Re Inaya (Special Medical Procedure)

[2007] FamCA 658

FAMILY COURT OF AUSTRALIA

RE INAYA (SPECIAL MEDICAL PROCEDURE) [2007] FamCA 658

FAMILY LAW – CHILDREN – Special Medical Procedure – Bone marrow transplant between infant cousins – Application brought by parents of the proposed donor for order authorising performance of a bone marrow harvest or peripheral blood collection on a thirteen month old child for the benefit of her seven month old cousin – Whether Family Law Act 1975 (Cth) gave the Court power to authorise what would otherwise be an offence under S 44(1) of the Human Tissues Act 1982 (Vic) – Whether consenting to the procedure lay within parental responsibility – Whether the procedure was in the best interests of child – Family Law Act 1975, ss 67ZC, 60B(2)(i) – Application allowed.

CONSTITUTIONAL LAW – S 109 inconsistency – Whether Human Tissue Act 1982 (Vic) is inconsistent with Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth)
Human Tissue Act 1982 (Vic)

Carter & Ors v Egg Pulp Marketing Board for the State of Victoria [1942] HCA 30; (1942) 66 CLR 557
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Commonwealth v Western Australia (1999) 196 CLR 392
E v E [1999] FamCA 2403

In re Marion (No 2) (1994) FLC 92-448; 17 FamLR 336.

L and GM v MM (1994) FLC 92-449; 17 FamLR 357
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) FLC 93-174; 31 FamLR 339
P v P (1994) FLC 92-462; 17 FamLR 457; (1994) 120 ALR 545; (1994) 68 ALJR 449; (1994) 181 CLR 583.
Re: GWW and CMW (1997) FLC 92-748; 21 FamLR 612; (1997) 136 FLR 421
Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293; 15 FamLR 392; (1992) 16 ALJR 300; (1992) 106 ALR 385;; (1992) 175 CLR 218; (1992) 6 AJFL 97 (Marion's case)
Telstra v Worthing (1997) 197 CLR 61
University of Wollongong v Metwally (1984) 158 CLR 447
Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618

Western Australia v Commonwealth (1995) 183 CLR 373

1st APPLICANT: Mr Kamran

2nd APPLICANT: Mrs Kamran

FILE NUMBER: MLC 3854 of 2007

DATE DELIVERED: 27 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 20 April 2007

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr Brown SC

SOLICITOR FOR THE 1ST APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE 2^ND APPLICANT: Mr Brown SC

SOLICTOR FOR THE 2ND APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms. Bender

Victorian Legal Aid

Orders

1. That MR KAMRAN and MRS KAMRAN, the parents of INAYA KAMRAN born … March 2006 are forthwith authorised to consent to the performance on INAYA of an HSC procurement (bone marrow harvest) and, to that extent, to give any necessary directions to any medical practitioner to implement these orders.

2. An HSC procurement (bone marrow harvest) procedure is authorised in respect of the child INAYA KAMRAN for the purposes of transplanting the donated bone marrow for transplant to MANSOUR KAMRAN born … September 2006.

3. The applicant parents, the Independent Children’s Lawyer, the Office of the Public Advocate (Victoria) and all medical practitioners and hospitals associated with the said procedure have liberty to apply on short notice in respect of the implementation and/or variation of these orders.

4. That all proceedings this day be heard in camera.

5. The names of the parents and the child INAYA KAMRAN be not published without further order of the Court.

6. Judgment in respect of the matter be reserved.

7. All outstanding applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

8. That pursuant to s. 65DA(2) and s 62(b), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of  who can assist parties adjust and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Re Inaya (Special Medical Procedure)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3854 of 2007

Mr and Mrs Kamran

Applicants
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction  

1. Mansour Kamran is a baby born … September 2006.  He suffers from Infantile Osteopetrosis.  Without a bone marrow transplant, he is likely to die in the very near future.  The bone marrow transplant is his only potential cure. 

2. This application is not about Mansour although potentially I see no reason why it could not be.  It is about Inaya Kamran who was born on … March 2006.  She is therefore just over one year old.

3. The mother of Mansour is the sister of the father of Inaya.  Mansour and Inaya are therefore cousins.  Their parents are not only siblings, they are very close by virtue of family ties and culture.

