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
[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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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.