Re Marlie - [2021] NSWSC 973

Supreme Court

New South Wales

Medium Neutral Citation: Re Marlie [2021] NSWSC 973
Hearing dates: 27 July 2021
Date of orders: 27 July 2021
Decision date: 27 July 2021
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Authorise the hospital to administer Hepatitis B vaccine and immunoglobulin injection to child. Order the mother to present child to hospital for purposes of administering treatment within 12 hours of birth.

Catchwords:
CHILD WELFARE – parens patriae jurisdiction – order sought by hospital to administer Hepatitis B vaccine and immunoglobulin injection to baby – where mother of child diagnosed with Hepatitis B – where parents withhold consent for treatment primarily on religious grounds – hospital authorised to carry out treatment

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Supreme Court Act 1970 (NSW), s 23

Cases Cited:
Director-General, Department of Community Services v BB [1999] NSWSC 1169
Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193
Re Bernard [2009] NSWSC 11
Royal Alexandra Hospital for Children v Joseph [2005] NSWSC 422
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; [1992] HCA 15
Sydney Children’s Hospital Network v X [2013] NSWSC 368
X v Sydney Children’s Hospital Network (2013) 85 NSWLR 294; [2013] NSWCA 320

Texts Cited:
Nil

Category: Procedural rulings
Parties: Northern NSW Local Health District (Plaintiff)
Mother (First Defendant)
Father (Second Defendant)
Representation:
Counsel:
M Anderson (Plaintiff)
Solicitors:
NSW Crown Solicitors (Plaintiff)

File Number(s): 2021/214942
Publication restriction: The orders made today prohibit the publication or disclosure of any information tending to reveal the identity of the child (known as “Marlie”), the child’s mother and father, the hospital where the child is to receive treatment, any witness in the proceedings and any of the medical practitioners, nursing staff or other persons who have provided or will provide treatment to the child.

Judgment – Ex Tempore (Revised)

These reasons deal with an urgent application brought by the plaintiff, Northern NSW Local Health District, late this afternoon for orders in relation to a baby that was born at around midday today to a mother who has been diagnosed with Hepatitis B. In these reasons I refer to the baby as Marlie (not her real name), the first and second defendants, who are the parents of Marlie, as the “Mother” and “Father” respectively, and the hospital at which Marlie was born as the “Hospital”.
By summons which the plaintiff was granted leave to file in Court this afternoon, the plaintiff seeks the following orders:

(1) That until further order, the Hospital be authorised to carry out, by:
(a) any qualified member of staff of the Hospital; or
(b) any qualified medical practitioner visiting the Hospital

the following treatment in relation to the Child:
(i) The administration of active vaccination with H-B Vax II (paediatric) and passive vaccination with Hepatitis B immunoglobulin (the Treatment); and
(ii) treatment ancillary to…

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 Marlie

Details

AGLC: Re Marlie [2021] NSWSC 973
Case: [2021] NSWSC 973
Decision Date: 27 July 2021

CaseChat Overview and Summary

In the case of Re Marlie, the parties involved were the parents of an infant child diagnosed with Hepatitis B, who were in dispute with a hospital over the administration of a Hepatitis B vaccine and immunoglobulin injection. The parents refused to consent to the treatment on religious grounds, and the hospital sought an order under its parens patriae jurisdiction to administer the treatment. The case was heard in the Family Court of Australia.

The primary legal issue for the court was whether it had the authority to override the parents' refusal of consent and order the hospital to administer the treatment in the best interests of the child. The court needed to consider the principles of parens patriae jurisdiction, the rights of the parents as guardians, and the welfare of the child.

The Family Court found that it had the authority to make an order under its parens patriae jurisdiction, as the refusal of consent by the parents was not in the best interests of the child. The court emphasised the importance of protecting the child's health and welfare, and the potential long-term consequences of not administering the treatment. The court also noted that the parents' religious beliefs were not a sufficient basis to override the welfare of the child. The court ultimately found that the hospital was authorised to carry out the treatment.

The court ordered that the hospital was authorised to administer the Hepatitis B vaccine and immunoglobulin injection to the child, despite the parents' refusal of consent. The court also noted that ongoing monitoring and support would be required to ensure the child's welfare and to address any concerns the parents may have had.

Orders