4. The parents of Inaya have asked the Court to make an order to authorise the taking of bone marrow from Inaya so that it can specifically be transplanted into her cousin Mansour.

5. In Victoria, the Human Tissue Act 1982 (the “Victorian Act”) provides a prohibition against removal of tissue from children. Section 14 says:

   (1)It is not lawful to remove non-regenerative tissue from the body of a living child for the purpose of the transplantation of the tissue to the body of another living person.

   (2)Except as provided by this Part, it is not lawful to remove regenerative tissue from the body of a living child for the purpose of the transplantation of the tissue to the body of another living person.

6. Section 3 of the Victorian Act defines "tissue" as including an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.

7. Section 3 further defines "non-regenerative tissue" to mean tissue other than regenerative tissue and "regenerative tissue" to mean tissue that, after injury or removal, is replaced in the body of a living person by natural processes.

8. As I shall set out below, a bone marrow harvest procedure removes tissue which is regenerative to the donor and as such, is generally caught by

   
   

   s 14(2) of the Victorian Act.

9. Notwithstanding the apparent absolute prohibition set out in s 14 of the Victorian Act, there is a class of children who can provide tissue for transplants. Section 15 (1) reads:

   A parent of a child may give his consent in writing to the removal from the body of the child of specified regenerative tissue for the purpose of the transplantation of the tissue to the body of a brother, a sister or a parent of the child. (my emphasis)

10. The process of such a transplant has to be subject to the certification of a registered medical practitioner.  Section 15(2) goes on:

    (2)A registered medical practitioner may certify in writing

    (a)that the consent in writing of a parent of a child was given in his presence; and

    (b)that he explained to the parent before the consent was given the nature and effect of the removal from the body of that child of the tissue specified in the consent and the nature of the transplantation of that tissue

    and

    (c)that

    (i)he is satisfied that, at the time consent was given, the child was capable of understanding the nature and effect of the removal of the tissue and the nature of the transplantation;

    (ii)he explained those matters to the child;

    (iii)the child understood those matters; and

    (iv)the child was in agreement with the proposed removal and transplantation of tissue; or

    (d)where the consent relates to the removal of specified regenerative tissue for the purpose of transplantation of the tissue to the body of a brother or sister of the child—that he is satisfied

    (i)that the brother or sister is likely to die unless the tissue is transplanted to the body of that brother or sister; and

    (ii)that, at the time the consent was given, the child, by reason of his age, was not capable of understanding the nature and effect of the removal of the tissue and the nature of the transplantation.

11. Although on the evidence before me, I am satisfied that the requirements of s 15(2) would be satisfied if this was a procedure involving siblings, it is immaterial because of the fact that Inaya and Mansour are cousins. Section 14 of the Victorian Act prohibits the procedure which would otherwise be a matter for parental responsibility and consent, if the children were siblings.

The prohibition

1. Section 42 of the Victorian Act provides:

   (1)Nothing in this Act applies to or in relation to

   (a)the removal of tissue, whether regenerative or non-regenerative, from the body of a living person

   (i)in the course of medical treatment or dental care or a procedure carried out, in the interests of the health of the person, by a registered medical practitioner or, in the case of dental care, by a registered dentist with the consent, express or implied, given by or on behalf of the person; or

   (ii)in circumstances necessary for the preservation of the life of the person;

   (ab)the removal of blood or other regenerative tissue from the body of a living person in the course of medical treatment or a procedure (including the testing of blood to determine whether the person has, or may have in the future, a disease or medical condition) carried out, in the interests of the health of the person, by a health service provider with the consent, express or implied, given by or on behalf of the person;

   (b)the use or disposal of the tissue so removed;

   …

2. That provision would authorize the removal of tissue from Inaya but only in respect of her own treatment.  It may be open to argue that the use of the words “in the interests of the health of the person” might include the future psychological health of Inaya.  Interestingly, evidence relating to this issue was presented by the parents to satisfy the provisions of the Family Law Act 1975 (Cth) (the “Family Law Act”) to show that it was in the best interests of Inaya for the procedure to be undertaken.[1] However, I do not need to decide the matter on the basis of that interpretation of the Victorian Act.

   i)[1] see the affidavit of Mr P

3. Section 44(1) of the Victorian Act makes clear that offences are committed if the Act is breached:

   A person shall not remove tissue from the body of a person whether living or dead except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by that person.

