in fact suicidal at the time of admission to the Hospital was not open. The submissions for example said:[239]
11.4. No other corroborative evidence was offered in relation to this or the later alleged planned suicide attempt.
…
11.7. As such, the findings of the existence of suicidal ideation, and that such was cause [sic] by the Appellants, was not reasonable [sic] open on the evidence. (emphasis added)
[239] Appellants' Outline of Submissions [11.4], [11.7].
The appellants' counsel did not refer to these paragraphs in oral submissions. Nor, however, were they withdrawn. I have therefore proceeded upon the basis that the appellants continue to challenge the finding that TM in fact had suicidal ideation (i.e. that TM was suicidal), on the basis that it was not reasonably open on the evidence.
It is, with respect, a remarkable submission.
In finding that TM had a genuine plan to commit suicide and was actively suicidal when admitted to the Hospital,[240] the learned magistrate relied upon the evidence of Dr Morton, who she was satisfied was an eminently qualified child and adolescent psychiatrist and who had treated TM as an inpatient at the Hospital for 34 days. Dr Morton's qualifications were not challenged.[241] Dr Morton gave expert opinion that TM was suicidal, and gave details of TM's plan to commit suicide in the course of her evidence.[242] While Dr Morton was cross‑examined in relation to a previous suicide attempt (the year before), her opinion that TM was suicidal when admitted to the Hospital was not expressly challenged. There was no evidence to the effect that Dr Morton's opinion in that regard was wrong.
[240] See [175] above.
[241] See [168] above.
[242] Hearing ts 96 (30 September 2020).
What the appellants' submissions intended by the submission that no 'corroborative evidence was offered in relation to … the later alleged planned suicide attempt' is not clear. Save for TM's school friend having alerted the police to TM's plan and the opinion of his psychiatrist following his 34 day admission to the Hospital, it is not apparent what further corroborative evidence might have been offered in relation to TM's suicidality.
Not only was it reasonably open on the evidence to find that TM was suicidal, given the evidence of Dr Morton, the conclusion that TM was suicidal when he was admitted to the Hospital was, in my view, inevitable. It is difficult to see how, in the absence of a challenge to Dr Morton's evidence in that regard, her Honour could have come to any other conclusion.
Whether or not there was 'corroboration' for what Dr Morton accepted was a previous suicide attempt in 2018, was neither here nor there. Dr Whitehall gave evidence as to what he would have expected to observe in terms of the patient's symptoms in such a case, but that evidence (which was put to Dr Morton in cross-examination) clearly did not affect Dr Morton's assessment of the seriousness of TM's risk of suicide, a matter expressly recognised by her Honour.[243]
[243] See [174] above.
The appellants' challenge to the finding that TM had in the past been suicidal must fail.
The other aspect of the challenge made by ground 9 is that it was not reasonably open on the evidence to find that the appellants 'caused' TM's suicidality. In that regard the appellants pointed to the evidence that gender dysphoria itself is a diagnosis associated with an increased risk of suicidal ideation.[244]
[244] Appellants' Outline of Submissions [11.6].
Again, however, the learned magistrate did not find that the appellants were the sole 'cause' of TM's suicidality. What her Honour found was that TM's suicidality was, to a significant extent, a result of the effect on him of the verbal and emotional abuse that he had experienced. Those effects, it is clear from her Honour's reasons, included all aspects of the way that the appellants had responded to TM: their failure to acknowledge his feelings, speaking about him in a derogatory manner and refusing to believe him.
The fact that there may be other contributing causes to TM's distress, including his gender dysphoria per se, did not prevent the finding made by the learned magistrate that TM's suicidal ideation would recur or increase if he was returned to the appellants and had to rely upon them for emotional and psychological support.
The expert evidence before her Honour supported a finding that TM's risk of suicide was likely to be increased in the care of his parents and that they had contributed to his suicidal ideation as a result of their treatment of him.[245] The learned magistrate was entitled to accept that evidence and she has not been shown to be in error in doing so.
[245] See [83] above; also Hearing ts 98, 129, 134 (30 September 2020).
Ground 9 is without merit. Leave to appeal should be refused.
Ground 10
Ground 10 contends:
The Learned Magistrate erred in law in finding that the Appellants had not protected and were unlikely to protect [TM] from harm by having brought a statutorily authorised application for [TM] to give evidence in Court.
The ground relates to her Honour having drawn the inference that, in making the application to have TM compelled to give evidence, the appellants' desire to compel TM to give evidence outweighed any concerns they may have had about the effect of that upon him.[246]
[246] See [196] above.
It overstates the effect of the learned magistrate's reasons to contend (as ground 10 does) that her Honour found that the appellants were unlikely to protect TM from harm by having made the application to compel him to give evidence. The better view of her Honour's reasons is that she regarded the fact that the appellants' desire to have TM called outweighed their concerns for him as only one of a number of considerations relevant to the ultimate issue as to whether the appellants were unlikely or unable to protect TM from harm.
The appellants' written submissions ultimately adopted such a construction of the reasons. They submitted that the inference drawn by her Honour was an irrelevant consideration and that it was an error of law to draw such an inference from making use of 'the legal process during trial'.[247]
[247] Appellants Outline of Submissions [12.5] ‑ [12.6].
There is no merit in this ground.
The drawing of an inference is a question of fact in light of all of the surrounding facts and circumstances. Unless the surrounding facts and circumstances are incapable of sustaining a particular inference, no error of law is involved.
