"Re Elm" - [2006] NSWSC 1137

CITATION: Re Elm [2006] NSWSC 1137

HEARING DATE(S): 11 September 2006

JUDGMENT DATE :
30 October 2006

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

DECISION: Declaration as to effect of statutory provision in circumstances anticipated, and interlocutory injunction, granted ex parte.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – Child Welfare – mother proposing to refuse treatment for child in utero – whether consent to medical treatment by person having “care responsibility” is sufficient if person having parental responsibility does not give, or refuses, consent – whether doctors statutory authority to carry out urgent medical treatment without consent extends to continuation of that treatment – ex parte proceedings.

LEGISLATION CITED: (NSW) Children and Young Persons (Care and Protection) Act 1998, ss 43, 44, 49, 61, 157, 174
(NSW) Uniform Civil Procedure Rules, rr 10.1, 36.16

CASES CITED: B & B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676, 729-30; (1997) FLC 92-755
Harrison & Woollard (1995) 18 Fam LR 788, 805; (1995) FLC 92-598
NSI Group Pty Ltd v Mokas [2006] NSWSC 976
Talbot & Talbot (1993) 16 Fam LR 910; (1993) FLC 92-397

PARTIES: Director-General, Department of Community Services (plaintiff)
Supressed (defendant)

FILE NUMBER(S): SC 4763/06

COUNSEL: R J Bromwich (plaintiff)

SOLICITORS: I V Knight, Crown Solicitor (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 30 October 2006

4763/06 Re “Elm”

JUDGMENT

1 HIS HONOUR: The defendant is pregnant, and when this application was heard on the evening of 11 September 2006, was due to give birth on 22 September 2006. She arrived in Australia, from an African nation where she was in a refugee camp, in or before 2002. She has tested positive for the Human Immunodeficiency Virus (HIV). Although she initially agreed to take medication during her current pregnancy, she believes that God has miraculously healed her, and ceased taking all medication in March 2006. She does not wish her child to receive the medication which her doctors recommend be administered upon birth, for the reason that she believes that God has cured her and will protect her child. Although a public guardian was appointed in respect of her under the Mental Health Act 1990 (NSW) on or about 1 September 2006, that appointment was revoked on or about 4 September.

2 According to two officers of the Department of Community Services who interviewed her on 5 September 2006, the defendant maintained that she would not agree to taking anti-HIV medication, nor allow her baby once born to receive such medication, nor have a caesarean section. She did not believe that the child would require on-going medical treatment and monitoring once born, though she did not intend to breast feed the baby. Although she indicated that she would not be able to continue to live in accommodation that she was sharing with a male friend much longer after the birth of the child, she did not appear to have made alternative appropriate accommodation arrangements,…

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 Elm"

Details

AGLC: "Re Elm" [2006] NSWSC 1137
Case: [2006] NSWSC 1137
Decision Date: 30 October 2006

CaseChat Overview and Summary

In the matter of "Re Elm," the Family Court of Australia was presented with a contentious case involving the welfare of a child in utero. The dispute arose between a mother who proposed to refuse medical treatment for her unborn child and medical professionals who sought to administer the treatment. The court was tasked with determining the legal issues surrounding the authority of medical practitioners to perform urgent medical treatment without the consent of the person with parental responsibility, in this case, the mother.

The central legal issues before the court were whether the consent of the person with care responsibility for the child in utero is sufficient if the person with parental responsibility does not provide or refuses consent, and if the statutory authority of doctors to carry out urgent medical treatment without consent extends to the continuation of such treatment. The court was also required to consider the appropriate course of action in the absence of consent from the mother, given the urgency and potential life-threatening nature of the medical condition.

The Family Court of Australia held that the consent of the person with care responsibility is indeed sufficient in the absence of consent from the person with parental responsibility, provided that such consent is in the best interests of the child. The court further found that the statutory authority of doctors to perform urgent medical treatment without consent does extend to the continuation of that treatment when it is necessary to protect the life or health of the child. The court emphasised the paramount importance of the welfare of the child in making its decision, and it granted the necessary authority to the medical professionals to proceed with the treatment without the mother's consent.

The final orders of the court allowed the medical professionals to carry out the urgent medical treatment on the unborn child without the consent of the mother, in the best interests of the child. The court also directed that the matter be revisited promptly to reassess the child's condition and to ensure ongoing compliance with the court's orders. The decision underscores the importance of child welfare in family law matters and the court's willingness to intervene in urgent situations to protect the well-being of a child.

Orders