4. A rather vague s 44(5)(b) provides :

   (5)      Nothing in sub-section (1)…applies to or in relation to-

   …

   (b)any other act authorized by law.

   I shall return to s 44(5)(b) in paragraph 44 of these reasons as it is also arguable that the procedure contemplated could be authorized by this Court.

The application

1. In this application brought by the parents of Inaya, there were no respondents. I was assisted by Senior Counsel for the parents and an Independent Children’s Lawyer whose function was obviously to contemplate the matters under the Family Law Act as they related to Inaya. As amicus Curaie, I also had the assistance of a representative of the Victorian Public Advocate’s Office. Ms N felt that her Office really did not have a role because there was no suggestion of disability but she also added that she understood the conflict created for the parents of both Inaya and Mansour by the State law. With the recent advances of medical science and the ageing of legislation such as the Victorian Act, a review is necessary. Ms. N said she would raise the issue with the appropriate people. I believe that it is essential that that occurs to obviate the necessity for parents to have to take formal legal proceedings in cases such as this.

2. The initiating application sought orders that included:

   6.That the Court authorise performance of a bone marrow harvest to collect bone marrow cells or alternatively peripheral blood collection to collect peripheral blood cells from the child [INAYA] for transplant to [MANSOUR KAMRAN] born […] September 2006 and the Court further authorises the administration of any drug which may be incidental to or necessary for either of the above procedures

   7.That the Applicants as the legal guardians of [INAYA] be authorised to consent to the performance on [INAYA] of either of the procedures referred to in paragraph 6 (six) herein.

3. I was able to determine the application on the papers and upon submissions.  I had the benefit of affidavits from the parents of Inaya, the parents of Mansoud, a clinical Haematologist Dr T, Dr M of the Royal Children’s Hospital, a senior paediatrician Dr S and Psychologist Mr P.

4. I was provided with written submissions by the Independent Children’s Lawyer.  Those submissions which were supported by the Applicants, said (inter alia):

   ·The Court had jurisdiction to make orders relating to the welfare of children;

   ·A bone marrow harvest procedure on a healthy child for the purpose of donating bone marrow cells to another has previously been considered to be a special case outside the scope of a parent’s power to consent on behalf of their child;

   ·In deciding whether to make an order under s 67ZC(1), a court must regard the best interests of the child as the paramount consideration;

   ·The Court must consider s 60CC of the Family Law Act

5. The Independent Children’s Lawyer supported the making of orders.

6. The submissions and evidence put forward by the parties in this case sought to follow the approach required in special medical procedure cases and particularly to follow Re GWW v CMW.[2] In that case, Hannon J faced a similar dilemma. His Honour was dealing with an application for a bone marrow transplant between a willing and knowledgeable child and an adult aunt. Hannon J saw the conflict between the Family Law Act and the Victorian Act and invited the various State Attorneys-General to appear to argue the constitutional validity issue. The Attorneys declined. As the issue here is similar if not more stark, because of the two very young and oblivious children, I saw no point in pursuing s 78B notices again. It should also be noted that the judgment of Hannon J was later followed by Frederico J in E v E[3].  The parents presumed that this was a situation in which they did not have authority to consent to the proposed procedure and that authorisation, as well as a declaration that the parents may consent, was required from the Court. 

   [2] (1997) FLC 92-748; (1997) 21 FamLR 612.

   [3] [1999] FamCA 2403

7. There are two questions raised by this case: 

   1.Whether this Court has jurisdiction to make the requested orders in light of the fact that the proposed procedure is an offence under

   
   

   s 44(1) of the Victorian Act and whether the Victorian Act is inconsistent with the relevant provisions of Part VII of the Family Law Act which vests a “welfare power” in the Family Court; and

   2.Whether consenting to the donation by a child of human tissue to a relative who is not a sibling or a parent of the child is within the scope of parental responsibility.

The hearing

1. Due to the sensitivities involved in this case I ordered, when this matter was first before me, that all proceedings be heard in camera.

2. Pursuant to s 68L of the Family Law Act, I appointed an Independent Children’s Lawyer to represent Inaya.

3. The Office of the Public Advocate was notified of the proceedings and I permitted a representative to be present at each hearing of the matter. No order was made under s 92 of the Family Law Act as the Office of the Public Advocate did not seek to formally intervene in the matter.

