Re: Baby D
[2011] FamCA 14
•13 January 2011
FAMILY COURT OF AUSTRALIA
| RE: BABY D | [2011] FamCA 14 |
| FAMILY LAW – PRACTICE AND PROCEDURE |
| APPLICANT: | The Parents |
| RESPONDENT: | A Hospital |
| INDEPENDENT CHILDREN’S LAWYER |
| AMICUS CURIAE: | Office of the Public Advocate |
| DATE DELIVERED: | 13 January 2011 |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 13 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr K |
| COUNSEL FOR THE RESPONDENT: | Ms C SC |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D |
| COUNSEL FOR THE PUBLIC ADVOCATE: | Mr M SC |
ORDERS
IT IS ORDERED:
THAT the ex tempore reasons for judgment be immediately transcribed and thereafter placed upon the Court file with copies being made available to all of the parties and the Office of the Public Advocate.
THAT the costs of the listing and hearing of the proceedings this day of each of the parties and of the Office of the Public Advocate be reserved for mention at a date and time to be fixed within the next seven (7) days.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the parents, Senior Counsel for the Hospital, Counsel for the Independent Children’s Lawyer and Senior Counsel appearing amicus curiae for the Office of the Public Advocate.
IT IS NOTED that publication of this judgment under the pseudonym Re: Baby D is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
| The Parents |
Applicant
And
| A Hospital |
Respondent
And
Independent Children’s Lawyer
And
Office of the Public Advocate
Amicus Curiae
REASONS FOR JUDGMENT
Yesterday I had before me a case involving the parents, a Hospital and Baby D. On that occasion the parents were represented by Counsel, the Hospital was represented by Senior Counsel, the Independent Children’s Lawyer by its retained Counsel who appeared to represent the interests of Baby D and the Office of the Public Advocate was granted permission by the Court without objection from the parties to appear on an amicus curiae basis. Ms N, a senior manager of the … Region, of the Office of Public Advocate who was not a legally qualified person appeared and wholly participated in the proceedings.
At the end of the all day hearing I reserved both my orders and reasons for judgment. I indicated to all present that I would deliver orders or declarations as soon as practicable, separate from the reasons for judgment, and would thereafter deliver detailed reasons for judgment. The matter has been mentioned at Court this day arising out of a letter received today by the Registry Manager from the Office of the Public Advocate. That letter requested an urgent mention of the matter. The letter was written on the basis of an existing guideline and protocol, No. 9 of 2004 (“the protocol”), applicable to the Victorian and Queensland Registries of the Family Court. That protocol was, following upon an earlier Practice Direction of the Court, enacted by its parties and subject to all of the more recent amendments in Division VII of the Act as are now incorporated.
That letter was received at the Court under the signature of a Principal Legal Officer and requested that orders for a transcript of yesterday’s hearing be ordered and made available as a matter of urgency. It was also requested that judgment and orders of the Court be withheld until such time had been then available to the Public Advocate to consider all of “the material, the transcript and, if necessary, recall witnesses, call further evidence and make submissions with the benefit of Counsel”. Today, Mr M of Senior Counsel, appeared on an amicus curiae basis on behalf of the Office of the Public Advocate.
I first record that his initial submission to the Court varied the written requests of the Public Advocate in respect of the proceedings and their response to and involvement in the ongoing proceedings. Thereafter I was advised of the circumstances of, and related to Baby D, that brought about a change, albeit a modest change, in her circumstances from that which was detailed in evidence yesterday. The Public Advocate has reflected and considered all matters and taken advice and now seeks what they regard as only sufficient time to prepare and present their concerns and submissions in this hearing.
Mr M, in his submissions, has carefully outlined, as distinct from the letter, that they would propose to call no other evidence nor cross-examine the witnesses, being the experienced medical practitioners who gave evidence yesterday. The submission of Mr M was directed to the preparation of written submissions as a matter of urgency to be prepared and presented to the Court. He indicated that the Office of the Public Advocate had as yet formed no concluded view. The Court therefore could not know if the written submissions would be in line with the unanimous submissions from all parties and interested persons that were received yesterday or a variation thereof or opposing the matters raised yesterday, thus in the classical contradictor sense of having the alternate position and argument before the Court. It is, however, necessary to further touch upon some matters of this case history and how and why this matter is now before the Court.
