Re: Sarah
[2014] FamCA 208
•28 March 2014
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 Re: Jamie [2013] FamCA FC 110 |
| 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shall not be published in any way and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well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 the Court to non-parties without further contrary order of a Judge 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.
No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
Pursuant to s 64D(2) of the Family Law Act 1975 (Cth) these orders may only be varied by further order of this Court.
The initiating application filed 20 March 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: Sarah 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 NUMBER: By Court Order File Number is suppressed
| The Mother |
Applicant
And
| The Father |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The child in this matter, Sarah, will turn 17 years of age in July this year. Sarah is much smaller than her classmates of the same age and, unlike her classmates, is not menstruating and has not developed in the way one would normally associate with puberty.
In late 2013 Sarah was diagnosed with 45X/46XY Turner Syndrome, which is described as a “disorder of sexual development” where “prior to birth there is atypical development of the sex chromosomes, the testes or ovaries, or the external genitalia.” Sarah does not have functioning gonads and there is a risk of her developing a malignancy in the residual streaks of tissue.
Following the initial diagnosis, Sarah and her parents were advised that the administration of growth hormones would increase her height and, on the basis of that medical advice, Sarah’s parents applied to the Department of Health for access to the Pharmaceutical Benefits Scheme so that Sarah could commence growth hormone treatment. The Department declined Sarah’s parents’ request to subsidise her treatment because of the risk to Sarah of developing a malignancy from that treatment.
Whilst for Sarah her small stature and the fact that she has not experienced puberty loom large, it is the risk of Sarah developing cancer that is the primary reason for the treatment recommended by her treating medical practitioners, including a gonadectomy.
In this case, there is unanimous agreement between Sarah, her parents, all of the relevant medical experts, and the Independent Children’s Lawyer that Sarah should receive the recommended treatment.
The issue that I must determine is whether the proposed treatment, and in particular the gonadectomy, is a medical procedure which needs to be authorised by this Court.
Legal Principles
One of the objects of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) is to ensure that “parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children” (s 60B(1)(d)).
Except where parental responsibility has been displaced by a parenting order made by a court, each of the parents of a child has parental responsibility for that child until he or she turns 18 years of age (s 61C). Parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B).
In determining what is in a child’s best interests, one of the matters the Court must consider is the extent to which each of the parents of that child has “participate[d] in making decisions about major long-term issues in relation to the child” (s 60CC(3)(i)). Major long-term issues are issues in relation to a child’s health, and it is generally a matter for the parents of a child to make decisions with respect to their child’s health. Such decisions may include consenting to treatment recommended by the child’s medical practitioners, including surgery.
There are, however, certain medical procedures and treatment which the High Court of Australia has said are outside the realms of parental responsibility that is usually exercised by a parent and which, therefore, require a determination of this Court. In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 (‘Marion’s case’) the High Court per Mason CJ, Dawson, Toohey and Gaudron JJ said at paragraphs 250 and 251 as follows:
But first it is necessary to make clear that, in speaking of sterilisation in this context, we are not referring to sterilisation which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.
As a starting point, sterilisation requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorise sterilisation as a special case. Court authorisation is required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.
In Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175 Nicholson CJ summarised the decision in Marion’s case at paragraph 153 as follows:
Marion’s case involved an application for the sterilisation of a 14-year-old teenager with a severe intellectual disability for the purpose of “preventing pregnancy and menstruation with its psychological and behavioural consequences”. The gravamen of the decision was that if a child or young person cannot consent her/himself to a medical procedure, parental consent (which for present purposes may be equated with that of a guardian) is ineffective where the proposed intervention is:
· invasive, permanent and irreversible; and
· not for the purpose of curing a malfunction or disease.
Following the decision in Marion’s case, substantial amendments were made to the Act, including the insertion of s 67ZC which provides as follows:
Orders relating to welfare of children
(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB and 60CG deal with how a court determines a child’s best interests.
Division 4.2.3 of the Family Rules 2004 (Cth) sets out the procedure to be followed in applications requiring Court authorisation of medical procedures. Rule 4.09(1) provides that evidence must be given that satisfies the Court that the proposed medical procedure is in the best interests of the child. Pursuant to rule 4.09(2) that evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following matters:
(a)the exact nature and purpose of the proposed medical procedure;
(b)the particular condition of the child for which the procedure is required;
(c)the likely long-term physical, social and psychological effects on the child:
(i)if the procedure is carried out; and
(ii)if the procedure is not carried out;
(d)the nature and degree of any risk to the child from the procedure;
(e)if alternative and less invasive treatment is available -- the reason the procedure is recommended instead of the alternative treatments;
(f)that the procedure is necessary for the welfare of the child;
(g)if the child is capable of making an informed decision about the procedure -- whether the child agrees to the procedure;
(h)if the child is incapable of making an informed decision about the procedure -- that the child:
(i)is currently incapable of making an informed decision; and
(ii)is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;
(i)whether the child’s parents or carer agree to the procedure.