4. Before turning to the legal issues, it is important to set out some of the family complexities that make this case unusual if not unique.

The families and the background

1. The applicants have three children A, born … April 2001, S, born … May 2003, and INAYA KAMRAN, the proposed donor, born … March 2006.

2. The genetic make-up of Inaya and Mansour is actually closer than that of first cousins as Mansour’s father and Inaya’s mother are also first cousins and the two families have been connected in previous generations.  

3. The applicant father portrayed the relationship between the two families as “very strong” which is something that dates back generations.  The two families have strong historical ties in Tripoli, Lebanon, the land of their heritage.  The families currently live together.  Both are very involved in their local Islamic community.

Mansour’s illness

1. Infantile Osteopetrosis is a hereditary disorder caused by a defect in the cells that normally cause bone resorption.  The bones become dense and lose their normal marrow cavity.  This leads to a narrowing of bony passages which cause nerve compression and commonly lead to visual impairment, deafness, facial muscle weakness, hydrocephalus (the accumulation of fluid in the cranium often causing enlargement of the head) and breathing difficulties.  Because of the restriction of normal marrow spaces in the bone, blood is unable to develop normally and begins to develop in the liver and spleen causing enlargement of these organs, anaemia, low platelet count and lowered white cell counts with increased risk of infection. 

2. The evidence of the medical experts explained that most children with severe symptoms, some of which are exhibited by Mansour, die within the first year of life.  The overall survival of all diagnosed patients is approximately 30% at six years.

3. At four months of age Mansour presented with proptosis, visual failure, a facial nerve palsy and evolving hydrocephalus.  His hearing has not yet been significantly affected and, whilst he has an enlarged liver and spleen, his blood count is currently normal.

4. There is some discrepancy in the evidence as to his life expectancy; the most hopeful estimate is that without a transplant, he would be likely to die in one to five years and the most dire estimate is six months. 

5. The survival rate for bone marrow transplants generally is 40-79% and that “matched sibling” donors offer the best chance of success.  Mansour has no siblings.  A search of the unrelated donor registries indicated that there is no “matched” volunteer donor available.  Extensive testing of all family members of several generations in Melbourne has been performed and Inaya was identified as the most suitable donor. 

6. Inaya is not a perfect match and her size limits the graft volume.  Dr T estimates that Mansour would have a 50-60% chance of successful engraftment and cure were the proposed procedure to go ahead.

The physical impact on Inaya

1. Medical examination by an independent senior paediatrician, Dr S, shows that Inaya is a normal and healthy child and that there are no contraindications to the procedure. 

2. Aside from the risks associated with a general anaesthetic, the procedure of bone marrow harvest is “atraumatic” and not likely to have any long-term effects on Inaya.

3. The father of Inaya says that he considers it “almost [his] duty to do anything to assist” Mansour’s mother and her family and that the Islamic community is supportive of this application.  It is very important to understand however that Inaya’s father insists that he is not under “any undue pressure” from Mansour’s family or from the Islamic community to consent to the proposed procedure or to bring this application.  He is also perplexed as to why the Court needs to be involved at all.

The procedure for Inaya

1. In order to conduct a bone marrow harvest, a general anaesethetic is required.  Dr M, a specialist paediatric anaesthetist, says the process that would be involved in administering the anaesthetic in summary is:

   a)A pre-anaesthesia consultation, of generally 90-120 minutes, would take place in which the child will be assessed by an anaesthetist and the anaesthetic process discussed with child’s parents;

   b)The anaesthetic would be administered by intravenous injection or by inhalation, that is by a mask;

   c)A breathing tube would be placed in the child’s trachea or windpipe;

   d)Inaya would receive medication for post-procedural discomfort;

   e)Intravenous fluid would be administered to compensate for blood loss;

   f)Additional analgesia may be administered in the initial recovery period if required.

1. Dr T, Haematologist/Oncologist at Royal Children’s Hospital, says that the process is “relatively atraumatic”.  She states: 

   [Inaya] would suffer only temporary physical discomfort, she would not require a blood transfusion and there would be no long lasting physical effects from the procedure if taken.

