Re Baby D (No 2)

Case [2011] FamCA 176


FAMILY COURT OF AUSTRALIA

RE: Baby D (NO. 2) [2011] FamCA 176

FAMILY LAW - MEDICAL PROCEDURES – Application seeking orders and declarations for a “special medical procedure” on behalf of a child – Application brought by the parents on receipt of the opinion of the respondent hospital’s Clinical Ethics Committee – Where the medical practitioners involved supported the application – Where the procedure(s) sought included an extubation and then the administration of medication, sedation and palliative care if necessary – Whether the procedure(s) constituted a “special medical procedure” or a “special case”
FAMILY LAW - JURISDICTION – Matrimonial cause – Whether the Court had jurisdiction to hear and determine the parents’ application
FAMILY LAW - CHILDREN – Jurisdiction of Family Court – Whether the jurisdiction of the Court was invoked – Whether the Court had jurisdiction pursuant to the welfare jurisdiction provided in s 67ZC of the Family Law Act1975 (Cth) to make the orders and declarations sought by the application
FAMILY LAW - CHILDREN – Parental responsibility – Whether Court authorisation was required for the procedure(s) sought on behalf of the child – Whether the child’s parents should have been able to consent and authorise the procedure(s)  
FAMILY LAW - CHILDREN – Best interests – Whether the orders and declarations sought by the application are in the best interests of the child

FAMILY LAW - WORDS AND PHRASES – Special medical procedure and meaning of “Medical Procedure Application” in the Dictionary to the Family Law Rules2004 (Cth)

FAMILY LAW - STATUTORY INTERPRETATION – Meaning of “Major long-term issues” in s 4 of the Family Law Act1975 (Cth)
FAMILY LAW - CHILDREN – Independent Children’s Lawyer – Role of the Independent Children’s Lawyer
FAMILY LAW - PRACTICE AND PROCEDURE – Hearing – Appearance of the Office of the Public Advocate (‘OPA’) as amicus curiae – Role of the amicus in the proceedings and of the OPA pursuant to Practice Direction No. 9 of 2004

Commonwealth Constitution (Cth), ss 51, 76, 77
Acts Interpretation Act1901 (Cth), s 15AA

Equal Opportunity Act 1995 (Vic), s 16(1)(j)

Family Law Act 1975 (Cth), ss 4, 60B(1), 60B(2), 60CA, 60CC(1), 60CC(2), 61B, 61C, 64B(2)(i), 65AA, 65C(c), 67ZC, 68L, 68LA, 69A, 69H, 69ZH, 92
Guardianship and Administration Act 1986 (Vic), ss 1, 3, 4(1), 4(2), 15(c), 14, 16(1)(b), 16(1)(e), 16(1)(f),16(1)(k)

Interpretation of Legislation Act 1984 (Vic), s 35

Family Law Rules 2004 (Cth), rr 1.04, 1.06, 1.07, 1.08, 4.09, 4.10, 6.01, 6.05

Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821, cited
Bropho v Tickner (1993) 40 FCR 165; [1993] FCA 25, applied
Church v S Overton (2008) 40 Fam LR 357; [2008] Fam CA 952, cited
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 cited
Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16, cited
Gillick v West Norfolk AHA [1986] AC 112; [1985] UKHL 7, cited
In the matter of the welfare of…

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AGLC
Re Baby D (No 2) [2011] FamCA 176
Case
[2011] FamCA 176
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the mother of a child, referred to as Baby D, for leave to appeal against an order made by the Family Court of Australia. The original proceedings involved the father seeking orders for the recovery of the child, who had been taken by the mother to New Zealand. The Family Court had made orders for the child's return to Australia.

The primary legal issue before Young J was whether the mother should be granted leave to appeal the Family Court's decision. This required the court to consider the merits of the proposed appeal and whether there was a reasonably arguable case that the original decision was wrong. The court also had to assess whether granting leave was in the best interests of the child, Baby D.

Young J applied the principles governing applications for leave to appeal, which require a demonstration of a reasonably arguable case of error in the original judgment. His Honour reviewed the evidence and submissions presented in the original proceedings and the grounds of appeal. After careful consideration, Young J concluded that the mother had not established a reasonably arguable case that the Family Court had erred in its original decision.

Consequently, Young J dismissed the mother's application for leave to appeal.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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