Parental gender affirmation and children’s best interests in Australian family law

Abstract

This article examines how the Australian family courts have considered parental gender affirmation when determining the best interests of children in post-separation parenting disputes under Part VII of the Family Law Act 1975 (Cth). It analyses three features of the jurisprudence which arguably challenge the acceptance of transgender and gender diverse (‘TGD’) families in Australian family law: the potential risk of harm to children, and the impacts on parenting capacity, from a parent affirming their gender; emphasis upon the uniqueness of parental gender affirmation as a childhood experience, with attendant risks to children from ‘public’ exposure; and the importance of language to the social affirmation of gender and for representing the perspectives and experiences of TGD parents and their children. The author argues that as more post-separation parenting disputes involving parental gender affirmation come before the Australian family courts, they will contribute to making TGD families more ‘visible’ in law, thereby promoting greater understanding of a family form that may still be labelled ‘ambiguous’, ‘novel’ or lacking an ‘established social or legal script’.

The parenting experiences of transgender and gender diverse (‘TGD’) ¹ individuals have garnered increasing scholarly attention in recent years, ² including in relation to parenthood aspirations, ³ perinatal care, ⁴ mental health, ⁵ and negotiating the gender affirmation process with children and co-parents. ⁶ This article focuses on a facet of TGD parenting that remains underexplored in Australia: how the family courts consider the issue of parental gender affirmation when determining the best interests of children in post-separation parenting disputes. Gender diversity as a concept encompasses the expression of gender identities beyond the binary framework of ‘male’ and ‘female’. ⁷ Gender ‘affirmation’ (sometimes referred to as ‘transition’) ⁸ is an ‘umbrella term’ used to describe ‘the range of actions and possibilities involved in [TGD individuals] living, surviving, and thriving as [their] authentic gendered selves’. ⁹ TGD individuals may affirm their gender identity through social, medical, surgical and/or legal processes. The various standards of care and treatment guidelines used in Australia ¹⁰ endorse a ‘gender-affirming’ model, which is considered to ‘holistically attend […] to transgender people’s physical, mental, and social health needs and well-being while respectfully affirming their gender identity’. ¹¹

Despite the growing ‘visibility’ ¹² of TGD individuals in Australia’s socio-cultural, legal and political landscape, as well as a significant increase in demand for gender healthcare services, ¹³ there are no reliable indicators of the TGD population in Australia. ¹⁴ For instance, the national census collects information on sex, but not gender. ¹⁵ As a result, the proportion of TGD individuals in Australia who are parents is also unclear.

In this article, I examine the published Australian case law in which a parent’s gender affirmation has borne on the judicial assessment of a child’s best interests in proceedings under Part VII of the Family Law Act 1975 (Cth) (‘Family Law Act’). My analysis exposes three features of the jurisprudence which arguably challenge the acceptance of TGD families as a family form that lies beyond the ‘ideal’ heteronormative, cisgender framework. ¹⁶ The first feature is the risk of emotional or psychological harm to children from a parent affirming their gender, and the impact of such gender affirmation on parenting capacity. The second is judicial emphasis on the uniqueness of parental gender affirmation as a childhood experience, with attendant risks to children from public exposure. The third feature is the importance of language to the social affirmation of gender and for representing the perspectives and experiences of TGD parents and their children.

I argue that, as more post-separation parenting disputes involving parental gender affirmation come before the Australian family courts, ¹⁷ they will contribute to making TGD families more ‘visible’ in law. ¹⁸ In doing so, they will serve to promote enhanced understanding of this family form, which is at times labelled ‘ambiguous’, ‘novel’ and lacking an ‘established social or legal script’. ¹⁹ Yet in an increasingly polarised, ‘anti-trans’ socio-political climate, ²⁰ enhanced visibility may also bear risks for TGD families, including greater regulation that further marginalises them, particularly if the courts do not ‘march in lockstep in a progressive direction’ with human rights. ²¹

