Doorna and Z Hospital

[2010] FamCA 604

FAMILY COURT OF AUSTRALIA

DOORNA & Z HOSPITAL [2010] FamCA 604

FAMILY LAW – CHILDREN – Injunction – Life saving procedure

Family Law Act 1975 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs & B [2004] HCA 20

APPLICANT: Mr Doorna

RESPONDENT: Z Hospital

FILE NUMBER: MLC 5976 of 2010

DATE DELIVERED: 28 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC with Mr Robinson

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Foy

SOLICITOR FOR THE RESPONDENT: Health Legal

Orders

1. That until further order the Z Hospital by its Board of Directors, servants and agents, employees including but not limited to Dr H, Dr S, and Dr A and any other Doctor, Nurse and or treating medical practitioner involved in the care of the child X born … September 2007 (“the child”) be and are hereby retrained from discontinuing ongoing kidney dialysis treatment for the child.

2. That until further order the Z Hospital by its Board of Directors, servants and agents, employees not limited to, Dr H, Dr S and Dr A perform all treatment necessary to preserve the health and wellbeing of the child including but not limited to administering kidney dialysis treatment.

3. That the issue of the Court’s jurisdiction to make any of the orders referred to is adjourned to 10.00am on Thursday 1 June 2010.

IT IS NOTED that publication of this judgment under the pseudonym Doorna & Z Hospital is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5976 of 2010

MR DOORNA

Applicant

And

Z HOSPITAL

Respondent

REASONS FOR JUDGMENT

1. This is an oral application made at 4.30 pm on Monday 28 June in the duty list.  The very brief evidence I have heard is from the father of a child who is almost three years of age, who it is said is currently in the Z Hospital and on a dialysis machine, which clearly means that he is being kept alive by artificial means.  There is a dispute between the parents and the hospital about whether or not the dialysis process should be discontinued.  It is clear that, if that occurs, the Z Hospital’s view, as articulated to the parents, is that the child will die.  The question is whether or not that is appropriate in all of the circumstances. 

2. There are some disputes as to whether this is the appropriate forum for that issue to be litigated. Section 68B of the Family Law Act 1975 (Cth) (“the Act”) provides the power of the court in proceedings for an injunction in relation to a child, to make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction for the personal protection of the child. Subsection (2) goes on to say that a court may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so. That injunction may be granted unconditionally or on terms.

3. The other provision relates to the court’s parens patriae jurisdiction, but as I have indicated in discussion with counsel, that is clearly not unlimited, as is indicated in the decision of the Minister for Immigration and Multicultural and Indigenous Affairs & B [2004] HCA 20, where the High Court held unanimously that there was no jurisdiction under the Act to order children to be released from immigration detention. The extent of the parens patriae jurisdiction has been long argued.

4. I am not entirely confident about the jurisdiction of the court in relation to making an injunctive order of this nature without the hospital having been given an opportunity to argue it fully.  I do not have a formal written application, nor any written affidavit material, but in the circumstances, I suspect the appropriate course of action is to have the injunction made pending the determination of whether or not the court has power to make the orders sought by the parents.  In those circumstances, I will make the orders as I have indicated, have the matter come back before me on Thursday morning at 10 am, and the hospital should be notified in the meantime of the injunction having been made and expedited, and for them to be given an opportunity as to which, on the subject of, first whether they wish to be heard, but secondly, whether the court has jurisdiction.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 July 2010