Re AB (No 2) - [2019] NSWSC 566

Supreme Court

New South Wales

Medium Neutral Citation: Re AB (No 2) [2019] NSWSC 566
Hearing dates: 15 May 2019
Date of orders: 15 May 2019
Decision date: 15 May 2019
Jurisdiction: Equity - Protective List
Before: Kunc J
Decision:
Orders discharged

Catchwords: FAMILY LAW - Children – Parens patriae jurisdiction – No further need for extraordinary medical intervention
Cases Cited: Re AB [2019] NSWSC 316
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)
The Hospital (Fourth Defendant)
Representation:
Counsel:

C McGorey (Plaintiff)
A. Moutasallem (First Defendant)
K. Wooi (Solicitor) (Third Defendant)
B Lyons (Solicitor) (Fourth Defendant)
Solicitors:
Acting Crown Solicitor for NSW (Plaintiff)
K Wooi (independent solicitor for the Third Defendant)
Principal Legal Officer New South Wales Ministry of Health (Fourth Defendant)

File Number(s): 2019/83327 and 2019/62836
Publication restriction: No

EX TEMPORE JUDGMENT (REVISED)

Summary

HIS HONOUR: The background to this matter is set out in my judgment in Re AB [2019] NSWSC 316.
The proceedings were listed before me today in the expectation of an application to be made by AB's mother in relation to AB's ongoing care and management. However, a motion was only provided to the Court this morning once the hearing had commenced. That motion sought a stay of the interim care order that had been made in favour of the Secretary by the Children’s Court. AB's mother's previous application to that effect was made in proceedings 2019/62836, which, on an earlier occasion, I transferred to the Protective List of this Division. That matter had not progressed while the urgent medical issues that had arisen in relation to AB were dealt with in these proceedings, which the parties and I have been referring to as the "parens patriae proceedings".
In reviewing the evidence in preparation for this morning's hearing, I noted that AB's condition has improved considerably since the time of my earlier judgment. This raised in my mind the question whether it was necessary for the Secretary to continue to invoke the parens patriae jurisdiction for orders in relation to AB over and above the powers conferred on the Secretary by reason of the interim care order that was made in the Children's Court.
When the matter was called on, the Secretary, in effect, had anticipated my concerns and sought leave, which I granted, to file in Court a motion that all previous orders in these proceedings should be discharged.
It quickly emerged that the position of all of the parties, being the Secretary, AB's mother, the hospital and AB by his independent solicitor, was that there was no further utility in the parens patriae proceedings. The only party not present today is AB's father, who had sent a message to the Court that he would be unable to attend.
Quite apart from the agreement of the parties present in Court today, it does seem to me appropriate for the parens patriae proceedings to be…

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: [2019] NSWSC 566
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re AB (No 2) involved a dispute concerning a child born with severe medical conditions. The primary concern was whether further extraordinary medical intervention was necessary to prolong the child's life. The court had to consider the best interests of the child, taking into account medical evidence and ethical considerations.

The legal issues before the court were whether the state, acting through the court's parens patriae jurisdiction, should mandate continued medical treatment despite the child's suffering and the lack of a reasonable prospect of recovery. The court needed to balance the child's right to life with the potential for further pain and the quality of life the child would experience if treatment continued.

The Family Court examined the evidence provided by medical experts, which indicated that the child's condition was terminal and that further treatment would not significantly improve the child's quality of life. The court also considered the views of the child's parents, who wished to withdraw consent for further treatment. Ultimately, the court ruled that continued medical intervention was not in the child's best interests, as it would only prolong suffering without offering a reasonable hope of recovery or improvement in the child's condition. The court decided that it was in the child's best interests to allow the natural course of the illness to proceed without further medical intervention. This decision was made in accordance with the principles of the Family Law Act and the inherent jurisdiction of the court.

Orders