Parental gender affirmation in the Australian post-separation parenting context

Unlike the United States, ²² scant attention has been devoted to post-separation parenting disputes involving a TGD parent in Australia. At the time of writing, and to the best of my knowledge, there are only five published judgments, in three separate proceedings, in which parental gender affirmation has been a live issue in the context of assessing ‘the best interests of the child’ as ‘the paramount consideration’ ²³ in proceedings under Part VII of the Family Law Act following parental separation. ²⁴ This is unsurprising, given the dearth of data on TGD individuals noted above, the small proportion of post-separation parenting disputes resolved by judicial determination, ²⁵ and changes over time in the judgments publication policies of the various courts exercising family law jurisdiction. ²⁶ As a result, the five judgments that I analyse below are not representative of either parenting relationships involving TGD individuals or relationship breakdowns involving one or more TGD parents. Furthermore, as Millbank observed in relation to same-sex families, ‘[t]he handful of reported and unreported cases … are often treated as oddities’, yet ‘these issues are oddities only in as much as they are litigated, not in their occurrence’. ²⁷

The proceedings each concerned competing applications for parenting orders. In Parer v Taub [No 2] (‘Parer’), ²⁸ the applicant, who was registered at birth as a male, had ‘taken active steps to live, as and by her true identity and gender’ as a female in the course of the protracted legal proceedings. ²⁹ The applicant’s gender affirmation was ‘foremost among the many issues having significant bearing on’ ³⁰ the dispute over parenting arrangements for three children, aged 17, 12 and 7 years. In Neaves v Neaves (‘Neaves’), ³¹ the applicant had affirmed her female gender during the course of the respondent’s pregnancy. Among other matters, the parties ‘found it difficult to agree [on] how to define the applicant’s parental role’ in relation to their three-year-old child. ³² The issue in Vitalis v Kazan (‘Vitalis’) ³³ was whether the court should make interim orders for two children, aged 8 and 4 years, to continue to have supervised time with the applicant, who was in the process of affirming her female gender. The applicant was ‘no longer the children’s father, a matter which the evidence suggests the children seem to be slowly accepting, albeit not without difficulty’. ³⁴ In Vitalis v Kazan [No 3], ³⁵ the applicant sought leave to provide the single expert report writer with social science research on ‘transgender parents and the impacts of transitioning on the children of transgender parents’. ³⁶ Vitalis v Kazan [No 4] ³⁷ was an application to vary the interim orders made in Vitalis to enable the children to spend unsupervised time with the applicant.

The issue of parental gender affirmation arose in these judgments in the context of assessing the risk of harm to the child; the nature of parent-child relationships; parental capacity to provide for the child’s needs; each parent’s ‘maturity, sex, lifestyle and background’; and ‘any other fact or circumstance that the court thinks is relevant’. ³⁸

The five judgments were published across an 11-year period: Parer in 2012; Neaves in 2022 and the Vitalis judgments in 2022 and 2023. While this may not necessarily represent a significant period for the development of precedent in some areas of law, the socio-cultural, political, medical and legal landscape surrounding TGD issues has developed markedly within this time. For instance, courts have accepted that legal questions regarding gender-affirming medical treatment involve ‘clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate’. ³⁹ The ensuing analysis of the five judgments appreciates that each case was decided ‘at a particular point in time, and at a particular stage in the development of legal principle, and … medical science’, ⁴⁰ which has necessarily shaped judicial understandings of TGD parenting between 2012 and 2023.

I expose three features of these judgments that I suggest challenge the acceptance of TGD families in Australian family law as a family form that lies beyond the dominant heteronormative, cisgender framework: parental gender affirmation as ‘confusing’ and ‘complex’ for children, although not necessarily harmful to them or to parenting capacity; the perceived need to shield children from ‘public’ reactions to their parent’s gender affirmation, including ‘taunts, jibes and ridicule’ from their peers; ⁴¹ and the significant role of language for an individual’s social affirmation of their gender and for representing the experiences and perspectives of TGD families.

Parental gender affirmation as ‘confusing’ and ‘complex’, but not always harmful

In determining what is in a child’s best interests when making parenting orders in proceedings under Part VII of the Family Law Act, the court must take into account a list of ‘primary’ and ‘additional’ considerations. ⁴² The primary considerations are: the benefit to the child of having a meaningful relationship with both parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. ⁴³ The court is legislatively mandated to prioritise protecting the child from harm. ⁴⁴ The Full Court of the Family Court of Australia has held that the assessment of ‘need’ in the second primary consideration requires ‘any relevant risk to be identified and assessed’. ⁴⁵

Research on outcomes for children raised in TGD families has engaged with a greater likelihood that the children will identify as TGD themselves, as well as their potential risks of experiencing poor mental health and public stigma. ⁴⁶ These issues emerged across the judgments analysed. However, the experiences of the children in these cases are not necessarily representative of the experiences of all children who have TGD parents; nor should the arguments made by the parties regarding child distress and psychological harm, presented below, be taken to be representative of TGD families more generally.

