Marino Law | Gold Coast Law Firm

Family Court removes hurdle for children with Gender Dysphoria

Last week reported on the case of “Miles” a transgender boy who despite having loving and supportive parents, a school who embraced his identity and friends who created a “Rainbow Alliance” to support him and other children like him at school, tried to take his own life as a result of the stress of the process of transitioning from “Ella” who he was born as to “Miles” which was his true gender identity.

The reason for the enormous stress was the requirement for Family Court permission to proceed with the next stages of his transition, as he was under the age of 18.

Until last week, any person under the age of 18 was required to obtain the permission of the Family Court of Australia to commence oestrogen or testosterone treatment or have surgery as part of the transition process.  This was required even if both parents were in support of the treatment or surgery.

This means that unlike Miles, children will not have to endure the stress, and the parents the cost of the relevant Family Court proceedings.

The decision of the Full Court of the Family Court in Re: Kelvin [2017] FamCAFC 258 was delivered on 30 November, 2017 and it answered “NO” to the following question:-


  1. Stage 2 treatment of a child for Gender Dysphoria is proposed;
  2. The child consents to the treatment;
  3. The treating medical practitioners consider that the child is Gillick competent to give that consent; and
  4. The parents of the child do not object to the treatment

Is it mandatory to apply to the Family Court for a determination of whether the child is Gillick competent?

In the decision of Re: Kelvin, the Court considered treatment for a young person who was identified as female at birth but diagnosed with Gender Dysphoria from at least the age of 9 as he identified as a male person. The Court noted that the treatment for Kelvin would:-

Allow Kelvin to continue to develop his self-esteem, the confidence in his body and appearance and to consequently develop the congruence necessary for a health future outlook.  The purpose of the treatment is to further align Kelvin’s physical gender characteristics with his inner gender identity.   That treatment is necessary to promote Kelvin’s wellbeing and to relieve his suffering.

If treatment was not carried out his overall health and wellbeing is almost certain to deteriorate especially as his mental and physical health is heavily dependent on the perception of himself as a male.

This decision finally removes the requirement for Court intervention for children with Gender Dysphoria.   The treatment for Gender Dysphoria is subject to international protocols and involves a multi layered approach to diagnosis and treatment of children.

It is no longer a treatment which lies outside the bounds of parental authority and if the parents, the child and the treating professionals consider that the treatment is necessary and proper then the Court should not and will not now have a role.

This case serves to highlight the changing approach to issues such as Gender Dysphoria and a concerted effort on the part of the Family Court to “butt out” of matters which are for families and at times children to decide.

Marino Law offer expert and effective advice on all aspects of Family Law.  Should you wish to discuss your parenting or property settlement matters with our Accredited Specialist led team contact us on 55260157.

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