NAZARI and HEALTH SERVICE A

[2019] FCWA 275

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: NAZARI and HEALTH SERVICE A [2019] FCWA 275

CORAM: TYSON J

HEARD: 12 DECEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 9561 of 2019

BETWEEN: MR AND MRS NAZARI

Applicants

AND

HEALTH SERVICE A

Respondent

Catchwords:

FAMILY LAW – Special medical procedure - Consent orders to remove life support for a child – Case turns on its facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicants	:	Ms J
Respondent	:	Ms Eagling and Mr Harwood

Solicitors:

Applicants	:	Legal Aid
Respondent	:	State Solicitors Office

Case(s) referred to in decision(s):

Re

Baby R (Life Support) [2015] FamCA 449

Sean and Russell (Special medical procedures) [2010] FamCA 948

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nazari has been approved by the Family Court of Western Australia pursuant to

s 121(9)(g) of the Family Law Act 1975 (Cth).

1 [Baby Z] was born [in late] 2019 by way of an emergency caesarean. Baby Z’s parents are [Mr and Mrs Nazari]. From the time Baby Z was born, it appears he was placed on life support at [Hospital A] where he remains. According to the father the hospital conducted MRI scans 72 hours after Baby Z’s birth, which revealed brain damage. The hospital advised the parents that Baby Z’s organs were going to fail and deteriorate in the coming days, however the father says this has not occurred.

2 On 9 December 2019 the hospital conducted a further brain activity assessment on Baby Z and informed the parents there was no activity, meaning that sadly, he was brain dead. The father says both he and the mother have, unsurprisingly, been struggling to come to terms with that medical advice. It seems, according to the father’s evidence, there have been a number of meetings between the parents and Baby Z’s treating medical staff, however the father deposed that he felt the parents had not been given an adequate explanation as to what went wrong with Baby Z’s birth.

3 On Tuesday 10 December 2019 the parents and other family members met with staff at the hospital, together with the hospital’s lawyers. The father says the hospital advised they did not legally require the parents’ consent and they intended to terminate life support at 3.15 pm that day. The parents advised they did not consent and asked for further time in which to seek legal advice. The hospital told the parents they would delay terminating life support until 11 am today, 12 December 2019. That was confirmed in correspondence from the [Health Service A], which is in evidence.

4 The father says following that meeting the hospital discontinued Baby Z’s treatments, with the exception of the provision of glucose, without informing the parents. The father is unclear whether some treatments have since been reinstated.

5 The father says his wife remains in hospital, where she is receiving medical treatment: she nearly died during child-birth and is in a distressed state.

6 The parents are Muslim and according to the father, they consulted with an Iman who told them it would not be appropriate to turn off Baby Z’s life support as long as his heart was functioning and his organs were working. According to the Iman, the parents should wait until Baby Z’s organs failed or his soul left his body before terminating life support.

7 The matter came before the Court this morning on the father’s application filed jointly on behalf of himself and his wife, seeking firstly that the matter be listed urgently and, secondly, an order restraining the Department of Health involved in the care of Baby Z from discontinuing life support or otherwise ceasing treatment for Baby Z without the written consent of both parents. In addition, the father sought an order for equal shared parental responsibility. The initiating application is supported by an affidavit of the father, both of which were accepted for filing today.

8 The application was listed on short notice this morning. Ms [J] from the Legal Aid duty lawyer service has appeared on behalf of the father who is present in Court, accompanied by a support person. She has confirmed she appears for both applicants.

9 Ms Eagling from the State Solicitor’s Office appeared on behalf of the respondent this morning, indicating the respondent should be properly recorded as the Health Service A.

10 At the commencement of the hearing Ms Eagling confirmed the respondent had provided an undertaking not to terminate the provision of life support for Baby Z given the matter was now before the Court. She advised that two of Baby Z’s treating medical practitioners were on their way to Court for the purposes of giving oral evidence, which evidence would include that two tests had been conducted of Baby Z’s brain functioning; that two consultant neonatal specialists had confirmed that Baby Z was brain dead and, from the hospital’s perspective, he was now deceased. She raised the question of the Court’s jurisdiction to make an order in circumstances where Baby Z was, according to the respondent, no longer alive. She also raised issues about the parents’ application which in her submissions, spoke more to the interests of the parents, in terms of their religious beliefs and health.

11 I indicated I would stand the matter down in light of the undertaking provided, to allow the parties an opportunity to confer and provide time for the proposed witnesses on behalf of the respondent to attend Court.

12 [Ms J] confirmed there was no objection to the proposed course of action but foreshadowed she would be pressing for an injunction on behalf of the applicants and submitted there was no prejudice to the hospital in granting the injunction, and there were authorities to support such an order.

13 When the matter was recalled this afternoon, to the great credit of the parties, and no doubt with the benefit of considerable assistance from their counsel, I have been provided with a minute of final consent orders.

14 The minute is signed by the father. It has also been signed by Ms J on behalf of the mother. Ms J informed the Court that she has spoken to the mother on the telephone, she has read the contents of the minute to her, and the mother has confirmed her consent to the proposed orders.

15 This afternoon, Mr Harwood also appeared with Ms Eagling, on behalf of the respondent. They advised the Court that they no longer sought leave to lead oral evidence in light of the agreement reached. I was informed that present in the back of the Court, are a number of medical practitioners involved with the care of Baby Z. I thank them for their presence today and for their willingness to attend Court at clearly what was very short notice.

16 No objection was raised to the matter proceeding despite the short notice, the error in terms of the identification of the respondent nor any other procedural matters. I am prepared to proceed on the basis that the respondent has been properly named, in the absence of any objection raised by the respondent, given the urgent circumstances.