Baby D encountered certain medical issues in or about mid November of last year. She was a patient in the Hospital, having been born in August of last year at some 27 weeks gestation. She was a twin. She was supported as a premature baby by the Hospital but, at a date in mid to late November, there was need for urgent care and medical attention and ultimately the attempted removal of her airway tube. Complications arose and Baby D remains an inpatient in neonatal intensive care at the Hospital. The child has had the very significant benefit of care from very senior and experienced medical practitioners. In these proceedings they have been identified as Dr X and Dr Y. I have previously made orders for their identity to be suppressed, as has the identity of the parents and the child.
Baby D experienced a situation where of necessity a very difficult medical procedure was undertaken to replace her endotracheal tube. All of the urgent circumstances of, and related to, that event are dealt with by the evidence of Dr Y in his first affidavit and in his substantial report to the Clinical Ethics Committee of the Hospital, all of which are in evidence in the case before me.
As I am delivering an ex tempore judgment after Court hours I rely upon for completeness upon the whole of that evidence which is before everyone at the Bar Table and all parties and interested persons in the proceedings. Baby D sustained significant hypoxic ischaemic injury to the brain. Clinical examinations were undertaken and the results of those examinations are recorded in the evidence.
The issue that led directly to the parents jointly filing an application in this Court came about because Dr Y, who is the Director of Newborn at the Hospital sought an urgent ruling upon substantial documentation lodged with the Clinical Ethics Committee of the Hospital. That submission was prepared on 13 December 2010 and was before the Clinical Ethics Committee who subsequently met on or about 17 December. The report and outcome from the Deputy Chair of that Committee was made available to Dr Y and to the parents. The Ethics Committee concluded it was appropriate for the parents and not the Hospital to approach this Court for declarations or orders. The full report is in evidence. As I said, that outcome was communicated to the parents on 23 December 2010.
On 24 December 2010, the parents filed an application in this Court and the matter came before Cronin J late that afternoon. His Honour made an order, upon hearing Mr K of Counsel for the parents, for Baby D to be separately represented by Victoria Legal Aid and adjourned the case to a date in January at which time it came before me as the Duty Judge. As it transpired, I became aware of the matter on 4 January 2011, being the first day in the New Year when the Registry was open. I organised a mention of the matter with Ms J, solicitor appearing as the Independent Children’s Lawyer and Mr K who appeared for the parents. I was aware of the provisions of Rule 4.10 of the Family Law Rules 2004 and required the Department of Human Services as the “prescribed child welfare authority” to be notified and that occurred over the following days. I also required the Hospital to be present and indicated that position to Ms J.
The outcome, and again on the basis of this ex tempore judgment and summarising factors at this late hour – is that on 7 January 2011, Counsel for the parents, the Independent Children’s Lawyer and Senior Counsel for the Hospital appeared. The direction was made for the Department of Human Services to either appear or indicate their interest, if any, in the proceedings. As a result the Court received that day written advice from the principal solicitor of the Department of Human Services that they would not participate in the proceedings and would not make submissions to the Court.
On 10 January 2011, Ms J alerted the Court to the protocol and orders were made for the service of all documents upon the Office of the Public Advocate, initially by email and then by sealed copies of the documents. The request was extended to the Public Advocate to indicate both to the Court and the Independent Children’s Lawyer if they wished to be heard on Wednesday, 12 January 2011. The Office of the Public Advocate did wish to be heard and they were then represented by their nominated office representative.
It is fundamental to any proper determination of the request before the Court today to understand the structure and procedure of yesterday’s hearing. Clearly, the parents were represented by Counsel, the Hospital by Senior Counsel and the Independent Children’s Lawyer by experienced Counsel who has appeared regularly in like matters. The Office of the Public Advocate was represented by Ms N, earlier described as the senior manager for the … Region. I accept that her involvement in the case arose out of the 10 January 2011 orders and the subsequent service of documents, but she appeared at Court with knowledge of the matter and was prepared to represent the interests of the Public Advocate.
Ms N attended at Court with a Notice of Address for Service, typed and ready to be lodged with the Court. I directed that it be accepted by the Court, but not to be filed and entered onto the Court records. I did not give leave to Ms N, who I then understood was not legally qualified, to appear as a party. She was extended the invitation to appear amicus curiae and was positioned at the Bar Table. She wholly and fully participated in the proceedings. Her questions were both relevant and helpful. She cross examined the witnesses. She made a final address. She was of great assistance to the Court as were other Counsel.