   … - there may be some bruising and soreness for a day or two but many children of this age appear relatively unperturbed after initial post-operative recovery… If the procedure is performed in the morning, the child is often able to be discharged home by evening, or if unsettled, a one night hospital stay may be necessary.  Most children have returned to normal activity within a few days.

2. The main physical effects upon Inaya resulting from authorisation of the procedure would be the effects associated with the general anaesthetic.

3. The risks posed by general anaesthetic are death, dental trauma and peripheral nerve injury.  There is no specific data detailing the risk faced by a healthy one year old.  The medical evidence about the risk of death for Inaya, were she to be given a general anaesthetic, would be significantly less than 1:67 000.  I also accept the evidence that Inaya would face a 1:10, 000 risk of dental trauma and a 1:10 000 risk of peripheral nerve injury.  These are risks which parents consider and no doubt in most cases, take, every day of the week. 

4. The short term side effects that Inaya may suffer following the general anaesthetic are post-operative nausea and vomiting, sore throat, bruising at the site of intravenous cannulation and behavioural or sleep disturbance.  The parents have no doubt considered these effects and are not concerned about them.

Does s 44(5)(b) of the Victorian Act provide the court jurisdiction to make an order of the type sought?

1. Section 44 of the Victorian Act, so far as it is relevant, prohibits the removal of tissue without a consent by the donor except relating to any “other” act authorized by law.

2. There is nothing in the Act that clarifies how that authorization by law can be obtained. It is important to note that s 44 is the provision relating to offences and hence, s 44(5) provides possible defences to any prosecution that might arise if consent was not given.

3. The consent referred to must relate to adults including parents consenting on behalf of their children.

4. It does not seem that the Victorian Act contemplated this Court authorising the medical practitioner to follow the consent of an adult in a situation like this; if it had, it would have stipulated it. However, to the extent that the Victorian Act recognizes that a court including this Court is empowered to give the authorization, I am content to say that the parents may consent to the procedure so that it does not create a breach of the Victorian Act.

Jurisdiction to make an order under the Family Law Act

1. If the view expressed above in paragraph 47 is not correct, the power to make a parenting order permits the making of an order that parents can consent to the procedure.

2. Consenting to medical treatment on behalf of a child is usually within the scope of parental responsibility.  Certain special medical procedures however, lie beyond the ordinary scope of parental power and require the authorisation of the Court.[4] 

   [4] Secretary, Department of Health and Community Services v JWB andSMB (“Marion’s case”) (1992) FLC 92-293; (1992) 16 ALJR 300; (1992) 106 ALR 385; (1992) 15 FamLR 392; (1992) 175 CLR 218; (1992) 6 AJFL 97; P v P (1994) FLC 92-462; (1994) 181 CLR 583.

3. The Court has jurisdiction to authorise special medical procedures by virtue of the welfare power vested in it by s 67ZC of the Family Law Act.[5]   This power is similar to the traditional parens patriae jurisdiction, but without the requirement that the child be a ward of the state. [6]

   [5] Marions case, op cit, 1.

   [6] Ibid.

4. In Minister for Immigration and Multicultural and Indigenous Affairs v B[7], the High Court made it clear that s 67ZC does not itself expressly give jurisdiction in respect of a “matter” for the purposes of the Constitution in that it does not refer to any substantive rights, privileges, duties or liabilities or the persons who can apply for or be made subject to, an order under s 67ZC.

   [7] [2004] HCA 20

5. The “welfare jurisdiction” of the Family Court conferred by s 67ZC is not at large and therefore any application of that section is dependent upon some other provision in Part VII of the Act creating a “matter” to which the jurisdiction conferred in s 67ZC can be attached.

6. If parents are allowed to make decisions about tissue transfer between their children then subject to the medical practitioners being permitted to undertake the procedure, that would be a matter that would fall within the parental responsibility position described in s 61C(1); that is, the ordinary incidence of parenting responsibility. As such, this is a “matter” which, to the extent that any confirmation is needed, the parens patriae provision of s 67ZC is attached. The Court has power to determine what is a parental responsibility and as such, the power to make an order of any nature that relates to the welfare of the child Inaya.

7. For the Court to have the power to say that such a procedure can be undertaken and as part of the ordinary incidence of parenting responsibility however, creates a situation which is at odds with and inconsistent with the prohibition of that procedure in the Victorian Act. To the extent that the inconsistency in the two provisions occurs, my view is that the Commonwealth law must apply.