17 The agreement that has been reached between the parties is on the basis that there is no concession on behalf of the respondent to the jurisdiction of the Court to make the orders that are sought.

18 The consent minute provides as follows:

Without the Respondent conceding to the jurisdiction of the Family Court of Western Australia in this matter, in relation to the child of the marriage [BABY Z] born [in late] 2019 [(“Baby Z”)] the parties agree to the following orders made by consent:

1.The Respondent will not remove artificial mechanical respiration for [Baby Z] until 10am Thursday 19 December 2019 unless an earlier date is agreed by all parties.

2.The Respondent will maintain the current care regime for [Baby Z] and will not escalate his care beyond what is being provided currently unless otherwise agreed by all parties.

3.The Respondent will arrange a meeting between [Baby Z’s] parents and relevant representatives of the Respondent, if possible to include the consultant obstetrician and staff involved on the day of [Baby Z’s] birth, in relation to the circumstances of [Baby Z’s] birth. The Respondent will use reasonable endeavours to arrange that meeting prior to 19 December 2019.

4.The Respondent will use reasonable endeavours to arrange an autopsy on [Baby Z’s] brain, following removal of artificial mechanical respiration, on Thursday 19 December 2019 or as soon as possible thereafter. If considered appropriate by the pathologist such autopsy also extend to a physical examination of the skull.

5.The Form 1 Application of the Applicant parents be and is hereby dismissed.

19 Notwithstanding the respondent’s position as recorded in the recitals, I am prepared to proceed on the basis that I have jurisdiction under the Family Law Act 1975 (Cth). Baby Z’s parents were married and accordingly the matter is to be determined under the Act.

20 In my view, s 67ZC, which sometimes referred to as the welfare power, and/or s 64B, which is a parenting power under the Act, provide the Court with jurisdiction.

21 The power to be exercised in such circumstances is not without complexity, as has been identified by Murphy J in the case of Re:Sean & Russell (Special Medical Procedures) [2010] FamCA 948, as cited with approval by the former Chief Justice Bryant in Re:Baby R (Life Support) [2015] FamCA 449.

22 Justice Murphy in Re Sean (supra) said:

67.It was recognised in Marion’s Case that there is an “unclear dividing line” between cases which must be authorised by a court and those which may not. It is by no means fanciful that parents may seek to have the court give approval (or disapproval) to a decision which falls within the limits of their parental responsibility but over which they have agonised and may be ambivalent.

68.Equally, at or near this “unclear dividing line” legitimate doubt might surround who may authorise a procedure; doctors can legitimately claim to need certainty when the consequences of proceeding in the absence of proper authority are potentially very severe.

…

84.Where a decision falls properly within the ambit of parental responsibility, the authorisation or consent to a procedure is a parental decision. In saying that, I do not fail to recognise that the process of decision-making (likely, in many cases to involve a serious of separate decisions) is, of course, exquisitely difficult and, in many cases, likely to involve much pain and proper prevarication.

85.As observed by the High Court, the immediate interests of parents may in some cases conflict with the long-term interests of children currently unable to speak or decide meaningfully for themselves. So, too, the difficult decisions involved are likely to involve the intersection of a number of moral, ethical and clinical dilemmas and decisions for doctors as well as parents.

…

91.In my view, the law should tread very lightly in seeking to intrude in, or impose itself upon, those decisions. It would in my respectful view be sad indeed if the courtroom was to replace a caring, holistic environment within which approach by parents and doctors alike could deal with the (admittedly extremely difficult) medical and other decisions that need to be made.

23 These statements by Murphy J were quoted with approval by Bryant CJ in Re: Baby R (Life Support) (supra), in which her Honour heard an application by the father of a baby girl, which included urgent injunctions restraining the hospital treating the baby from discontinuing life support. The application was opposed by the mother and the hospital. During the course of the proceedings, the father reached the conclusion, which the mother had already done, that life support for the baby should be ceased and the Court was asked to make orders by consent.

24 Her Honour considered the question about the termination of life support was within the scope of parental responsibility, because had the parents not been in dispute, they would have made a decision in concert with the medical team. In that matter, the parties agreed that the Court had jurisdiction to make the orders sought pursuant to s 67ZC and/or s 64B of the Act.

25 Bryant CJ found the power to be exercised lay in s 64B, which set out the matters with which a parenting order may deal, including “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.[1]

[1] Section 64B(2)(i).

26 I did not hear detailed submissions in relation to jurisdiction from either counsel, and neither sought to do so. While I observe the respondent does not concede that the Court has jurisdiction, they agree to the orders which are set out in full.

27 I am prepared to proceed on the basis that I have jurisdiction under either s 64B and/or s 67ZC. I do not consider it is necessary to set out a more detailed consideration in the present circumstances.

28 The parents have agreed, in consultation with Baby Z’s treating medical practitioners, about the steps now to be taken. Fortunately and in incredibly challenging circumstances they have agreed on arrangements in the best interests of Baby Z. In the circumstances, I consider it to be in Baby Z’s best interests to make the orders sought by the parents and the hospital, based on the available evidence before the Court.

29 Before pronouncing orders as agreed, I wish to acknowledge my gratitude to both parties’ counsel who have conducted what have undoubtedly been difficult and sensitive discussions today. It is to the great credit of everybody involved that they have been able to come to an agreement.

30 I also wish to acknowledge my gratitude to the many members of the hospital who have been involved in the care of Baby Z and who are present in Court today.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

8 JANUARY 2020