Re: Edith

FAMILY COURT OF AUSTRALIA

RE: EDITH [2014] FamCA 908

FAMILY LAW – CHILDREN – MEDICAL PROCEDURE – Applicant parents seek authorisation for a special medical procedure – proposed treatment is a laparoscopic partial hysterectomy – where the child does not have the capacity to consent to the proposed medical procedure – where the proposed medical procedure is recommended and supported by the medical practitioners involved in the child’s care – satisfied that it is in the child’s best interests to authorise the proposed treatment.

Family Law Act 1975 (Cth) s 67ZC
Family Law Rules 2004 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175
Re Angela (Special Medical Procedure) [2010] FamCA 98
Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293

APPLICANTS: The Mother and the Father

Independent Children’s Lawyer

File No: By Court Order File Number is suppressed

DATE DELIVERED: 23 October 2014

JUDGMENT OF: Macmillan J

HEARING DATE: 29 September 2014

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

ORDERS

IT IS ORDERED THAT

1. The surgical removal of Edith’s uterus is hereby authorised by the Court.

2. To the extent that it is necessary, the father and the mother are hereby authorised to consent to the removal of Edith’s uterus on her behalf.

3. The applicants’ Amended Initiating Application filed 28 August 2014 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Edith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA

File No: By Court Order File Number is suppressed

The Mother and the Father

Applicants

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Edith was born in 1997 and is now 17 years of age. Edith, who has been assessed as having the mental age and IQ of a five year old, requires full time care and assistance.

2. Edith was born with Ataxia Telangiectasia, which is a rare neurological disease. As a direct result of having Ataxia Telangiectasia, Edith has a severe intellectual disability, ataxic cerebral palsy, a sensory processing disorder and her behaviour is challenging. She also has an immune deficiency which has resulted in her having recurrent infections and, in particular, ear infections which have caused hearing impairment and behavioural changes. Dr H, Edith’s paediatrician, gave evidence that there was no prospect of any improvement in Edith’s long-term prognosis.

3. Edith’s father is 46 years of age and works full time as a skilled tradesman. Edith’s mother, who is 44 years of age, is Edith’s full time carer.

4. Edith’s parents were married in 1992.  They have two other adult children: A, who is 21 years of age and has just completed a university degree, and Y, who is 19 years of age and is a full time university…