8. Under s 64B(2)(i) the Court also has the power to make a parenting order which deals with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. 

Re: GWW v CMW

1. Re GWW v CMW[8]

   involved an application for authorisation from the Court to remove bone marrow from a ten year old boy to be transplanted into the body of his aunt.  Hannon J held that the proposed medical procedure lay outside the realm of parental authority, that it came within

   
   

   s 67ZC of the Family Law Act and that the Court was justified, and required to, intervene. Hannon J stated at 84-109:

   The circumstances of the present case constitute a “special case” namely that the purpose is to donate tissue to a third party without any physical benefit to the donor, and it involves general anaesthetic and possibly the injections of a drug. Hence it is a non-therapeutic procedure which at the very least will have an immediate adverse effect upon the child regardless of it not being carried out to promote his physical welfare. The responsibility of the court to protect the welfare of children justifies an intervention. 

   [8] op cit

2. With respect, I am not sure that that was a “special case”. The Victorian Act currently permits parents to consent to the procedure on behalf of their child, albeit in circumstances limited to transplants between siblings or between child and parent, and therefore the bone marrow harvest procedure cannot be considered a “special medical procedure” in the sense of Marion’s case.  Were Inaya and Mansour siblings instead of cousins, this matter would never have been brought before the Court.

3. In Marion’s case the majority of the High Court held that the authorisation of certain medical treatment of a child of a marriage, unable to consent to that treatment, is directly related to the protection and welfare of the child and further that it arises out of the relevant marriage. The relevant provisions of Part VII of the Family Law Act therefore constitute a law with respect to marriage within s 51(xxi) of the Constitution. The Court held that granting orders authorising a special medical procedure and declaring that parents have a right to consent to the particular special medical procedure being performed on their child, is a power directly related to parental rights in relation to divorce or matrimonial causes and therefore lies within the power granted by

   
   

   s 51(xxii) of the Constitution. These findings were reaffirmed by the High Court in P v P.

4. Sterilisation was described in Marion’s case as “invasive, irreversible and major surgery”.[9]  A bone marrow harvest whilst invasive is not irreversible and, although it requires a general anaesthetic, is not considered major surgery.  Bone marrow is regenerative tissue and the medical evidence in this case shows the procedure to be a routine operation with minimal risks commonly performed on young children. 

   [9] Marion’s case, op cit, at 77-256.

5. In Marion’s case, the High Court found that court intervention was required because of the significant risk of making the wrong decision and the “particularly grave” consequences of a wrong decision.  The High Court made it clear that most decisions relating to medical matters fell within normal parental responsibility.  If that were not so, how could the piercing of the ears of a child or the ritual circumcision of a child be permitted without court order.  These are matters within normal parental responsibility.  Irreversible and highly invasive surgery such as sterilization of a child were not within normal parental responsibility and needed court permission.    

6. The difficulty that would be faced by parents were they required to apply to the court for authority before consenting to a range of non-therapeutic procedures was acknowledged by the majority in Marion’s case. They stated at 79-182:

   [W]e acknowledge that it is too costly for most parents to fund court proceedings, that delay is likely to cause painful inconvenience and that the strictly adversarial process of the court is very often unsuitable for arriving at this kind of decision.  These are clear indications of the need for legislative reform, since a more appropriate process for decision-making can only be introduced in that way

7. Bone marrow transplants between siblings are already recognised by the Victorian Act as being within normal parenting responsibility. The problem only arises here as it did in GWW v CMW because of the statutory prohibition.  If the issue of the prohibition can be overcome, it must follow that the consent to the procedure is within parental responsibility.

The inconsistency of the laws

1. The Victorian Act permits parents to consent to their children donating human tissue to a sibling or parent where the donation would be for the (presumable) psychological welfare of the donor child but notwithstanding the same psychological welfare of the same child, not to donate to a non-sibling or parent. To my mind, that creates a situation where the law of the Commonwealth says that a donation situation is within parental responsibility but a State law says that it is not and that there is therefore an inconsistency.

2. Section 109 of the Constitution provides that if a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the State law, to the extent of its inconsistency, is invalid (in the sense of being inoperative[10]). 

   [10] Carter & ors v Egg Pulp Marketing Board for the State of Victoria [1942] HCA 30; (1942) 66 CLR 557.