The inference that is the subject of this ground was drawn in the context in which the appellants' application was made after, and in full knowledge of, the court having received evidence that TM would find giving evidence distressing and stressful and that it would be likely to cause him extreme anxiety.[248] In those circumstances, as a matter of fact, the inference drawn by the learned magistrate was clearly open to her Honour. Indeed, it is the most natural inference that arose in all of the circumstances.
[248] See [71], [113] above.
That inference was not precluded, as a matter of law, by reason of the fact that the appellants were authorised and legally entitled to make the application under the Act. Litigants are, of course, entitled to make use of court processes and to make applications such as the appellants made in this case. That does not, however, prevent a court, in an appropriate case, from drawing inferences as to the attitude of a litigant based on the manner in which the litigant has conducted its case. In the criminal jurisdiction, for example, the conduct of an accused person's case, including the cross‑examination of witnesses, might legitimately inform the court's assessment of whether, if convicted, the accused has demonstrated genuine remorse or insight. The present case (and the inference drawn by the learned magistrate) was, of course, different. Nevertheless, as a matter of principle there is no legal reason why her Honour could not draw the inference that she did, simply because the appellants were entitled to make the application that they did.
Ground 10 is without merit. I would refuse leave to appeal.
Ground 12
Ground 12 contends:
The Learned Magistrate erred in law in making an order for a protection order (until 18) in relation to [TM] when:
a.such order was not sought on the application;
b.the Appellants were given no notice of or opportunity to make submissions in relation to such order, constituting a denial of procedural fairness;
c.the Learned Magistrate failed to consider the alternative of a protection order (supervision);
d.such order was predicated upon a diagnosis of gender dysphoria and [TM's] treatment choice in relation to the diagnosis of gender dysphoria.
Ground 12 challenges the type of protection order made by the learned magistrate.
As noted above, while the application sought a protection order (time limited) for 2 years, by the time of the making of the order TM was over 16 years of age. It would not have been permissible under the Act to make a protection order (time limited) for 2 years, as such an order must end before the child is 18 years of age.[249] In those circumstances the learned magistrate made a protection order (until 18) 'just to make sure that we're not having to calculate days and dates and [TM's] left without a day'.[250]
[249] Act, s 55.
[250] Reasons ts 38 (23 October 2020).
It was clearly open to her Honour to make a protection order (until 18), notwithstanding that the application sought a protection order (time limited). Section 46 of the Act expressly so provides. There was no practical difference between the order that her Honour in fact made and the order that had been sought in the application.
In that regard, it has previously been held by this Court that, as a matter of natural justice, where the Children's Court is considering making an order which is not sought in the application that is then being determined and which is less favourable to a party's interests than the order being sought, the party should be so advised and afforded an opportunity to be heard.[251]
[251] AB v Chief Executive Officer, Department for Child Protection [2014] WASC 87 [65] (Jenkins J).
It was accepted by counsel for the appellant at the hearing of the appeal that the present case was not such a case. At no point did the learned magistrate propose to make an order that was less favourable to the appellants' interests than the order sought in the application.[252]
[252] Appeal ts 44.
The remaining submission in relation to this ground was that her Honour erred in failing to give consideration to making a less restrictive order than the one actually sought in the application and, in particular, whether her Honour should have considered making a protection order (supervision).
It may be accepted, in principle, that there may be cases in which the nature of the evidence is such that, notwithstanding that the application is for a protection order (time limited) or a protection order (until 18), the court is required to give express consideration to a protection order (supervision).
However, where (as in the present case) the entire proceedings are conducted on the basis that what is sought is an order giving the CEO parental responsibility for the child, and the court's conclusion is that it is in the child's best interests 'that he [or she] will have the full support of the Department on a continuing basis for as long as possible',[253] there is little scope for a protection order that does not give parental responsibility for the child to the CEO. In those circumstances, there is no requirement for the court to mechanically address each of the different forms of protection order.
[253] See [204] above.
In the present case, based on the findings made by the learned magistrate the protection order that her Honour made was not only open to her, it was clearly the most appropriate order in the circumstances.
No error has been demonstrated in the learned magistrate having made a protection order (until 18).
For completeness I would observe that the final paragraph of ground 12 (ground 12(d)) suffers from the misconception as to the learned magistrate's reasons that I rejected in the context of ground 1. I need not repeat what I have already said in that regard.
Ground 12 is without merit. Leave to appeal should be refused.
Conclusion
For the above reasons, I am not satisfied that any of the grounds of appeal have sufficient prospects of success to warrant the grant of leave.
I would refuse leave to appeal on each ground.
The appeal must be dismissed.
A final observation
TM will, in the not too distant future, turn 18 years of age and will be legally an adult. The protection order made by the learned magistrate will then expire and will no longer have any lawful effect on TM, or anyone else. Nor, by that time, will the findings made by her Honour that led to the making of the protection order have any remaining legal significance.
Many of those findings, which it has been necessary to record in these reasons, relate to events in the lives of TM and the appellants that have no doubt been distressing to all of them.
At some time in the future TM may choose to read these reasons. If that occurs, it is important that I conclude them by recording that, in addition to making the other findings that she did, the learned magistrate made an express finding that there was no doubt that the appellants love their children, including TM, and that they want what is best for them.
I mean no disrespect to the learned magistrate's careful and considered reasons in this case (indeed quite the opposite) when I say that, in the months and years to come, it is to be hoped that this last finding of her Honour's is the only one that endures. And that, in the final result, it is the only one that matters.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
28 SEPTEMBER 2021
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