Re: Sarah - [2014] FamCA 208

FAMILY COURT OF AUSTRALIA

RE: SARAH

[2014] FamCA 208

FAMILY LAW – CHILDREN – Whether medical procedure requires authorisation – application brought by the parents and supported by the medical practitioners involved – where the child has a disorder of sexual development – Turner Syndrome – gonadectomy – finding that the proposed treatment does not require Court authorisation – consideration of whether the Court has the power to make the declaration sought – declaration made.

Family Law Act 1975 (Cth)

Family Rules 2004 (Cth)

Duroux and Martin (1993) 17 Fam LR 130
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
In the marriage of Smith (1979) 5 Fam LR 169
Knight v FP Special Assets Ltd [1992] HCA 28
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175

Re: Jamie [2013] FamCA

FC 110
Re: Sean and Russell (Special Medical Procedures) [2010] FamCA 948
R v Ross-Jones and Another; Ex parte Beaumont (1979) 4 Fam LR 598
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218

APPLICANT:

The Mother

RESPONDENT:

The Father

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

28 March 2014

JUDGMENT OF:

Macmillan J

HEARING DATE:

24 March 2014

REPRESENTATION

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

ORDERS

IT IS DECLARED THAT

A gonadectomy to remove from the child SARAH born … 1997 (“Sarah”) the gonadal tissue that has failed to develop into ovaries as a result of 45X/46XY Turner Syndrome and such other proportionate and appropriate surgical, hormonal, psychiatric or psychological treatment as may be recommended for Sarah by a medical practitioner from time to time for the treatment of 45X/46XY Turner Syndrome are not medical procedures requiring the authorisation of the Family Court of Australia pursuant to s 67ZC of the Family Law Act1975 (Cth).

IT IS FURTHER ORDERED THAT

The applicant parents the Mother and the Father be at liberty to provide a copy of the reasons for judgment dated 28 March 2014 and the orders dated 28 March 2014 to all persons involved with Sarah’s treatment and welfare.
For the purposes of publication of these orders and reasons for judgment as authorised pursuant to s 121(9) of the Family Law Act 1975 (Cth):
a)   the full name of the child;
b)     the child’s family members and their occupations;
c)     the hospital;
d)     the Independent Children’s Lawyer;
e)     the child’s medical practitioners;
f)   the child’s school;
g)     the Court file number;
h)     the name of the Family Report writer;
i)   the State of Australia in which the proceedings were initiated;
j)   the name of the parents’ lawyers; and
k)     any other fact or matter that may identify the child;

shall not be published in any way and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by…

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: Sarah

Details

AGLC: Re: Sarah [2014] FamCA 208
Case: [2014] FamCA 208
Decision Date: 28 March 2014

CaseChat Overview and Summary

In the matter of Re: Sarah, the applicant parents sought declarations from the Family Court of Australia concerning medical treatments for their child, Sarah, who suffers from 45X/46XY Turner Syndrome. The dispute centred on whether certain medical procedures, specifically a gonadectomy and other treatments recommended for Sarah's condition, required the authorisation of the Family Court under section 67ZC of the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was to determine whether a gonadectomy to remove gonadal tissue that had failed to develop into ovaries due to Sarah's 45X/46XY Turner Syndrome, along with other proportionate and appropriate surgical, hormonal, psychiatric, or psychological treatments recommended by a medical practitioner for the condition, constituted medical procedures requiring the Family Court's authorisation pursuant to section 67ZC of the *Family Law Act 1975* (Cth).

Macmillan J declared that the proposed medical treatments for Sarah's 45X/46XY Turner Syndrome, including the gonadectomy and other recommended interventions, were not medical procedures requiring the authorisation of the Family Court under section 67ZC of the *Family Law Act 1975* (Cth). The Court further ordered that the applicant parents be at liberty to provide a copy of the judgment and orders to all persons involved with Sarah's treatment and welfare. Strict provisions were made for the anonymisation of reasons for judgment and orders for publication, prohibiting the disclosure of identifying details of the child, family members, and involved professionals, in accordance with section 121(9) of the *Family Law Act 1975* (Cth). The Court also ordered that no person could search the court file without judicial leave, that the orders could only be varied by further court order pursuant to section 64D(2) of the *Family Law Act 1975* (Cth), and that the initiating application be dismissed, with the matter removed from the list of cases awaiting hearing.

Orders

Orders of the court

IT IS DECLARED THAT

1. A gonadectomy to remove from the child SARAH born … 1997 (“Sarah”) the gonadal tissue that has failed to develop into ovaries as a result of 45X/46XY Turner Syndrome and such other proportionate and appropriate surgical, hormonal, psychiatric or psychological treatment as may be recommended for Sarah by a medical practitioner from time to time for the treatment of 45X/46XY Turner Syndrome are not medical procedures requiring the authorisation of the Family Court of Australia pursuant to s 67ZC of the Family Law Act 1975 (Cth).

IT IS FURTHER ORDERED THAT

2. The applicant parents the Mother and the Father be at liberty to provide a copy of the reasons for judgment dated 28 March 2014 and the orders dated 28 March 2014 to all persons involved with Sarah’s treatment and welfare.

3. For the purposes of publication of these orders and reasons for judgment as authorised pursuant to s 121(9) of the Family Law Act 1975 (Cth):

a) the full name of the child;

b) the child’s family members and their occupations;

c) the hospital;

d) the Independent Children’s Lawyer;

e) the child’s medical practitioners;

f) the child’s school;

g) the Court file number;

h) the name of the Family Report writer;

i) the State of Australia in which the proceedings were initiated;

j) the name of the parents’ lawyers; and

k) any other fact or matter that may identify the child;

IT BEING NOTED THAT each party shall be handed one full copy of the orders dated 28 March 2014 with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of the reasons for judgment delivered 28 March 2014 that includes the file number and the lawyers’ names.

4. No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

5. Pursuant to s 64D(2) of the Family Law Act 1975 (Cth) these orders may only be varied by further order of this Court.

6. The initiating application filed 20 March 2014 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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