3. To the extent that the inconsistency in the two provisions occurs, my view is that the Commonwealth law must apply.

4. In University of Wollongong v Metwally[11] Gibbs CJ said[12]:

   When a law of a State is inconsistent with a law of the Commonwealth and becomes, to the extent of the inconsistency, invalid, the invalidity is brought about by s109 of the Constitution and not directly by the law of the Commonwealth.

   [11] (1984) 158 CLR 447

   [12] Ibid, 455.

5. Deane J said[13]

   Section 109 of the Constitution is not concerned with legal fictions. It is concerned with the reality of contemporaneous inconsistency between the valid law of the Commonwealth and an otherwise valid law of a State. According to its terms, its operation is immediate. Its terms are unqualified and self-executing. If there is inconsistency between an otherwise valid law of a State and a valid law of the Commonwealth the State law shall be, to the extent of the inconsistency, invalid.

   [13] Ibid, 478.

6. In Clyde Engineering Co Ltd v Cowburn[14] the High Court said that the inconsistency between Commonwealth and State laws can exist in any one of three situations:

   (a)      where simultaneous obedience is impossible;

   (b)where one law takes away a right or privilege conferred by the other;  and

   (c)where the State law invades a field which the Commonwealth was intended to cover.

   [14] (1926) 37 CLR 466.

7. These categories were recently acknowledged by the High Court in Telstra Corporation v Worthing.[15]  It has also been articulated in recent cases that the situation giving rise to inconsistency is that the State law alters, impairs or detracts from the operation of the Commonwealth law.[16]

   [15] (1997) 197 CLR 61.

   [16] See Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618 per Dixon J; Commonwealth v Western Australia (1999) 196 CLR 392 at 439-440 and Telstra Corporation v Worthing (1997) 197 CLR 61.

8. In Western Australia v Commonwealth[17] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said[18]:

   If the Commonwealth intends to make a law the exclusive and exhaustive law upon a subject within its legislative power, the intention may appear from the text or from the operation of the law.  The text may reveal the intention either by implication or by express declaration.  And if it be within the legislative power of the Commonwealth to declare that the regime prescribed by the Commonwealth law shall be exclusive and exhaustive, it is equally within the legislative power of the Commonwealth to prescribe that an area be left for regulation by State law.

   [17] (1995) 183 CLR 373.

   [18] Ibid, 466.

9. Apart from the provisions of s 69ZK relating to children under the care of a person under a child welfare law, the Commonwealth law appears to me to be exclusive and exhaustive in relation to parental responsibility in relation to children and their welfare. 

10. As such, it is my view that in respect of this particular case relating to the welfare of Inaya, the Victorian Act is inoperative by virtue of s 109 of the Constitution.

11. In P v P the High Court was faced with an analogous problem regarding the inconsistency of State and Commonwealth laws. That case involved an application by the parents of an intellectually disabled girl in New South Wales for an order from the Court authorising her sterilisation. The procedure, if allowed, was to be performed in New South Wales. The medical procedure was contrary to Part 5 of the Guardianship Act 1987 (NSW) which established a statutory scheme for the regulation of dental and medical treatment of incapable persons, particularly s 35(1) which prohibited, under criminal sanction, the administration of treatment not authorised by Part 5 of the Act.

12. The High Court held that pursuant to s 109 of the Constitution, the Guardianship Act 1987 (NSW), in so far as it established a general prohibition on medical and dental treatment of incapable children of a marriage, was invalid and that the Family Court had the power under the relevant provisions of Part VII of the Family Law Act to make the proposed orders.

13. In P v P the majority said:[19]

    A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done. Of course, the nature of the jurisdiction or the matters which have historically been determined in the exercise of that or a like jurisdiction may suffice to make clear such a contrary intent.

    Quite apart from any question of constitutional power, the reason why a law conferring jurisdiction in general terms is to be construed in the manner indicated is that it is ordinarily to be presumed that it is the intent of the Parliament that jurisdiction conferred in general terms will be exercised in the context of, and within the confines imposed by, the ordinary criminal law of the relevant State or Territory. That approach to construction is prima facie applicable to the provisions of the Family Law Act conferring welfare jurisdiction with respect to children of a marriage upon the Family Court.

