DOCS v Y

Case [1999] NSWSC 644 30 June 1999

No judgment structure available for this case.

Type to search within this case.

CITATION: DoCS v Y [1999] NSWSC 644

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2329/99

HEARING DATE(S): 12, 13, 14, 17 and 24 May 1999

JUDGMENT DATE:
30 June 1999

PARTIES :

Director General, New South Wales Department of Community Services (P)
v
Y and Z, parents of X (D)

JUDGMENT OF: Austin J

COUNSEL : G Moore ( 14 May 1999) (P)
S Norton (24 May 1999) (P)
G Bartley (14 May 1999) (D)
P Gerber (24 May 1999) (D)
J C Stevenson (14 & 24 May 1999) (Special Representative)

SOLICITORS: I V Knight, Crown Solicitor (P)
Leonie Miller (D)
Kathryn Renshall (Special Representative)

CATCHWORDS: Family law - child welfare - anorexic child - custody and care of child - wardship of Court - Supreme Court's jurisdiction to make orders - order to authorise medical treatment contrary to child's wishes - order to exclude access by parents - order to authorise reasonable force

ACTS CITED: Children (Care and Protection) Act 1987 (NSW) ss 72, 77, 88 and 96
Commonwealth Powers (Family Law - Children) Act 1986 (NSW) s 3
Family Law Act 1975 (Cth) ss 69ZE, 69ZF & 69ZK
Supreme Court Act 1970 (NSW) ss 23, 53

CASES CITED: B v Director-General Department of Community Services (Supreme Court of New South Wales, No. 3308/86, McLelland J, 5 December 1986, unreported)
Darling v Darling (Supreme Court of New South Wales, No. 5385/86, Kearney J, 16 July 1987, unreported)
Director-General Department of Community Services v Australian Broadcasting Corporation (Supreme Court of New South Wales, No. 2265/96, McLelland J, 4 June 1996, unreported)
Ensby v Director-General Department of Community Services (Supreme Court of New South Wales, No. 4319/93, Bryson J, 21 April 1994, unreported)
Fountain v Alexander (1982) 150 CLR 615
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112
K v Minister for Youth and Community Services [1982] 1 NSWLR 311
Morahan v Morahan (Supreme Court of New South Wales, No. 1405/88, Young J, 31 March 1988, unreported)
R v Gyngall [1893] 2 QB 232
Re C [1997] 2 FLR 180
Re E v E [1986] 2 SCR 407
Re J [1992] 3 WLR 507
Re R [1991] 3 WLR 592
Re S (an infant) [1967] 1 All ER 202
Re W [1992] 3 WLR 758
Secretary, Department of Health and Community Services v JWB & SMB (Marion’s case) (1992) 175 CLR 218
Wellesley v Duke of Beaufort (1827) 2 Russ 1
Wellesley v Wellesley (1928) 2 Bli NS 124

DECISION: Orders made as sought by plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 30 JUNE 1999
2329/99 - DoCS v Y AND Z, PARENTS OF X

JUDGMENT (published to the parties 30 June 1999; revised and published generally 7 July 1999)

1 HIS HONOUR: These proceedings began by summons filed on 12 May 1999. The plaintiff sought orders that X be made a ward of this Court under the custody, care and control of the plaintiff, and that she be moved to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DOCS v Y

Details

AGLC: DOCS v Y [1999] NSWSC 644
Case: [1999] NSWSC 644
Decision Date: 30 June 1999

CaseChat Overview and Summary

The case involved the Department of Community Services (DOCS) and Y, a child who had been diagnosed with anorexia nervosa. The matter was heard in the Supreme Court of New South Wales. The primary concern was the welfare and treatment of the child, who was in a life-threatening condition due to their refusal to eat. The court was tasked with determining the appropriate care and custody arrangements for the child, including whether the Supreme Court had the jurisdiction to make orders authorising medical treatment against the child's wishes, excluding the parents' access, and permitting the use of reasonable force.

The central legal issues were whether the Supreme Court had the requisite jurisdiction to make such orders and if such orders were in the best interests of the child. The court examined the statutory provisions and previous case law concerning the powers of the court in child welfare matters. It considered whether the severe nature of the child's condition justified intervention that would typically be considered a breach of personal autonomy.

The court concluded that it did have the jurisdiction to make the orders in question, given the extraordinary circumstances of the case. It found that the welfare of the child was paramount and that the severe anorexia constituted a significant risk to the child's health and life. The court authorised the medical treatment against the child's wishes, excluded the parents' access to prevent any interference with the treatment, and permitted the use of reasonable force to ensure the administration of the treatment. The court emphasised that these measures were necessary to preserve the child's life and health, and that they were in the child's best interests.

The final orders included authorisation for the medical treatment, exclusion of the parents from contact with the child during the treatment period, and permission for the use of reasonable force to facilitate the treatment. The court also appointed a guardian to oversee the child's care and ensure that the treatment was administered appropriately. The orders were intended to protect the child and provide a path towards recovery.

Orders