Secrecy in Australian family courts

What is going on in Australia when it comes to court cases about gender-questioning children and youth? It’s hard to really know, since the legal system Down Under regularly issues gag orders and many such cases are shrouded in secrecy. In a recent investigative piece in The Australian, Transparency, please: the troubling case of Imogen, journalist Bernard Lane helps shed light on one case in which the parents disagreed on the treatment of a trans-identified minor, with the judge ruling in favor of medical transition despite the mother’s objections.

Australian family courts must get involved when parents disagree on a child’s treatment. In the case of Imogen, it seems clear that she and her sibling had a traumatic childhood due to their parents’ fighting and eventual divorce. In fact, her sibling was diagnosed with trauma in 2017 and prescribed anti-depressants. In the case of Imogen, she too exhibited depressive symptoms as a young teenager and was given medication. However, when she went on a trip with her father and his new partner, it seems the partner, who was driven by her research into gender ideology, at least to some extent influenced Imogen to believe her feelings meant she was a girl, despite never having exhibited gender dysphoria during childhood.

The case went to court in February 2020, even though Imogen had been encouraged by her father to start cross-sex hormones six months before without her mother’s knowledge. The mother only learned the truth on the second day of the hearing, in August 2020, almost a full year later.

Then the Keira Bell decision in the UK came down in early December 2020. Health ministers across Australia were urged to consider the impact of this case. However, “The Australian authorities that are responsible for children’s hospital gender clinics and taxpayer-funded hormone drugs have played down the local significance of the UK Tavistock litigation, pointing out that they answer to our Family Court.”

This is where the pro-transition decision in Imogen’s comes back into play. One health minister “highlighted the warning given by Watts [Imogen’s judge] that doctors cannot go ahead with puberty blockers, hormones or surgery for minors unless they check first that both parents agree…. This suggests that in an unknown number of cases, doctors had begun treatment on the say-so of only one parent, cutting out a separated or estranged partner whose suspected disagreement would require a court hearing to decide what to do.” (Emphasis ours.)

Another judge went on to say that “doctors and lone parents had been sent the message that they no longer needed court approval for under-18 gender medicine and were themselves the judges of whether there was disagreement about treatment.”

The more recent ruling in Imogen’s case has somewhat lessened the confusion, because Judge Watts’ ruling clarified that in fact the courts must be at the crux of such disputes. However, “[i]f Watts has clarified and tightened the law for the future, there remains troubling uncertainty about what happened with Imogen. A psychiatrist who gave evidence for the mother told the court that what looked like a gender issue was, in his opinion, untreated trauma from Imogen’s exposure to family violence. He recommended psychotherapy, not hormone drugs.”

Yet Imogen received the drugs months before the mother was informed. And despite all this, Judge Watts ultimately sided with the father and his team.

This begs the question: “Was the judge approving hormone treatment which in fact had already begun, possibly contrary to the law?” There was some back and forth about the dosage amounts and whether that constituted enough of a treatment, but what is undisputed is that Imogen started estrogen – without even a prescription – months before behind her mother’s back. Additionally, Judge Watts did not probe further into the dosing issue during the hearing, issuing only a mild rebuke to the father for allowing Imogen to buy the off-market drug overseas.

It’s undoubtedly a confusing case, made even more so by the lack of transparency and access to critical documents. Such Australian obfuscation looks set to continue on indefinitely. As Lane reports: “The judge refused the mother’s request for a waiver of Family Court secrecy provisions so she could rely on documents from the case for official complaints against Imogen’s doctors.”

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