Re: Baby A - [2008] FamCA 417

FAMILY COURT OF AUSTRALIA

RE: BABY A

[2008] FamCA 417

FAMILY LAW – MEDICAL PROCEDURES

Family Law Act 1975 (Cth)

Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218
Minister for Immigration and Multicultural and Indigenous Affairs & B and B (2004) 219 CLR 365

APPLICANTS:

Baby A’s parents

RESPONDENT:

Office of the Public Advocate

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5105

2008

DATE DELIVERED:

6 June 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

6 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Ms M.A. Hartley

SOLICITOR FOR THE APPLICANTS:

Lander and Rogers

COUNSEL FOR THE RESPONDENT:

Ms K. Nolan

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms S.C. Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Victoria Legal Aid

Orders

That leave shall be granted to the applicants to amend their application filed 5 June 2008 by adding paragraph 5A as follows:
“In the alternative a declaration that it is lawful for the parents to consent to the treatment for their child.”
That the applicant parents are authorised to consent on behalf of their child BABY A born in May 2008 to the administration of drug X as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.
That the administration of drug X to the child BABY A is authorised as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.
That in the alternative I declare that it is lawful for the parents to consent to the treatment for the child BABY A by administration of drug X as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.
There shall be liberty to apply on short notice.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the appointment of the Independent Children's Lawyer shall be discharged.
That my reasons for judgment given this day shall be urgently transcribed and a copy made available to each party.
That the applicants shall have leave to serve a sealed copy of this order on all persons and/or organisations relevant to the advancement of the child’s interest.

IT IS NOTED

That the Southern Health Human Research Ethics Committee A approval for the treatment was given subject to the conditions as set out in paragraph 2.2 of the Minutes contained in Exhibit 8 to the affidavit of MS T sworn 6 June 2008.
That publication of this judgment under the pseudonym…

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.

Continue reading Re: Baby A

Details

AGLC: Re: Baby A [2008] FamCA 417
Case: [2008] FamCA 417
Decision Date: 6 June 2008

CaseChat Overview and Summary

In *Re: Baby A*, Dessau J of the Supreme Court of Victoria considered an application by the parents of Baby A, a child born in May 2008, concerning the administration of a drug, referred to as drug X, for her medical condition. The parents sought authorisation to consent to this treatment on behalf of their child.

The central legal issue before the court was whether the parents could lawfully consent to the ongoing administration of drug X to their child, Baby A, as treatment for her condition. This involved determining the court's power to authorise such consent and treatment, particularly in circumstances where the parents sought a declaration to that effect.

Dessau J granted the applicants leave to amend their application to include an alternative claim for a declaration that it is lawful for the parents to consent to the treatment. The court ultimately made orders authorising the parents to consent to the administration of drug X on a continuing basis, subject to the medical opinion of the child's treating practitioners. In the alternative, the court declared that it was lawful for the parents to consent to this treatment. The court also discharged the appointment of the Independent Children's Lawyer.

Orders

Orders of the court

That leave shall be granted to the applicants to amend their application filed 5 June 2008 by adding paragraph 5A as follows:

“In the alternative a declaration that it is lawful for the parents to consent to the treatment for their child.”

That the applicant parents are authorised to consent on behalf of their child BABY A born in May 2008 to the administration of drug X as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.

That the administration of drug X to the child BABY A is authorised as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.

That in the alternative I declare that it is lawful for the parents to consent to the treatment for the child BABY A by administration of drug X as treatment for her condition on a continuing basis subject to the medical opinion of the child’s treating medical practitioners from time to time.

There shall be liberty to apply on short notice.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

That the appointment of the Independent Children's Lawyer shall be discharged.

That my reasons for judgment given this day shall be urgently transcribed and a copy made available to each party.

That the applicants shall have leave to serve a sealed copy of this order on all persons and/or organisations relevant to the advancement of the child’s interest.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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