It is a fact today, not disputed by Mr M, that Ms N has regularly and consistently represented the interests of the Public Advocate in this Court. There are recorded cases where she has appeared, and indeed there is one case where I observe now, and I have raised this with Mr M, that Dessau J extended an intervention order in favour of the Office of the Public Advocate and Ms N appeared effectively as a party in that proceeding without objection or demure. I record that it has been the past position, clearly known to and accepted by the Office of the Public Advocate, for Ms N to represent them before the Court.
That judgment to which I referred for completeness is recorded as the matter of Re: Baby A [2008] FamCA 417, dated 6 June 2008. I have not otherwise researched and I do not see it is my position to ascertain what other authorised appearances she has made for the Office of the Public Advocate. The point of the matter is that service was properly effected upon the Public Advocate’s office. Ms N appeared. A Notice of Address for Service was handed to the Court. The hearing was undertaken. Ms N was of assistance to the Court and the matter was concluded.
It is essential in the determination of the current application to understand that the hearing yesterday, which occupied the day and included cross examination of the medical specialists, was concluded, inclusive of final addresses. The issue before the Court arose out of the need to consider the welfare and best interests of Baby D. Pursuant to section 67ZC of the Family Law Act 1975 (Cth) the Family Court has, in addition to jurisdiction that a Court has under Part VII for children, jurisdiction to make orders relating to the welfare of children. Sub-section (2) requires the Court in deciding whether to make an order under s 67ZC(1) in relation to a child, to regard the best interests of the child as the paramount consideration. Those matters were before the Court yesterday.
An issue that was fairly and squarely before the Court related to whether or not Baby D was intended to be subject to a “special medical procedure” or otherwise. There are a number of recent decisions of this Court, particularly those learned decisions of Murphy J, that were referred to yesterday. It is unnecessary for me at this stage to delve deeply into the protocol which curiously identified a “medical procedure” rather than a “special medical procedure”. Nevertheless, it is only a guideline and protocol.
I well understand that Ms N had somewhat limited time to read, prepare and be at Court. However the Independent Children’s Lawyer fairly makes the point with the filing of the affidavit of Dr Y on 10 January 2011 that she had only slightly less time than other Counsel and the Court to prepare for the matter. In any event I have already emphasised the thoroughness with which Ms N conducted her obligations and responsibilities to the Court with her questions of and submissions in relation to Baby D.
That is the background to the hearing and its conduct.
Currently the Court has concluded the hearing, has adjourned and will likely pronounce orders in the near future and deliver reasons for judgment thereafter. Mr M has submitted that it would be proper and in the best interests of the child and of the Court to have a wider opportunity to reflect on a different position that may be argued. No concluded or different view is currently known but it is said that the Public Advocate should, through a different officer, have the opportunity to consider if it should put a different position to the Court to that which was submitted in the normal conduct of the Court hearing.
I will not in any way delve into the issues of inter-office personalities that Counsel for the parents made strongly in his submissions to the Court – that is, what the Court is being now asked is to re-open the hearing, at least to the extent of written submissions, and reconsider a likely different position prepared by another employee (this time legally qualified from within the Public Advocate’s office). I record the opposition of all parties to the position of the amicus curiae – that is, the parents, the Hospital and the Independent Children’s Lawyer all oppose, and in the case of the parents, strongly oppose, any reopening of the case and any extension of argument. The parties do so on the basis that the matter has concluded, the Office of the Public Advocate was heard and the matter is now awaiting judgment.
The other matter that the Court has been advised of today is that there was a health issue with Baby D last evening. Senior Counsel for the Hospital advised the Court that there was, at some early hour this morning, an accidental dislodgement of her tube. It was immediately reinserted without incident. It was said that it was the second time that this event had occurred this week. The evidence before the Court yesterday was that there were either several or two prior occasions when this had earlier happened but that the endotracheal tube could be easily reinserted if done immediately and without any contraction of the airway over a period of time. Baby D is in a precarious medical circumstance. Again, I do not traverse the evidence in this ongoing extempore judgment because all of that evidence is already before the Court for consideration.
