When a child seeks gender affirming medical treatment, parents may not always agree on what is best. This article explains how parental responsibility works in these cases, when the Court becomes involved and what recent cases tell us.
Introduction
Gender affirming treatment for children is a growing area of legal and medical focus in Australia. While many families navigate this process with the support of doctors and therapists, things can become legally complex when parents disagree or when there are questions about the child's capacity to consent. In such cases, the Federal Circuit and Family Court of Australia (Division 1) may need to decide whether the child is competent, whether the treatment should proceed and whether either parent should make that decision.
What is gender affirming treatment?
Gender affirming treatment refers to medical care that supports a young person's gender identity. It often occurs in three stages:
- stage 1: puberty blockers
- stage 2: gender affirming hormones, such as testosterone or oestrogen
- stage 3: surgical interventions (which are rare in children).
These treatments usually involve input from specialist doctors, psychologists and gender clinics.
Who can consent to treatment?
In some cases, children can give valid consent to their own medical treatment if they are found to be Gillick competent - meaning they understand the nature, risks and consequences of the treatment.
However, the Court will intervene when:
- parents disagree about the treatment
- a parent or doctor questions the child's capacity to consent
- surgical intervention is proposed.
Parental responsibility and disputes
Under the Family Law Act 1975 (Cth), parents automatically have equal shared parental responsibility for their child. Parents are encouraged, but not required, to consult each other about major long-term issues affecting the child.
Significant medical treatment, including gender affirming care, is considered a major long-term issue.
If the parents cannot agree, the Court can:
- decide whether the child is Gillick competent
- grant one parent sole parental responsibility for medical decisions
- authorise or decline the proposed treatment based on the child's best interests.
The legal shift since Re Kelvin
Previously, all stages of gender affirming treatment required court approval - even if the child, parents and doctors all agreed on the treatment. That changed with Re Kelvin [2017] FamCAFC 258, where the Court ruled that, if a child is Gillick competent and there is no disagreement between parents and doctors, court involvement is not required for stage two hormone treatment.
In Re Imogen [2020] FamCA 761, the Court made it clear that, when one parent or treating practitioner disputes the child's competence or whether the treatment should happen at all, the Court must resolve the issue.
Case example: Re: Devin [2025] FedCFamC1F 211
This case involved a 12-year-old child seeking access to puberty blockers. The child's mother supported the treatment and said the child had been experiencing gender dysphoria for some time. The father opposed the treatment and questioned both the diagnosis and the child's understanding of what it involved.
The Court awarded sole parental responsibility to the father - effectively preventing the treatment from occurring, given the father's views. Justice Strum highlighted the lack of a thorough assessment by the gender clinic and raised concerns about whether the treatment was truly in the child's best interests. The case serves as a reminder that the Court looks closely at the evidence, not just parental views, when significant medical decisions are proposed.
What about stage three treatment?
Surgical treatment is rarely approved for children. When it is considered, the Court requires extensive expert evidence and clear proof that the child understands the consequences and that the procedure is in their best interests. These cases are treated with a high level of caution.
Concluding thoughts
Gender affirming treatment is deeply personal and emotionally charged. While many families work together with medical professionals to support their child, legal disputes can arise - especially where there is disagreement between parents or questions about the child's capacity to consent.
In those cases, or where surgical intervention is proposed, the Court can determine whether it is in the child's best interests for treatment to occur. Early legal advice is essential to navigate these issues clearly and sensitively.
If you have any questions about gender affirming treatment for your child and the legal process, please contact one of our experienced family lawyers.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
