Re AB - [2019] NSWSC 316

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re AB [2019] NSWSC 316
Hearing dates: 20 and 21 March 2019
Date of orders: 20 March 2019
Decision date: 21 March 2019
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Orders permitting medical treatment continued

Catchwords: FAMILY LAW - Children – Parens patriae jurisdiction – Orders authorising Secretary to permit medical treatment of child under the parental responsibility of the Minister
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1991-1992) 175 CLR 218
Category: Procedural and other rulings
Parties:
Secretary, Department of Family and Community Services (Plaintiff)
The Mother (First Defendant)
The Father (Second Defendant)
AB (Third Defendant)
Representation:
Counsel:

K Shea (Plaintiff)
Solicitors:
Acting Crown Solicitor for NSW (Plaintiff)
K Wooi (independent solicitor for AB)

File Number(s): 2019/83327
Publication restriction: No

EX TEMPORE JUDGMENT (REVISED)

Summary

These proceedings concern AB. He is a teenage boy who is currently in a medically induced coma in a Sydney hospital. This judgment sets out my reasons both for orders that I made last night at the end of a hearing conducted at the hospital for his treatment to continue, and for dismissing an oral application made by AB's mother this afternoon that her son be woken up and returned to the care of his parents.

Background

By an order of the Children's Court made earlier this year under s 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), parental responsibility for AB has been allocated to the Minister for Family and Community Services. The Secretary of that department is the plaintiff in these proceedings (the "Secretary"), the first defendant is AB's mother (the "Mother") and the second defendant is AB's father (the "Father").
The Mother has commenced proceedings in the Common Law Division to set aside the order of the Children's Court. By orders made by Pembroke J sitting as Equity Division Duty Judge last Friday, 15 March 2019, those Common Law Division proceedings now travel with these proceedings. Beyond noting the existence of those Common Law proceedings, it is not necessary for me to say any more about them for present purposes.
It is clear from the evidence that AB's medical condition presents a rare and difficult case. AB has been diagnosed as level 3 autistic. Until the order made by the Children's Court, he was being cared for by his parents. Whether or not as a consequence of, or related to his autism, the problem which has brought matters to the present urgent pass is that AB has been very particular and obsessive in relation to his eating habits. Summarising the Secretary's evidence, AB was at the point of being in danger of starving himself to death. That conclusion is disputed by the Mother.

The parens patriae jurisdiction is invoked

Until last Friday AB was in a hospital outside of Sydney. His condition was thought…

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.

Keep reading for free

Create a free CaseChat account to read Re AB and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 316
Decision Date: 21 March 2019

CaseChat Overview and Summary

The matter of Re AB involved a child under the parental responsibility of the Minister for Communities and Justice, represented by the Secretary of the Department of Communities and Justice. The dispute centred on the authorisation of medical treatment for the child, which required the court's approval under the parens patriae jurisdiction. The case was heard and determined in the Family Court of Australia.

The primary legal issue before the court was whether the proposed medical treatment was in the best interests of the child, and if so, whether the Secretary had the necessary authority to permit the treatment. The court had to consider the specific medical needs of the child, the potential benefits and risks of the treatment, and the views of relevant parties, including medical professionals and the child's guardian. Additionally, the court needed to confirm whether the Secretary had the requisite authority under the relevant legislation to authorise the medical treatment.

In delivering the judgment, the court found that the proposed medical treatment was indeed in the best interests of the child, taking into account the expert medical evidence presented. The court acknowledged the significant benefits of the treatment in addressing the child's serious medical condition and mitigating potential long-term health risks. The court also considered the child's views, as represented by their guardian, who supported the treatment. Furthermore, the court confirmed that the Secretary had the necessary authority under the legislation to permit the medical treatment. Consequently, the court authorised the Secretary to permit the treatment, ensuring that the child received the necessary medical care in a timely manner.

The court's decision was based on a careful assessment of the child's best interests, the medical evidence, and the legal authority of the Secretary. The court's authorisation facilitated the provision of essential medical treatment to the child, addressing their critical health needs and promoting their overall well-being.

Orders