Australia: Born in the wrong body: Gender dysphoria in family law

Last Updated: 23 October 2016
Article by Rachael Murray and Fraser Murray

Growing media attention across Australia has created greater public awareness of a rising and significant number of children who find themselves feeling that their body does not reflect their true gender, better described as experiencing cross-gender identification or gender dysphoria.

Many children who are diagnosed with gender dysphoria find support from their parents and doctors. Sadly, others discover fear, prejudice and a complicated legal system that doesn't make it easy for them to navigate their way through childhood in what can only be described as challenging circumstances.

Doctors and paediatricians also make it clear that timing is crucial; explaining that if children want to make a physical change, then treatment should begin at puberty. Reflective of this, research shows that hormone treatments can be prescribed with far better results is addressed with appropriate timing.

In Australia, for a child to commence such treatment, described as "Stage 2 treatment for gender dysphoria", permission to do so must first be obtained by way of orders made in the Family Court.

Following the recent decision of Re Jason, proceedings concerning a 16 year old child born genetically female, but identifying as male, this article discusses the Court's approach to determining an application for a child to commence Stage 2 treatment, and the evidentiary factors that an applicant or their legal representatives must consider in bringing such an application before the Court.

The Court's approach

Stage 2 treatment for gender dysphoria is a special medical procedure which requires the Court's authorisation pursuant to section 67ZC of the Family Law Act 1975 (Cth) (the Act), unless the child is Gillick competent to give informed consent.

First step

The first step is determining whether the child is Gillick competent.

A Gillick competent child is one who has achieved a "sufficient understanding and intelligence to enable him or her to understand fully what is proposed".

The Court has held that the power to conduct the initial threshold enquiry in respect of Gillick competence is inherent or implied.

When conducting this enquiry, given that the provisions of section 67ZC of the Family Law Act are not yet enlivened, the Court is neither required to have regard to the best interests of the child as a paramount consideration nor consider all the matters in section 60CB to section 60CG of the Act.

The Court has noted, however, that there may be an overlap between the facts relevant to making a finding about Gillick competence and some of the s 60CC considerations, particularly section 60CC(3)(A) which relates to the views expressed by the child.

The Court's authorisation to the procedure is not required if the child is Gillick competent and, in those circumstances, the decision is left to the child. However, even if the child is considered Gillick competent, it is necessary to have the Court make a declaration to that effect as it is the Court, and not the child's treating professionals, that determine whether the child is Gillick competent.

Second step

Should the Court determine that the child is not Gillick competent then it is necessary to obtain an order authorising the child to undergo stage 2 treatment pursuant to section 67ZC of the Family Law Act.

Section 67ZA Orders relating to welfare of child

  1. In addition to the jurisdiction that a Court has under this Part in relation to children, the Court also has jurisdiction to make orders relating to the welfare of children.
  2. In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 67ZC(2) confirms that the child's best interest is the paramount consideration and the Court will therefore consider the factors in section 60CC of the Family Law Act in determining what is in the best interests of the child. In addressing the section 60CC factors, the most relevant considerations that the Court would consider are:

  • any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
  • the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
  • whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  • any other fact or circumstance that the court thinks is relevant.

Procedural aspects

Who can make an application?

In order to obtain an order that either the child is Gillick competent or an order from the Court authorising Stage 2 treatment, it is necessary to bring an application in the Family Court of Australia.

The following persons can make the application:

  • a parent of the child;
  • a person who has a parenting order in relation to the child;
  • the child;
  • the independent children's lawyer; or
  • any other person concerned with the care, welfare and development of the child.

If the applicant is not a parent of the child or a person who has a parenting order in relation to the child, those persons must be named as a respondent to the application.

Service of the application

Any application must also be served on a prescribed child welfare authority, being state and territory child welfare departments. In Queensland, this is the Director General, Department of Communities Child Safety and Disability Services.

Appointment of an Independent Children's Lawyer (ICL) or Family Consultant

An important consideration is whether any application to the Court is made on behalf of the child or on behalf of the parents and in most of the cases, it is the parents will make the application on behalf of the child. The Court will then decide whether it is necessary to appoint an ICL based on the circumstances of the case.

The Court has held that an Independent Children's Lawyer should be appointed in applications in the court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties. In recent matters, the Court has found that in any case where the child is capable of expressing a view, it is desirable that a separate representative be appointed.

In the case of Re: Logan, the Court made an order pursuant to section 68L of the Family Law Act that an Independent Children's Lawyer be appointed (noting that the parents of the child were the applicants in the case). The Court also ordered, pursuant to section 62G(2) of the Act that a family consultant be appointed to prepare a report addressing:

  • whether or not the child had a sufficient understanding and intelligence to enable the child to understand fully what is the medical procedure and related ongoing treatment for gender identity dysphoria; and
  • whether or not the child is competent to make their own decision in respect of the proposed gender identity treatment.

A family report may not always be required however, noting that Justice Watts in Re: Logan found that although the family report in that case provided additional assistance, it may not have been necessary to achieve the outcome. In other matters the Court has found that it may be sufficient to hear the child's voice through the evidence of the child's parents and treating medical experts (usually a physiatrist and paediatric endocrinologist).

Evidence

Rule 4.09 of the Family Law Rules requires that evidence must be provided on affidavit to satisfy the Court that the proposed medical procedure is in the best interests of the child.

Rule 4.09(2) requires that such must include that of a medical, psychological or other relevant expert witness that establishes:

  • The exact nature and purpose of the medical procedure;
  • The particular condition of the child for which the procedure is required;
  • The likely long-term physical, social and psychological effect on the child if the procedure is carried out and if it isn't;
  • The nature and degree of any risk to the child from the procedure;
  • If alternative and less invasive treatment is available – the reason the procedure is recommended instead of alternative treatments;
  • That the procedure is necessary for the welfare of the child;
  • If the child is capable of making an informed decision about the procedure (including whether the child agrees to the procedure);
  • If the child is incapable of making an informed decision about the procedure, that the child is currently incapable and 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;
  • Whether the child's parents or carer agree to the procedure.

It is also worth noting that in cases such as Re Alex (where the child was found to lack Gillick competence), evidence from school teachers, wellbeing coordinators and principals was also relevant to the Court making a finding as to whether the procedure would be in the child's best interests.

Expediency

An important factor is the expediency in which proceedings are commenced and finalised, in circumstances where delay can have serious consequences for a child.

Experts suggest that in certain cases, if treatment is not authorised for a child, that child is likely to experience ongoing gender dysphoria with its associated mental health issues, including significant risk of low mood, anxiety, and social isolation, leading to the possibility of self-harming and suicidal behaviours.

It is also noted that with ease of access to the internet and social media, children are more able to obtain information themselves from transgendered blog sites and discussion groups. It follows that there is a theoretical risk that if untreated, a motivated child could acquire the knowledge to resort to using suboptimal hormone treatment illicitly via the internet or by other means, which is not regulated by specialists with expertise in the treatment of gender dysphoria.

The Court recognises the need for expediency of proceedings to be concluded, and accordingly Rule 4.11 of the Family Law Rules requires that a matter must be listed before a Judge if practicable within 14 days after the date of filing.

HopgoodGanim Lawyers' Family Law team prides itself on leading the legal community in developing expertise in relation to emerging areas of family law, including gender dysphoria matters. Anyone who feels strongly that they are not the gender they physically appear to be should seek legal advice (together with medical advice) from specialists with experience in dealing with this area.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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Authors
Rachael Murray
 
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