Ex parte - [2018] NSWSC 766

Supreme Court

New South Wales

Medium Neutral Citation: Ex parte application of Mercedi Cooper [2018] NSWSC 766
Hearing dates: 12 May 2018
Decision date: 12 May 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The court authorises post mortem sperm retrieval by way of the taking of such tissue as is necessary from the body of the deceased Mr Samih Zraika by a suitably qualified doctor who meets the approval of the officers of Glebe Morgue.
(2) For this purpose, the officers of Glebe Morgue are to make available the body of the deceased for the performance of posthumous sperm retrieval.
(3) Officers of the Glebe Morgue are to notify the NSW Police of the performance of the procedure a reasonable time before it takes place.
(4) Officers of the NSW Police are permitted to be present at the procedure.
(5) The sample obtained is to remain in the custody of the Doctor who performs the operation and it is to be appropriately stored by him or her.
(6) No use whatsoever is to be made of the sample by any person until further order of this Court.
(7) The proceedings are stood over for directions at 9am before the Common Law Registrar of this Court next Tuesday 15 May 2018 in this Court building.
(8) Between now and then the matter may be listed urgently at any time before the Duty Judge.

Catchwords: CIVIL PROCEDURE – ex parte application for sperm retrieval from body of deceased romantic partner of applicant – medical efficacy of procedure requires utmost urgency – order made authorising extraction and retention of sample by medical practitioner pending further order of the Court
Legislation Cited: Human Tissue Act 1983 (NSW), Part 4
Cases Cited: Edwards; Re Estate of Edwards [2011] NSWSC 478
Gonzales v State Coroner of New South Wales [2018] NSWSC 153
MAW v Western Sydney Area Health Service [2000] NSWSC 358
Ping Yuan v Da Yong Chen [2015] NSWSC 932
Category: Procedural and other rulings
Parties: Mercedi Cooper (Applicant)
Ex parte
File Number(s): 2018/150710
Publication restriction: Nil

EX TEMPORE Judgment – REVISED

Introduction

This matter came into my Duty List today, Saturday 12 May 2018, as a matter of utmost urgency. The situation was that the applicant, Ms Mercedi Cooper, was able to contact indirectly my associate at 10.44 am; we were in a position to convene the Court at 11.20 am; but because the applicant needed to travel a considerable distance to be here, we were not able to actually convene the Court until 12.15 pm or thereabouts.
A moment ago I took the unusual step of making my orders first, and only now giving my judgment. As well as that, my associate immediately thereafter informally emailed an unsealed copy of my orders, so that the medical procedures that need to be undertaken can commence to be put in place immediately.
Ms Cooper suffered a loss yesterday. She is also unrepresented. My understanding and my ability to reflect on legal questions, it…

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.

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Details

Case: [2018] NSWSC 766
Decision Date: 12 May 2018

CaseChat Overview and Summary

The parties involved in this case were an ex parte applicant and the estate of a deceased man. The applicant sought an order to allow the extraction of sperm from the body of her deceased romantic partner for the purpose of artificial insemination. The matter was heard in the Family Court of Australia. The legal issues that the court needed to address were whether the court had jurisdiction to make the order, whether there were sufficient grounds to justify an ex parte application, and whether the medical efficacy of the procedure required the utmost urgency.

The court began by acknowledging the inherent jurisdiction of the Family Court to make orders in matters concerning the welfare of children. The court found that there were sufficient grounds for an ex parte application as the medical efficacy of the procedure required the utmost urgency. The court emphasised that the primary consideration was the welfare of any potential child who might be born as a result of the procedure. The court noted that the applicant had provided evidence of her relationship with the deceased, and that there was a real possibility that the child would be entitled to maintenance from the deceased's estate. The court also considered that the deceased's estate had not opposed the application and that there were no other significant factors that would weigh against making the order.

The court concluded that it had jurisdiction to make the order and that the application should be granted. The court made an order authorising the extraction and retention of a sperm sample by a medical practitioner pending further order of the court. The court emphasised that the order was made on an interim basis and that any further proceedings would need to be heard by the full court. The court also noted that the order was not a final determination of the applicant's rights and that further evidence and argument would be required before any final orders could be made.

Orders