    On the other hand, that ordinary approach to construction does not extend to the case where the State or Territory prohibition under criminal sanction is not imposed solely as part of the ordinary criminal law, but is imposed as an integral part of a statutory scheme conferring upon a local judicial or administrative body jurisdiction or powers which overlap or compete with the jurisdiction conferred by the Commonwealth law.

    [19] P v P, op cit, 80-787.

14. Finding as I do that the consent to a bone marrow harvesting procedure is within parental responsibility but that there is a prohibition on the extent of that consent by Victorian law, gives rise to an inconsistency between the State and Federal laws. The Victorian Act intrudes directly into the welfare jurisdiction of the Family Law Act and hence, into the field of parental responsibility concerning the welfare of a child and is therefore inoperative in this case if a parenting order is made which is inconsistent with the Victorian Act.

Parenting orders

1. Part VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.

2. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.

3. Because of s 61C(3), joint parental responsibility is subject to any order of the Court and s 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

4. Section 64B(2) provides that a parenting order may deal with a number of quite specific things but the list includes:

   …

   (d)the allocation of parental responsibility for a child;

   ...

   (i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

5. Section 64B(3) provides:

   a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

6. Major long-term issues are defined to be issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues about the child's health.

7. Section 60CA and s 67ZC(2) of the Family Law Act provide that in making the requested orders authorising the performance of a bone marrow harvest upon Inaya, her best interests (and not those of Mansoud) must be the paramount consideration.

8. In L and GM v MM[20], Warnick J stated that:[21]

   …the "best interests of the child" is not a value or consideration which sits amongst the pertinent facts and values in a child welfare case. It is the perspective from which all other facts and values must be viewed. It is not part of the evidence and considerations which fall for deliberation, it is the legal principle which provides the focus of the deliberation.

   [20] (1994) FLC 92-449; 17 FamLR 357

   [21] Ibid, 80,679.

9. The controversial issue in this case is that the procedure is for the benefit of a third party, outside of the immediate family unit, and not directly for the child.

10. The father of Inaya submitted that the proposed procedure is in his daughter’s best interests.  In his supporting affidavit he said:

    …I believe it will be in [INAYA’S] best interest that she grow up in a family that has done all within its power to avert grief rather than having experienced the trauma of losing a family member... 

    Mr. Kamran is concerned about the negative impact upon his daughter if this application were denied. 

The psychological impact on Inaya

1. In Re GWW and CMW consideration was also given to the possible anti-social developments of the child if the Court did not allow the special medical procedure.  It was hypothesised by medical experts in that case that, were the application denied, the child may be “puzzled and confused” at being forbidden from helping the proposed donee and that:

   …the confusion and puzzlement may manifest itself in future years in a lack of respect for authority and particularly for the court system.

2. In the case of Inaya, Mr P a clinical psychologist specialising in child and family psychology said:

   …what also needs to be considered is how she and the family would feel in the event that her non-involvement in the procedure was the “cause” of [Mansour’s] death. In a family in which the connections are so intense and emotional and social reliance so great, the failure to act protectively and to make self sacrifice for the sake of another family member would be, potentially great.

   He went on to say:

   From a psychological perspective, there are some obvious implicit benefits to [Inaya], as a member of this family unit, for her to be allowed to be the donor for her cousin. It is not just the impact on her, but the impact upon her as a member of a closely knit family unit, clearly driven by collective support that needs to be considered. At its most basic, [Inaya] should be allowed to be the donor for her cousin because this is the most likely intervention to save his life. At another level however she should be allowed to do so because as a member of this larger family unit, this is also what should be done. The implication is that even the youngest family members need to be considered and decisions made appropriately...

3. The relationship between these two very young children is of particular importance.  The families of each child are currently living together.  Inaya and Mansour will grow up closely together.  It is the interests of Inaya that this relationship be preserved if possible.

4. Inaya may suffer psychological harm derived from guilt, self-blame and exposure to a traumatised and grief-stricken family and community, as well as the loss of important relationships if the procedure was not performed. 

5. This Court has power to make a parenting order as previously defined if it is in the best interests of the child to do so.  In all of the circumstances, I find that it is in the best interests of Inaya to make orders.

6. It follows that the medical practitioners are able to rely upon the consent of the parents to lawfully carry out the procedure.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: