The Court process in gender dysphoria cases and cases to date

This article is intended to be read after the article “Gender dysphoria in family law matters”, which can be found here.

Helpfully, the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (FCFCOA Rules) set out the process and evidence required for the Federal Circuit and Family Court of Australia (the Court) to decide a gender dysphoria case.

It is important to emphasise that, as with all parenting matters, a child’s best interests are paramount; and the Court will view the matter through the best interests’ framework set out in the Family Law Act 1975 (Cth) (the Act).

The Court process

When is a Court application required?

An application to the Court for orders to permit Stage 1 or 2 treatment is only required when there is a dispute about:

1. A diagnosis of gender dysphoria; or
2. The proposed treatment; or
3. The Gillick competence of a child.

Who can make an application?

1. a parent;
2. a person who has a parenting order in relation to the child;
3. the child;
4. the Independent Children’s Lawyer; and/or
5.  any other person concerned with the care, welfare and development of the child.

What is the Court pathway before an application is made and after?

Parties must adhere to the Court’s pre-action procedures applicable to parenting matters – they must first attempt to resolve the dispute with a Family Dispute Resolution practitioner.

The pre-action procedures may be dispensed with where a party contends urgent circumstances, and this is accepted by the Court.

What evidence does the Court need to hear?

The Court must hear evidence from an expert witness that is a medical, psychological or other relevant and suitably qualified practitioner. The exact kind of evidence the Court wants to hear is set out in at Rule 1.11(5) of the FCFCOA Rules and bears repeating in full:

1. the exact nature and purpose of the proposed medical procedure;
2. the particular condition of the child for which the procedure is required;
3. the likely long-term physical, social and psychological effects on the child:

3.1  if the procedure is carried out; and
3.2  if the procedure is not carried out;

4. the nature and degree of any risk to the child from the procedure;
5. if alternative and less invasive treatment is available—the reason the procedure is recommended instead of the alternative treatments;
6. that the procedure is necessary for the welfare of the child;
7. if the child is capable of making an informed decision about the procedure—whether the child agrees to the procedure;
8. if the child is incapable of making an informed decision about the procedure—that the child:
9. is currently incapable of making an informed decision; and
10. is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;
11. whether the child’s parents or carer agree to the procedure.

Lastly, it is important to note that a gender dysphoria application and supporting documents must be served on the prescribed child welfare authority (i.e. Child Protection).

Child Protection will then consider whether they need to be involved – in support of or in opposition to the applicant. This is similar to the notification provided to Child Protection when any parenting orders are sought.

Case Review

The discussion below is intended to provide a snapshot of where the law case is now and how it got there.

What is clear from reading these cases – Re Kelvin in particular – is that developments in medical science are such that earlier decisions may be more easily distinguished and different decisions could be made.

It is vital to remember that all cases turn on their own facts as each child and family is uniquely different. The Court is also made up of different judges at different times so the weight given to the evidence before it will invariably change with each judge.

Re Marion (1992) (Department of Health and Community Services (NT) v JWB and SMB (1992) 106 ALR 385)

The parents of a 14 year old girl sought to approve a hysterectomy and an ovariectomy (sterilisation) for their child as she suffered from severe intellectual disabilities and was unable to care for herself.

The parents applied to the (then) Family Court of Australia seeking the Court’s authorisation for the procedures or a declaration that the parents had the right to authorise those procedures. The Department of Health and Community for the Northern Territory (ie Child Protection) argued that the parents’ authorisation alone was not enough to proceed with the procedures and that an application to the Court was mandatory.

The matter made its way up to the High Court where the Court distinguished between “therapeutic” and “non-therapeutic” procedures. The Court held that non-therapeutic medical procedures required the Court’s approval – particularly those which in combination:

1. require invasive, irreversible and major surgery;
2. involve a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about the best interests of a child who cannot consent; and
3. where the consequences of a wrong decision are particularly grave.

The High Court held that the Family Court of Australia has jurisdiction to authorise the performance of a special medical procedure if it is in the best interests of the child in circumstances where the child is not Gillick competent. The High Court approved the UK originated concept of “Gillick competence” and defined it when a child is of “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”

The case has been applied to gender dysphoria cases and non-therapeutic medical procedures which have health consequences for the child (see: Re W (1997) 136 FLR 421, where a procedure for a 10-year old boy to donate bone marrow to their aunt required the Court’s approval).

Re Alex (2004) (Re Alex (Hormonal Treatment for Gender Dysphoria) (2004) 31 Fam LR 503)

Re Alex was the first case to consider the issues of consent and gender dysphoria treatments specifically.

Alex was 10 years old and had an unfortunate upbringing – his father had passed away, he was estranged from his mother and in the care of Child Protection. Alex received a medical treatment plan involving Stage 1 treatment (puberty blockers) to commence on his 16th birthday before commencing Stage 2 (gender affirming ).

Child Protection applied to the Court seeking a declaration that Child Protection was authorised to consent to Stage 1 and 2 treatment on Alex’s behalf. Alex’s mother refused to be involved with Alex and did not participate in the proceedings.

The Court found that the proposed treatments were ‘special medical procedures’ (a non-therapeutic procedure that were invasive, permanent and irreversible; and not for the purpose of curing a malfunction or disease. The Court held that ‘therapeutic’ was confined to treating physiological conditions (disease or organ malfunction) which did not fall for within the hormone treatment for Alex. The Court also expressed concerns about a young person’s capacity to give consent to gender dysphoria treatment.

Ultimately, the Court made orders authorising Child Protection to consent to Alex’s treatment because the evidence given supported the intervention and that the hormonal treatment benefited Alex’s mental and emotional health.

Re Jamie (2012-2013) (Re Jamie (2012) 46 Fam LR 439; Re Jamie (2013) 50 Fam LR 369)

In this case, the Court scrutinised the earlier decision of Re Alex.

Jamie was born male and identified as female from early childhood. Jamie’s parents and treating medical practitioners supported Stage 1 treatment for gender dysphoria.

In the first court proceedings in 2012, the Court made orders authorising Jamie’s parents to authorise the proposed treatment on behalf of Jamie.

However (and unusually) Jamie’s parents appealed the decision on a point of law. They did not disagree with the effect of the decision (allowing treatment) but argued  that consenting to treatment was within the ordinary ambit of parental responsibility (and not a matter to be authorised by the Court).

On appeal, the (then) Full Court of the Family Court of Australia, acknowledged gender dysphoria as a recognised physiological or psychiatric condition. As a result, gender dysphoria treatment was to treat a malfunction or disease and was therefore a therapeutic medical procedure.

Of note, the Court held that in relation to Stage 1 treatment (puberty blockers):

1. It was not a ‘special medical treatment’ within the meaning of Re Marion.

2. It did not carry the ‘grave risk’ that concerned the Court in Re Marion and Re Alex because the treatment was reversible.

3. It can be administered where the parties and the child’s treating medical practitioners agree and consent, and where the child is Gillick competent. However, should any dispute arise regarding the diagnosis, consent to treatment and/or Gillick competence, then Court approval was required.

Regarding Stage 2 treatment, the Court held that gender affirming hormones were a ‘special medical treatment’ and required the Court’s approval to be administered. The key reason was that Stage 2 treatment carried irreversible physiological consequences, and with it, serious risk of grave consequences if it is the wrong decision.

On Gillick competence, the Court felt it was bound by the High Court in Re Marion and held that the risks of Stage 2 were such that the Court must decide whether a child is Gillick competent upon hearing expert evidence – as opposed to a child’s treating medical practitioners decide Gillick competence where opportunity for review and scrutiny of professional judgment may be more limited.

Re Kelvin (2017) (Re Kelvin [2017] FamCA 78 (Watts J); Re Kelvin (2017) 351 ALR 329)

Kelvin was born a female and lived with his father. He had not seen his mother for two years at the time of the hearing; although the mother supported Kelvin’s transition to male.

Kelvin had not undergone Stage 1 treatment and Kelvin’s father applied to the Court for Kelvin to commence Stage 2 treatment.

In Re Kelvin, the trial judge sought clarification from the (then) Full Court of the Family Court of Australia regarding the state of the law following Re Jamie.

At the risk of oversimplification, we summarise the answers to the two key questions put to the Full Court:

1. Is Re Jamie (2013) wrong?

Three out of five judges (Thackray, Strickland and Murphy JJ) did not find it necessary or appropriate to consider whether Re Jamie (2013) was ‘plainly wrong’ because time had since shown that the benefits of treatment outweighed the risks. The remaining two judges (Ainslie-Wallace and Ryan JJ) held that Re Jamie (2013) was plainly wrong.