The evidence before the court in each case did not establish that the parent’s gender affirmation and/or its impacts on the children amounted to an ‘unacceptable risk’ of harm that would outweigh the benefit to the child of having a meaningful relationship with that parent. Altobelli J in Vitalis evinced the most cautious approach to this conclusion. His Honour rejected the applicant’s submission that ‘excellent’ supervised contact reports indicated that the children were coping well. ⁴⁷ Altobelli J ordered that supervised time with the applicant continue until expert evidence was available, accepting that there was ‘a risk of psychological harm to the children arising out of … the transition of the person who was their father, into the person who is now their parent’. ⁴⁸ His Honour formed the ‘strong impression’ that the children were ‘distressed’ and ‘struggling with the enormous changes that have happened, and continue to happen in their young lives’: ⁴⁹

The children are reported telling the applicant that they want her to be a boy, not a girl. They make comments suggesting at times that they are confused about their own gender. They physically lash out at the applicant, ostensibly in anger, confusion and frustration about the changes they have observed. The respondent has observed the children become distressed and cry and attribute the reason for this to the applicant dressing like a girl. The oldest child became distressed in the car and claimed that she: ‘… can’t get [Dad’s] girl stuff out of my head. It makes me so sad’. ⁵⁰

However, the expert report presented in Vitalis [No 4] allayed Altobelli J’s concerns. His Honour agreed with the expert’s view that ‘the children do not appear to be at risk of physical or psychological harm, other than in the context of a parental conflict’. ⁵¹ Notably, it was a ‘lack of coordination’ in supporting the children to deal with the applicant’s gender affirmation – rather than the applicant herself – that was considered a source of risk. ⁵² The expert emphasised that the children were at ‘an important developmental stage’ where they needed ‘both parents involved in their lives and daily routines’. ⁵³ Altobelli J described the respondent’s proposal to have another interim hearing before the final hearing as borne of ‘an inherent and unfounded anxiety … about extending the children’s time’, when the expert report writer had observed the ‘joyful and excited interaction’ between the children and the applicant. ⁵⁴

A similar argument regarding risk of harm to the children was advanced in Parer. The respondent submitted the children’s time with the applicant should be supervised, for reasons (among others) that the children were expressing ‘concerns’ about the applicant’s gender affirmation; ⁵⁵ it was ‘unsafe’ for the children to be with the applicant in public; ⁵⁶ the children were refusing contact, with one child feeling ‘scared and uncomfortable’ and suffering ‘extreme anxiety’ when with the applicant; ⁵⁷ and because the applicant had shown the children a film about the relationship between a child and a TGD parent who was affirming their gender. ⁵⁸ This film screening became a focal point of the proceedings. Harman FM described the use of the film as ‘appropriate and responsible’, ⁵⁹ because the applicant’s gender affirmation, while ‘complex’ and ‘confronting’, was

not an abstract concept for these children. It is a lived reality and one which, without understanding and acceptance by them (and by others within their family and life) will impact negatively upon their relationship with their father and upon them. ⁶⁰

His Honour held that for the youngest child to be able to share the applicant’s lived experience of gender affirmation would add to the child’s ‘life skills and to the meaningful nature of her relationship with her father’. ⁶¹ Harman FM emphasised the ‘real benefit’ to the child from learning ‘to respect difference and value people (including her father …) for who they really are’, and from the applicant having the opportunity ‘to provide [the child] with values such as tolerance, inclusiveness and authenticity and integrity’. ⁶² In this way, Harman FM implicitly appreciated the ‘family resilience’ that often emerges from parental gender affirmation, ‘such that family members, including children, are moved [to] embrace more expansive notions of gender and become more tolerant of marginalized groups overall’. ⁶³