The decision of the Full Court in Re: Jamie [2013] FamCA
FC 110 (‘Re: Jamie’) makes it clear that if the proposed treatment falls within the ambit of Marion’s case and if the child is not Gillick competent – which will be discussed later in these reasons – the proposed treatment must be first authorised by the Court. However, if the child in question is Gillick competent then that child can consent to the treatment and it is not necessary for the Court to authorise that treatment.
Documents relied upon
The mother, who is the applicant in these proceedings, relied upon the following affidavits in support of her application:
a)her affidavit filed 21 March 2014;
b)the affidavit of the respondent father filed 21 March 2014;
c)the affidavit of Dr H filed 21 March 2014;
d)the affidavit of Professor Y filed 21 March 2014;
e)the affidavit of Mr P filed 21 March 2014; and
f)the affidavit of Ms W filed 21 March 2014.
The father, who is described as the respondent in these proceedings, is the respondent in name only as he and the mother both agree that Sarah should have the recommended treatment.
The Independent Children’s Lawyer, who was appointed by way of order made on the Friday before the hearing before me, submitted that the recommended treatment was not a “special medical procedure” and supported the mother’s application that Sarah should have the proposed gonadectomy as being in Sarah’s best interests. The Independent Children’s Lawyer did not file nor seek to rely on any other evidence.
The reasons for and the nature of the medical procedure
Following the diagnosis of Turner Syndrome, Sarah was referred by Dr M to the X Hospital (‘the Hospital’) for treatment.
On 7 January 2014 Sarah was seen by Dr H, a consultant paediatric endocrinologist at the Hospital. Dr H has a subspecialty interest and expertise in disorders of sex development and it is her evidence that she has had over 30 academic publications in scientific journals and textbooks, predominantly in the area of sex development and gender identity disorder in children. Dr H is currently completing a PhD in disorders of sex development, for which she has been awarded supporting scholarships and research grants by a university and several research organisations.
In her report Dr H made note of the differences between disorders of sex development, such as Turner Syndrome, where there are atypical biological developments prior to birth and gender identity disorders where there is a psychological identification with a gender different to the biological sex. The differences between the two conditions being relevant both for the purposes of identifying the cause and associated health risks and in particular for the purposes of the matters I must consider, the nature and consequences of the options available for treatment.
It is Dr H’s evidence that “[Sarah] has a number of clinical and blood parameters which indicate absence of gonadal function. That is, at age 16 she has no signs of any spontaneous pubertal development, her levels of Anti-Mullerian Hormone (AMH) - made by testes or ovaries are undetectable, and she has raised levels of Follicle Stimulating Hormone (FSH) and Luteinising Hormone (LH) – made in increased amounts by the brain to stimulate poorly or non-functioning gonads.” It was her opinion that “[t]hese markers combined indicate that there is no gonadal function present” and that “[Sarah] does not have the possibility of either fertility or hormonal function from her own gonads, which did not develop due to her mixed sex chromosomes, and are likely to be streaks of tissue only.” In Dr H’s expert opinion, the fact that these indicators suggest that Sarah has non-functioning gonads carries with it an estimated 10 to15 per cent risk that the residual tissue will develop into cancer.
Dr H recommended, in accordance with what she says is international best practice, that in the absence of functioning gonads and the risk of a malignancy in the residual tissue, that that residual tissue be removed. Professor Y, a paediatric consultant urologist and surgeon at the Hospital, confirmed the treatment recommended by Dr H and it was his evidence that the proposed bilateral gonadectomy is a minor day procedure performed by laparoscopy.
Both Dr H and Professor Y referred to the need for Sarah to proceed through puberty, as Dr H said “for the benefit of her own health including the development of secondary sexual characteristics, adequate uterine growth, improved height and accrual of bone density.” Professor Y referred in his report to the need for the treatment “to be done urgently” as Sarah’s bone maturation is nearly complete. He also referred to the fact that the “risk of a gonadal tumo[u]r is a contraindication to the [growth hormone] therapy.”
It is Dr H’s evidence that the proposed surgery is not a sterilising procedure, as referred to in Marion’s case, as Sarah has “no potential for fertility or hormonal function of the gonads”. It is on this basis that she concluded that the proposed treatment should not be considered a medical procedure that would require Court authorisation.
Dr H also referred to the difficulty associated with monitoring Sarah’s gonads for any malignancy and the treatment of such a malignancy in the event that the surgery did not take place, as well as the long-term psychological impact upon Sarah including the fact that she would be unable to take the growth hormones to maximise her height. It is Dr H’s evidence that Sarah “has only 10 months left in which to be treated with growth hormone to improve her height … with the optimal effect only being possible for the next 3 months.”
