Parents Dispute Child's Treatment for Gender Dysphoria
Re: Kelly [2022] FedCFamC1F 380 (2 June 2022)
The child seeks Stage 1 hormone treatment. The child’s medical practitioners and mother support the treatment. However, the father has not provided consent for the treatment and not participated in the proceedings. The Court, in adjudicating this dispute, was guided by the child's best interests.
Facts:
The mother is the applicant in general parenting proceedings in respect of the two children namely Charlie (a.k.a. Kelly) born 2009 (age 13 years) and Y born 2010 (age 11 years). The mother seeks the abridgment of time limits to enable this application to be heard urgently and sole parental responsibility. In the alternative to the abridgment, the mother seeks Stage 1 (hormone blocking) treatment of Kelly and authority to change the name on [Charlie’s] birth certificate to Kelly.
The matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia by order of 15 March 2022. The respondent father appeared in person before a judicial registrar on 25 March 2022 and was ordered to file a Notice of Address for Service. He has not done so. He has not otherwise formally participated in these proceedings. By order of 22 April 2022 an Independent Children's Lawyer was appointed for the children.
The parents began a relationship in September 1998 and separated in February 2015. The mother has obtained a family violence order against the father. The mother deposes in her affidavit that the father does not accept Kelly’s gender identity issues and has failed to maintain a relationship with Kelly since separation. He refuses to reference Kelly by her chosen name but continues to refer to her as 'Charlie'.
Kelly suffers a diagnosis of autism. The mother deposes that the father has also failed to maintain a consistent and meaningful relationship with the child Y. The mother deposes that Kelly has undertaken the necessary screening process for transgender children and been formally diagnosed by H Medical Service as having gender dysphoria and that Medical Service have confirmed Kelly as having the ability to consent to the first stage of treatment. The mother says that Kelly needs to commence hormone blocking treatment prior to her entering into male puberty.
Issue:
Whether or not the orders sought by the mother should be granted.
Applicable law:
Family Law Act 1975 (Cth) s 67ZC - provides generally that the Court has jurisdiction to make orders regarding the welfare of children where in doing so it must have regard to the best interests of the child as the paramount consideration.
Analysis:
Dr C from the I Centre (gender clinic) considers Kelly to meet the criteria for gender dysphoria. Kelly has consulted with Dr C, undertaken a comprehensive psychiatric assessment together with the appropriate fertility preservation counselling and where the psychiatric assessment discloses no other physical or psychological conditions in Kelly impacting on her self-identification. The evidence is that Kelly is informed and mature in expressing a rational view as to her gender dysphoria and appropriate treatment such that would satisfy the Court if necessary as to “Gillick Competence”. The father has not given formal consent to gender dysphoria treatment for Kelly. Nevertheless, he has not participated in these proceedings to show a lack of consent or objection.
The mother has a demonstrated capacity and insight in respect of the complex physical and emotional needs of Kelly. An early commencement of Stage 1 treatment is appropriate given the anticipated onset of puberty for Kelly and again noting that the effects of such treatment are reversible. There is strong evidence that the child has historically been identified as 'Kelly' for a considerable period of time and the use of the name 'Kelly' was at the behest of the child. Without hearing further from the father, the father's disagreement to the child's wish to be known socially as "Kelly" could only cause further distress and anxiety for the child.
Conclusion:
By consent of the mother and the Independent Children’s Lawyer, and undefended by the father, the mother is authorised to sign all documentation as is necessary to vary the birth certificate of the child Charlie born 2009 to the effect that the child be formally known and recorded as Kelly born 2009. The mother has sole parental responsibility in relation to the children who are to live with the mother.