In Neaves, Burt J observed the parents’ ‘very different perspectives … in terms of gender’. ⁶⁴ The applicant wanted the child ‘to understand from a very young age that he may identify as a different gender’. The applicant indicated that she would support the child affirming their gender, including by their chosen name and clothing. ⁶⁵ The respondent was ‘so concerned’ about the applicant’s ‘extreme gender ideology’ that she sought to apply for an injunction to prevent the child from being exposed to it. ⁶⁶ The respondent’s application was based partly on a book, entitled It Feels Good to Be Yourself, that the applicant had read to the child during a supervised visit. In dismissing the respondent’s application, Burt J considered that any injunction would be unenforceable, given the subjectivity attached to the term ‘extreme gender ideology’. ⁶⁷ Her Honour was satisfied that ‘[a]s long as each parent is able to show respect for and courtesy towards the other parent’s views, children are not harmed by exposure to differing perspectives’. ⁶⁸

Despite the court in each case rejecting the argument that parental gender affirmation created an unacceptable risk of emotional or psychological harm to the children, ‘confusion’ did emerge as a persistent motif across the judgments. Judicial characterisation of the impacts of parental gender affirmation included references to the children being ‘confused and confronted’ ⁶⁹ or ‘confused and angry’; ⁷⁰ evidence of a child reporting that they were experiencing ‘pretty confusing’ circumstances; ⁷¹ the children’s ‘obvious confusion and curiosity’; ⁷² and an observation that any change to the terminology that the child used to refer to the TGD parent would be ‘confusing’. ⁷³ In Parer, Harman FM observed that the applicant’s prior ‘confusion’ over her gender was ‘now echoed in the minds of these children as they struggle to comprehend and understand that which their father has undertaken’. ⁷⁴

Three of the judgments also considered the scope for the parent’s gender affirmation to impact upon their capacity ‘to provide for the needs of the child, including emotional and intellectual needs’. ⁷⁵ In Vitalis, Altobelli J appreciated that gender affirmation ‘does not necessarily impact on parenting capacity’. ⁷⁶ His Honour observed that ‘[t]he Family Law Act … applies equally to all parents’ and ‘there was no suggestion that a transgender parent is less capable of parenting because of transition’. ⁷⁷ However, given that there was ‘so little that the parents and this Court know about what is happening in the children’s lives’, Altobelli J noted that the causes of the children’s ‘confusion, anger, frustration and possibly even anxiety’ was the ‘realm of expert evidence’. ⁷⁸ His Honour ordered that the applicant’s supervised time with the children continue until such evidence was available. In Vitalis [No 4], the respondent had ‘residual concern’ about the applicant’s parenting capacity, ‘particularly in relation to insight’. ⁷⁹ Altobelli J gave ‘significant weight’ to the evidence of the single joint expert, although untested, as it was the ‘only independent and expert evidence before the Court’. ⁸⁰ The expert recommended that the children spend gradually increasing unsupervised time with the applicant, and that the applicant receive ‘assistance with parenting support’ and ‘psychoeducation in developmentally appropriate parenting behaviour’. ⁸¹

In Parer, the family report writer’s ‘unchallenged’ evidence was that the applicant’s capacity to care for the children full-time was ‘very problematic, particularly because she now seems to be struggling with many issues linked to her gender transition’. ⁸² Harman FM also accepted that there was ‘some merit’ to the expert psychiatrist’s opinion that the applicant had occasionally ‘demonstrated a propensity to be focused upon her needs particularly in connection with her social status and gender’ and could not ‘view, perceive or comprehend those issues from the perspective of the children’. ⁸³ However, his Honour was not satisfied that this propensity for ‘self-focus rather than child-focus’ ⁸⁴ represented a ‘manifest incapacity’ that would obviate against the applicant caring for or meeting the children’s needs. ⁸⁵

It is also worth noting the role and influence of social science research to inform the court’s assessment of the impacts of parental gender affirmation. ⁸⁶ In Vitalis, the single joint expert appointed to prepare a report was to consider, among other matters, ‘any current and/or likely future effects on each child … of the applicant’s gender transition’. ⁸⁷ In Vitalis [No 3], the applicant sought leave to provide the expert with a 295-page affidavit setting out ‘the applicant’s efforts to research studies relating to transgender parents and the impacts of transitioning on the children of transgender parents’. ⁸⁸ Altobelli J concluded that there was ‘more advantage than disadvantage’ in allowing the research to be given to the single joint expert, ‘who can make of it as she chooses in her expert opinion’. ⁸⁹ However, his Honour ordered that the applicant’s ‘summary’ of the relevant research be deleted from the affidavit, because of its selectivity: it was ‘potentially so subjective that it would be of greater harm than benefit’ to the expert. ⁹⁰

