The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 291 relationship’. In deciding whether such a relationship exists, all the circumstances of the relationship must be considered, particularly its financial and social aspects, the nature of the household, any sexual relationship between the people, and the nature of their commitment to each other. As a result of the Commonwealth reforms discussed above, since 1 July 2009 the Social Security Act 1991 (Cth) treats same-sex couples in the same way as heterosexual de facto couples and married couples. A person living in a same-sex relationship who is receiving, or applying to receive, Centrelink payments must advise Centrelink of their same-sex de facto relationship. A person who disagrees with a Centrelink decision may apply for that decision to be reviewed by writing to Centrelink (see www.servicesaustralia. gov.au/individuals/forms/ss351) . If the original decision is upheld, the person may request that the decision be reviewed by the Administrative Appeals Tribunal ( AAT ). A request for a review can be made via the AAT’s website, in person, or by telephone (see ‘Contacts’ at the end of this chapter). Transgender matters Gender and relationship recognition Prior to 2017, the Marriage Act 1961 (Cth) defined marriage as ‘the union of a man and a woman to the exclusion of all others’. However, on 9 December 2017, the Act was updated to allow for marriage equality, and the definition was updated to define marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’, as shown in section 2A of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Australian courts had historically adopted the UK attitude that gender is determined at birth and cannot be altered (see Corbett v Corbett [1970] 2 All ER 33). However, the Corbett  ruling was overturned in Australia in the appeal case of Re Kevin [2003] FamCA 94, where the court found that transgender individuals are legally allowed to marry according to their new gender. In May 2018, the Victorian Parliament passed legislation that meant married transgender people no longer have to divorce to change the sex on their birth certificate. New South Wales has passed similar legislation. Special medical procedures ‘Gender dysphoria’ is a condition where a person’s sense of their own gender contradicts their biological sex. Hormonal treatment for gender dysphoria in young people involves two stages; surgical intervention is the third stage: • Stage one treatment: puberty blocking medication (fully reversible); • Stage two treatment: cross-sex hormone treatment (partly irreversible); • Stage three treatment: surgical treatment, which includes (but is not limited to) chest reconstructive surgery, phalloplasty, hysterectomy, bilateral salpingectomy, creation of the neovagina and vaginoplasty. In Australia, court approval is not needed to access stage one treatment; parental consent is sufficient (see Re Jamie [2013] FamCAFC 110). However, accessing stage two treatment has historically been less straightforward. The courts have classified stage two treatment as a form of special medical procedure that can only be performed on children with court approval. Previously, there were two avenues that could be followed to access stage two treatment: 1 In Re Jamie , the court decided that stage two treatment is a non-therapeutic treatment (and therefore is beyond the scope of parental consent). This follows the High Court precedent of the case of Re Marion ( Secretary, Department of Health and Community Services) v JWB and SMB (1992) 175 CLR 218, where the court decided that non- therapeutic treatment (e.g. sterilisation) requires a court order, and falls outside the ordinary scope of parental power to consent tomedical treatment. 2 The child and their family may seek a court order declaring that the child is ‘Gillick competent’. A court will deem a child to be Gillick competent if it believes that the child is sufficiently intelligent and mature to fully understand what is involved in stage two treatment. If a court decides that a child is Gillick competent, the child has authority to authorise stage two gender dysphoria treatment, as was the case in Re Spencer [2014] FamCA 310. In the case of Re Kelvin [2017] FamCAFC 258, the Full Court of the Family Court handed down its landmark decision confirming that court authorisation is no longer required for stage two