I am satisfied and find that the proposed treatment is not a medical procedure requiring the Court’s authorisation as identified in Marion’s case. Firstly, it is not surgery for the purposes of sterilisation as was the case in Marion’s case. It is, notwithstanding the High Court’s hesitation to use that expression, “therapeutic” and the rationale for the proposed surgery is the treatment of Sarah’s disorder of sex development. It is also the case that the proposed surgery is relatively minor and non-invasive.
Gillick competence
In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Lord Scarman said at 188 and 189 as follows:
In the light of the foregoing I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.
Notwithstanding that Dr H described in some detail what she clearly considered worthy difficulties associated with an assessment of Gillick competence in this case, she ultimately concluded as follows:
[Sarah] is an intelligent and academically well performing young person. She is able to comprehend the diagnosis and rationales for the proposed treatment, and has been asking pertinent questions. She understands that gonadectomy does not involve any loss of functioning tissue, but would reduce her cancer risk, and allow her to receive growth hormone which is required urgently if her height potential is to be maximised. I believe she is competent to make this decision and understands fully both the indication for treatment and the effects of the treatment itself.
Both Ms W, a social worker at the Hospital, and Mr P, a clinical psychologist engaged by Sarah’s parents to provide an independent assessment of Sarah’s competence, confirmed Dr H’s opinion that Sarah was competent to consent to the proposed treatment.
The application
The mother in this case seeks inter alia the following orders:
1.A declaration or Order that the child [Sarah] born … 1997 (“[Sarah]”) has achieved a sufficient understanding and intelligence to enable her to fully understand what is proposed and entailed in the following treatment for 45X/46XY Turner Syndrome (a “disorder of sexual development”) as to be capable of giving informed consent to such treatment:
(a)That under the guidance of [Sarah’s] treating medical practitioners including but not limited to Dr [H] (Paediatric Endocrinologist) and Dr [Y] (Surgeon), [Sarah] undergo a gonadectomy to remove her gonadal tissue that failed to develop into ovaries as a result of her 45X/46Y Turner Syndrome.
(b)Such other surgical, hormonal, psychiatric or psychological treatment as may be recommended by [Sarah’s] treating medical practitioners from time to time.
2.Further, a declaration or order that a gonadectomy to remove gonadal tissue that has failed to develop into ovaries as a result of 45X/46XY Turner Syndrome and such other surgical, hormonal[,] psychiatric or psychological treatment as may be recommended 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)].
I have already found that I am satisfied that the proposed treatment, including the gonadectomy, is not a medical procedure which requires Court authorisation and it follows that it is not necessary to make a declaration that Sarah is Gillick competent.
As authorisation of the recommended course of treatment is not necessary, it is open to the Court to simply dismiss the mother’s application. However, it was submitted by senior counsel on behalf of the mother that for whatever reason there appears to be some hesitation or uncertainty on the part of Sarah’s treating medical practitioners and the Hospital generally about proceeding with the recommended treatment in the absence of a decision by the Court. Senior counsel submitted that in order to ensure that Sarah receives the treatment she requires I should make the declaration sought by the mother that the proposed treatment, including the gonadectomy, is not a medical procedure which requires the authorisation of the Court.
In Re: Sean and Russell (Special Medical Procedures) [2010] FamCA 948 Murphy J said at paragraphs 100 to 105, with respect to children requiring similar medical treatment as in this case, as follows:
In my view, a decision about the authorisation of the procedure contemplated falls within the scope of parental powers embraced by the parental responsibility which the parents of each of the children have by reason of being their parents.
In my view, then, it is not a procedure in respect of which court authorisation is required.
It will be clear from what I have said above that, even if court authorisation is not required, in my view, the court does have jurisdiction and power to make orders of the type sought if they can be properly classified as “parenting orders”. They can be properly so classified if they are orders about, relevantly, “any other aspect of parental responsibility”.
Parental responsibility encompasses, by definition, all the duties powers and responsibilities and authority which, by law these parents have in relation to these children: s 61B. Orders which seek to define or clarify the limits of parental responsibility are, in my view, orders which can be classified as about “any other aspect of parental responsibility”: s 64B(2)(i).
The orders sought, which in their effect are in the form of declarations, are, then, in my view, “parenting orders”: s 64B(1). The court has jurisdiction and power to make parenting orders, including an order of the type sought. That jurisdiction has been properly invoked.
There is no suggestion in this case that the applications have been brought for the purpose of abdicating to the court what would otherwise be a decision as part of parental responsibility between parents and doctors or for any other ulterior purpose of the type earlier referred to.