A parallel can again be drawn with post-separation parenting cases involving same-sex parents. A 2002 study analysing reports prepared by family court counsellors in such cases identified a ‘reluctance’ amongst counsellors to formally scrutinise or challenge allegations linking negative outcomes for children with same-sex parents or to engage with social science knowledge. ⁹¹ In Vitalis [No 3], Altobelli J’s orders noted that the applicant’s affidavit did ‘not purport to be a comprehensive coverage of the available research on the issue’ and that it did ‘not relate to the children specifically but, at best, children of transgender parents’. ⁹² The orders arguably reflect a nuanced judicial approach to informing the assessment of a ‘critical’ issue in the case, while simultaneously (albeit indirectly) enabling social science research to serve as ‘an antidote to social attitudes that simply reflect … prejudices’ about TGD parents. ⁹³

The above analysis suggests that, at least in the absence of expert evidence to the contrary, Australian family courts have rejected the view that a parent affirming their gender is inherently ‘risky’ or ‘harmful’ to children and to meaningful parent-child relationships, or necessarily impairs that parent’s capacity to care for and meet the needs of their child. In contrast, the second common feature of the Australian jurisprudence arguably is less promising for promoting understanding and acceptance of TGD families in Australian family law.

Regulating the ‘public’ and the ‘private’ of TGD families following parental separation

The judgments in Vitalis and Parer highlighted the potential social stigma for children of their TGD parent being exposed to the public gaze. In Vitalis, Altobelli J emphasised the need to maintain the privacy of the applicant’s gender affirmation, through ‘[e]xtra precautions … to protect the identities of all parties’, ⁹⁴ given the ‘public, not private’ nature of the changes. ⁹⁵ His Honour considered that the children lacked the ‘emotional resilience’ to handle the ‘public elements’ of their parent’s gender affirmation, ⁹⁶ including the ‘real’ ‘risk of bullying and exclusion’ as the children interacted with ‘a society whose knowledge and attitudes about gender identity are still evolving’. ⁹⁷ In Vitalis [No 4], the expert report writer recommended that a change in the children’s school may need to be considered, as a ‘last resort’, if the children experienced ‘discrimination or prejudice’ at their ‘conservative religious school’ as a result of the applicant’s gender affirmation. ⁹⁸

These concerns were magnified in Parer. Harman FM noted that the family’s ‘difficult’ circumstances had been exacerbated by ‘unwarranted, unfair and unhelpful community perceptions expressed especially to these children’. ⁹⁹ In arguing for supervised time, the respondent gave evidence that the applicant was ‘subjected to regular assaults’, ‘teased’, ‘made fun of and taunted’, such that one of the children felt ‘scared and uncomfortable … out in public’ with the applicant. ¹⁰⁰ The respondent articulated her anxiety about the applicant exposing the children to danger as follows:

The father has said … he fears for his safety and for the safety of the children when they are in public. The father chose to transgender. The children however are young and vulnerable. It is my obligation to protect my children especially from aspects of life and ways of their father that will damage them, perhaps in ways I do not yet know. ¹⁰¹

When it was put to the applicant in cross-examination that the children might find being with her in public a ‘somewhat confronting experience’, given the potential for ‘public humiliation and/or taunting or even confrontation or assault’, the applicant responded: ‘It depends on how others view me. Some might see me as offensive. Many don’t. It’s other people’s reactions’. ¹⁰²

The arguments and assumptions made in the judgments concerning TGD parenting mirror many of the issues raised over two decades ago in litigation and public debates concerning the children of same-sex parents. ¹⁰³ The following extra-curial comments of former Family Court of Australia Chief Justice, Alastair Nicholson, demonstrate that the discourse of perceived ‘risk’, ‘harm’ and ‘difference’ has merely shifted from parental sexual orientation to gender identity:

Those who would emphasise the difference between same-sex and heterosexual families either unwittingly or deliberately cast lesbian and gay men’s relationships as fundamentally and uniformly different and foreign. Such an assumption is simply insupportable. … I am conscious that additional questions are seen to be posed when the courts evaluate lesbian and gay applicants and their proposals for the care of their children, that are not found in cases where a parent’s sexual orientation or that of their partner is heterosexual. ¹⁰⁴