I reflect upon the strongly held position of the Hospital and the parents and conclude it is appropriate to give due weight and respect to them and their views. Likewise I equally give due weight and respect to the Independent Children’s Lawyer and emphasis their independence from the Hospital and the parents. To the extent that any unfortunate comment might have been made by the Public Advocate and directed to the role of the Independent Children’s Lawyer I record that I have no regard to such comments which might otherwise reflect upon their independence. I do not regard anything that was said would have implied that in any way. Likewise I wholly respect the Public Advocate’s position. It is a difficult role but there is a point where that role was conscientiously undertaken at length over a day’s Court hearing in circumstances of urgency.
Mr M has emphasised the benefit to the Court of the alternate or opposite submission, the classic contradictor. It is true that yesterday all three Counsel and Ms N, were of the opinion that what was proposed for Baby D was not a “special medical procedure” on the evidence of the doctors and their unchallenged experience and qualifications.
It was submitted that the parental responsibility and the welfare jurisdiction of the Court was proper and sufficient to pronounce orders and that was what the Court should so do. Those are matters on which I am currently reflecting and evaluating the law and the evidence. I take this opportunity to emphasis that it is the role of the Judge to balance all evidence and all submissions, and that with or without the assistance of an opposing submission, the Court can and will act. That should satisfy all in the context of a balanced judgment reflective of issues. Overwhelmingly what I emphasise is that my judgment will be primarily directed to the best interests of Baby D and her welfare. That is paramount under the Family Law Act (s 60CA) and are matters to which I will give paramount consideration.
Ultimately, when I summarise the submission of Mr M he cannot say there will be a contrary view. What he says is that, if and when the transcript is ordered, and that may take several days, then the Office of the Public Advocate will reflect and consider and likely put its views. They may be identical to its submissions which are already before the Court. They may differ. It may be, and I draw no conclusion from this, that Ms N will have no part in the further submissions. She has already submitted a position on behalf of the Office of the Public Advocate to the Court. Mr K strongly emphasised that it would be others from within the Office, but I am simply not involving the Court in what he described as the internal politics within the Office of the Public Advocate.
The correct position is that this matter has been properly, fairly and openly heard and concluded. The evidence of the experienced medical practitioners and their qualifications and evidence was before the Court and was available in affidavit form in advance to the Public Advocate. They were cross examined. However I analyse and evaluate the proceedings and bear close scrutiny to Mr M’s submissions, the Public Advocate has been wholly and completely involved in the hearing by their choice. The Office of the Public Advocate has delegated an individual who has appeared numerous times in other Family Court cases, but not before me, with their imprimatur. Ms N appeared amicus curiae and I repeat, was extremely helpful.
On that basis I conclude the proper and correct course of action is to reject any application for a limited reopening of the case. What I intend to do in this case is to continue to reflect and evaluate, but to deliver orders in open Court within a short timeframe early next week and then subsequently provide written reasons for judgment. I will have those orders served on all parties and the amicus curiae. I will have these extempore reasons for judgment taken out as a matter of urgency. I emphasise they were truly extempore, given without leaving the Bench and without reference to the plethora of documents and evidence which otherwise might have delayed these reasons for judgment beyond 5 o’clock.
This matter is urgent. It does need, at least on this interim application, finality. I record that the Court immediately listed, upon request, this application today and has now so determined the application. I will have this judgment transcribed and made available to all parties, but the usual issue of a few days delay will no doubt arise with the weekend intervening.
As there was no written application before the Court and as the Court moved as a matter of urgency upon a written request there is no application to be formally dismissed as none was filed. I will have these reasons for judgment stand as recording the rejection of the request of the Office of the Public Advocate. I record that the principal legal officer was the solicitor instructing Mr M and that the Public Advocate herself and Ms N were in Court as was the father of Baby D. Thank you.
RECORDED : NOT TRANSCRIBED
What I will do is reserve leave to all parties to mention any matter before me on a date to be fixed early next week. I am not going to invite further matters by listing to any particular date or time. There is a reasonable likelihood , having regard to issues and developments with Baby D, that there might be some other application at some time. If, within my normal defended list, I can urgently take the matter, I will. I simply reserve to all parties liberty to mention any matter arising from the proceedings this day. Thank you. Adjourn the Court.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 13 January 2011.
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