2. Does a Court have to determine Gillick Competency?

No, not when the parents and medical practitioners agree and consent that the child is Gillick competent.

While the reasoning differed amongst the judges, the Court found that the Court in Re Jamie was wrong in considering it was bound by Re Marion and finding that Gillick Competence required court determination.

It is interesting to note that following Re Jamie, between 31 July 2013 and 15 August 2017, 63 different cases regarding Stage 2 or 3 treatment were brought in the (then) Family Court of Australia. Treatment was allowed in 62 of those cases.

While Re Kelvin provided much needed clarification, confusion remained regard Stage 3 treatment and the issue of Gillick competency when parents disagreed.

Re Imogen (2020) (Re Imogen (2020) 61 Fam LR 34)

Imogen was born male. At the age of 16, Imogen’s treating medical practitioners diagnosed her with gender dysphoria and gave a treatment plan. Imogen commenced Stage 1 treatment in 2019.

Imogen’s mother objected to Stage 2 treatment. Her father applied to the Court for orders to allow Imogen to have the decision making responsibility for herself.

The Court authorised Stage 2 treatment. However, the Court raised questions regarding treatment decisions where consent or treatment are in dispute:

1. 1. 1. Is an application to the Court mandatory?
      2. Whether mandatory or not, once an application is made and if a child was found to be Gillick competent, can they make their own decisions about their treatment?
      3. If so, what order, if any, should be made in respect of the issue of Gillick competence?
      4. If a child consent is not sufficient and the Court is required to make an order that is in Imogen’s best interests, should that order grant the child ‘parental responsibility’ to make their own decision or should an order authorising treatment be made?

His Honour held that a court application is mandatory whenever a dispute arises, regardless of findings the child is Gillick competent.

It followed that medical practitioners cannot administer Stage 1, 2 or 3 treatment without positively expressed consent from both parents.

Re A (2022) (Re A [2022] QSC 159)

Re A is decision of the Supreme Court of Queensland and demonstrates a curious intersection of jurisdictions (State Courts versus Federal Courts). It is helpful to have a more detailed exposition of the facts.

The decision regarded a child who was 1-month shy of 17-years of age. The child was seeking Stage 2 treatment.

The mother and medical practitioners supported treatment. The medical practitioners also considered the child to be Gillick competent.

The father was not engaging with the child, mother or medical practitioners.

The child’s mother had first applied to the Federal Circuit and Family Court of Australia, but later abandoned the proceedings because of costs and delays.

The mother then applied to the Supreme Court of Queensland not within the family law jurisdiction but within the parens patriae jurisdiction (the power of the Supreme Courts of all States and Territories to act protectively for children on behalf the Crown).

The mother filed material with evidence from various treating medical practitioners and of the child’s long history of gender non-conforming behaviour.

The Court held that the child understood the nature and consequences of the treatment. The Court also made passing references to the decisions of Re Jamie (2013) and Re Imogen and indicated that it did not believe these decisions to correctly state the law.

The Supreme Court of Queensland held that finding the child Gillick competent was sufficient for treatment to proceed.

This decision is interesting – and a bit of a curveball – because the Court departed from the case law developed in the family law jurisdiction.

Here, the Court was concerned with whether child was Gillick competent. After finding the child was Gillick competent, the Court considered any deferral of decision making to parents to be inconsistent with the human rights of the child and principle of Gillick competence.

Some may interpret the approach taken by the Supreme Court of Queensland as the start of a new direction in which Gillick competence takes priority over the absence of any disagreement as to diagnosis or treatment.

However, it is important to remember this case concerned a child “13-months shy of 18 years of age”, with a long history gender non-conforming behaviour and support medical evidence. It is likely that the Federal Circuit and Family Court would have made the same decision.

Conclusion

This selected case review demonstrates journey the Court has taken from it being the authority to authorise special medical procedures, to only needing to be involved if and when there is a dispute.

However, the Queensland Supreme Court’s decision in Re A is an interesting development and opens up the possibility of a divergent line of case authority in the state jurisdiction.

How we can help

Our specialist Family & Relationship Law team can assist parents or medical practitioners when there is a dispute about a child’s diagnosis of and proposed treatment for gender dysphoria and Gillick competency. Please do not hesitate to contact us for a free initial 30 minute consultation and how we can assist you with your matter.

Information about the rights of transgender parents can also be found here.