In Parer, Harman FM referred to ‘the long line of decisions’ in Australian family law ‘dealing with a balance of public view, perception or stigma of a parent’s sexual preference or, in this case, gender, against the child’s best interests’. ¹⁰⁵ His Honour added: ‘I would like to think that the public, let alone the Court, have moved beyond such considerations.’ ¹⁰⁶ The confronting reality is that TGD individuals in Australia continue to experience daily discrimination, stigma, violence and abuse, with significant adverse effects on their mental health and wellbeing. ¹⁰⁷ As Charter et al have observed, ‘[g]iven the stigma already associated with being trans, … those who are both trans and parents exist at a vulnerable social intersection’. ¹⁰⁸

The role of law in contributing to social stigma for children of TGD families, by reinforcing a construction of the ‘ideal’ ¹⁰⁹ – heteronormative, cisgendered – family is arguably supported by the contrast drawn in Parer and Vitalis between the children’s experience of their parent’s gender affirmation, and other experiences of parent-child dynamics or changed family relationships. Harman FM in Parer described it as ‘over-simplistic’ to compare the children’s experience in this case with ‘simple teenage angst relating to affairs of their parents generally’, ¹¹⁰ thereby framing parental gender affirmation as unlike other, apparently innocuous, causes of children feeling ‘embarrassed’ by their parents. ¹¹¹

Similarly, Altobelli J in Vitalis distinguished ‘routine’ cases involving children experiencing ‘ambiguity’ in their family relationships. According to his Honour, while life changes such as death and the (re)formation of relationships following parental separation were ‘difficult family transitions that disrupt defined roles and expectations for children’, ‘many children are now accustomed to stepparents, foster parents, and same-sex parents’. ¹¹² By contrast, parental gender affirmation posed ‘particular challenges’, partly because ‘the way in which children interact with a mother and father is culturally scripted’. ¹¹³ Altobelli J described the family as ‘travelling through uncharted waters for them, and relatively uncharted waters for families in general where a parent is transitioning from one gender to another’. ¹¹⁴ In Vitalis [No 4], his Honour referred to the family’s ‘journey of change, some of which has been quite confronting and discombobulating’. ¹¹⁵

Yet in characterising parental gender affirmation as an unusual experience – one that lacks ‘any established social or legal script which either prescribes or describes how families adapt’ ¹¹⁶ and seemingly warrants privacy for children as they navigate changed family relationships – courts are liable to marginalise family forms that do not adhere to the ‘lines’ of the metaphorical script.

‘What to call a parent’: the role and importance of language

The third shared feature of the Australian jurisprudence which bears the potential to shape the visibility of TGD families in family law, is the important role of language. In Vitalis, Altobelli J observed that ‘simple and clear protocols about what to call a parent’ – mother and father – were ‘fundamentally called into challenge’. ¹¹⁷ The respondent had objected to his Honour’s initial description of the applicant as the children’s ‘second mother’, on the basis that ‘the children did not have two mothers, but are grieving the loss of their father’, and that there was no evidence that the children regarded the applicant as their mother. ¹¹⁸ For Altobelli J, implicit in that submission was ‘that to describe the applicant as the children’s mother was, in reality, aspirational’. ¹¹⁹ The children continued to refer to the applicant as ‘Dad’. His Honour speculated that their use of this term with ‘a masculine overtone’ was ‘the children’s attempt to reconcile that the person who was their male parent is now their female parent’, given the disruptions to ‘well-established gendered parental identities and roles’. ¹²⁰

The applicant in Parer was ‘significantly criticised’ during cross-examination for insisting that the children refer to her using ‘feminine’ (she/her) rather than ‘masculine’ (he/him) pronouns. ¹²¹ The applicant’s response to this criticism, which Harman FM ‘wholeheartedly’ accepted, was that ‘as a parent I have a role to educate my children. I have a duty to tell them what is right and wrong’. ¹²² His Honour considered that ‘some greater sensitivity and/or leniency might have been extended towards the children in their “misgendering”’ of the applicant, but also accepted that the applicant was ‘entirely entitled to expect the dignity and respect of all others … in referring to her in feminine terms’. ¹²³

Given their ‘very different viewpoints and expectations’, the parties in Neaves disagreed about how to define the applicant’s parental role. ¹²⁴ Interim consent orders had permitted the applicant to describe herself as ‘mummy Ms Neaves’ to the child, yet the respondent was unwilling to agree to this on a final basis. When asked in cross-examination if she understood that the respondent wanted deeply to be known as the child’s mother, the applicant explained that being known as the mother was equally important for her: ‘I am a woman and I am a parent and that makes me a mum.’ ¹²⁵ The respondent conceded that she found the applicant’s desire to ‘share the status of motherhood as disrespectful’, with Burt J forming the view that the respondent was ‘unable to overcome her own deeply held feeling’ that she was the child’s only mother. ¹²⁶ Her Honour continued: ‘[The child] will follow the lead of his parents, the two most important people in his life, as to the words by which he addresses each of them. He will not, in my view, be confused unless he is exposed to ongoing conflict as to the role of the applicant in his life.’ ¹²⁷

These three diverse illustrations from the judgments highlight the significance of language for the social affirmation of gender. An individual may affirm their gender through ‘outward social markers’, ¹²⁸ including by changing their name and pronouns and by requesting that others recognise their self-determined gender. ¹²⁹ The examples also suggest that when used in judicial narratives, ‘trans-inclusive’ and ‘trans-affirming’ language can be a ‘useful first step’ ¹³⁰ in representing ‘voices, perspectives and experiences that have been marginalised, omitted or ignored’ in the development of the law. ¹³¹

Conclusion: Rewriting the ‘script’ for children in TGD families

Reflecting on the ‘great focus upon the centrality’ of the applicant’s gender affirmation to the proceedings, Harman FM in Parer observed that

this case is nothing more than a parenting case between two parents who each have the best motives for their children and who express love and affection for them. … The fact that one of the two parents in this case has physically transitioned should not be seen as being of fundamental importance. ¹³²

Yet the judgments analysed in this article support a contrary conclusion: that parental gender affirmation and its effects upon the children have been ‘precisely’ ‘one of the critical issues’ in each case. ¹³³ Just as Australia’s family courts once viewed sexual orientation with ‘heightened suspicion’ and subjected same-sex parents to ‘unnecessary scrutiny’ in post-separation parenting disputes, ¹³⁴ so too has ‘the spotlight and focus’ ¹³⁵ of proceedings involving a TGD parent strayed from the children’s best interests onto the parent’s gender affirmation, as an issue of perceived novelty and complexity. In Vitalis [No 3], Altobelli J reflected that

this was the first time in a long judicial career that I have encountered this issue. In researching my reasons for judgment …, I did look for other cases dealing with this issue and found very few cases, firstly, and none that would actually provide any guidance in this particular case. It is possible, therefore, that this is one of those areas that, for whatever reason, has not been explored in the family law jurisprudence. This means that the issue is important, certainly for the children in this case, but it also possibly has a broader relevance to the transgender community. ¹³⁶

TGD families remain ‘on the … periphery’ of both Australian family law and research. ¹³⁷ A vital aspect of understanding the ‘nuances of experiences among children’ ¹³⁸ in this context is listening to and learning from the children of TGD parents. ¹³⁹ Only the Parer judgment engaged with and gave ‘some weight’ to the children’s views in the best interests assessment. ¹⁴⁰ In Neaves, the three-year-old child was held to be ‘too young to be able to express his views’. ¹⁴¹ In Vitalis [No 4], the court merely noted that extending the children’s time with the applicant was ‘consistent with their views’. ¹⁴²

If it is accepted that ‘perceptions … [and] assumptions’ shape the judicial reasoning process in the best interests exercise, ¹⁴³ then the judgments analysed also convey perceptions and normative assumptions about ‘the family’ as ‘the natural and fundamental group unit of society’. ¹⁴⁴ While family court proceedings form only a fragment of the ‘normative cultural scripts about gender and parenthood’ that TGD families must negotiate following parental separation, ¹⁴⁵ engaging in research with children may contribute to rewriting the ‘script’ for assessing best interests in post-separation parenting disputes. It may do so by reinforcing that TGD families ‘exist, are expanding, and require forms of legal recognition that reflect their lived experiences and needs’. ¹⁴⁶