[Emphasis in original]In Re: Jamie the parents in their amended notice of appeal sought a declaration in the following terms:
(i)the treatment for the medical condition known as CHILDHOOD GENDER IDENTITY DISORDER is not a special medical procedure which attracts the jurisdiction of the Family Court of Australia under s[ ]67ZC of the [Family Law Act 1975 (Cth)]; and
(ii)the parents of “Jamie” do not require permission from the Family Court of Australia, or any other [c]ourt of competent jurisdiction to authorise such treatment for their child as they may be advised is appropriate.
In Re: Jamie Finn J made the following observation at paragraph 190:
In my view, it would not be in accord with the reasons of this court, or indeed within any power contained in the Act, for it to make the declaration sought by the parents in their amended notice of appeal. Nor would the order which they seek in the alternative to the declaration be in accord with the reasons of any member of this court.
It was submitted by senior counsel for the mother that the declaration sought in Re: Jamie may have been beyond the power of this Court, as Finn J observed, in that it was not confined by the reference to a particular child but was a declaration with respect to childhood gender identity disorder generally. However, insofar as the same criticism can be made of the declaration sought by the mother in this case, that can be remedied by amending the orders sought by the mother at paragraph 2 so that after the word “remove” it specifies “from [Sarah] born … 1997”, after the words “such other” it says “proportionate and appropriate”, and after the word “recommended” it specify “for [Sarah]”.
However those amendments would not address the more general observation made by Finn J in Re: Jamie as to the power of this Court to make the declaration sought by the mother. Senior counsel on behalf of the mother referred me to a number of cases in which the declaratory power of the Court has been called into question. The first of those cases was In the marriage of Smith (1979) 5 Fam LR 169, in which Lindenmayer J said at page 177 as follows:
Finally, it occurs to me that there is another and fundamental reason why this court cannot grant the present application even if it is strictly within the court’s jurisdiction. That is because the only relief sought is a declaration or declarations and the court, in my opinion, has no power to grant such relief. The court is the creature of the Act and it therefore has only such powers as are expressly granted to it by the Act or as may fairly be regarded as being necessarily incidental to the exercise of those powers.
Having identified s 78 and s 113 as the only provisions of the Act which specifically give the Court power to make declarations, his Honour did however, as senior counsel pointed out, say as follows:
Certainly s 80(k) would be wide enough to empower the court to make a declaration in an appropriate case, but as the Full Court of this court said in In the marriage of King [1977] FLC 90-299 at p 76,580 … s 80 is not itself a substantive head of power but only an ancillary one. The substantive head of power must therefore be found elsewhere in P[ar]t VIII.
Section 80(1)(k) provides that the Court, in exercising its powers under Part VIII of the Act, may “make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice”.As submitted by senior counsel there is no specific reference in s 80(1)(k) to the Court having the power to make a declaration.
I was also referred by senior counsel to Duroux and Martin (1993) 17 Fam LR 130 in which the Full Court at page 134, without having to make a final determination, called into question the power of this Court to make a declaration of paternity.
Senior counsel also referred me to what he submitted was the contrary argument and, in particular, the observations of Gibbs J in R v Ross-Jones and Another; Ex parte Beaumont (1979) 4 Fam LR 598 at [601] that “[o]nce a proceeding is within the jurisdiction of the Family Court, the power of that court to make suitable orders for the disposition of the matter is very wide. It is hardly an exaggeration to say that if the court has jurisdiction in the present case, it can make whatever orders it regards as appropriate: see ss 34(l) and 80(k).” Section 34(1) provides that “[t]he Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.” There is similarly in this section of the Act no specific reference to the Court having the power to make a declaration.
Senior counsel finally referred me to the decision of Gaudron J in Knight v FP Special Assets Ltd [1992] HCA 28. Her Honour said at paragraph 2 as follows:
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant . Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.
I am satisfied that in this case I have the power pursuant to either s 64B(2)(i), dealing with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”, or pursuant to s 67ZC, “relating to the welfare of children” to make the declaration sought by the mother, subject to the amendments proposed by senior counsel. I am satisfied that it is in Sarah’s best interests to make that declaration pursuant to s 64B(2)(i) so that Sarah can receive the treatment, including the gonadectomy, that has been recommended for her.
In addition to the declaratory relief, the mother sought interim or procedural orders that I dispense with the requirement that her application be served on the prescribed child welfare authority, that the hearing proceed without requiring the joinder or notification of any other party, and orders intended to protect the identity of Sarah, her parents, her medical practitioners and the legal practitioners in this case.
This is not a medical procedure which requires Court authorisation and, in those circumstances, it is not necessary for the mother to serve a sealed copy of the initiating application upon the prescribed child welfare authority nor is there any requirement for the joinder or notification of any other party.
I am mindful of the sensitivity of cases such as this one. Mr P reported that Sarah had “told [him] that surgery was a small step to make her life more healthy, remove the risk of developing tumo[u]rs and to give her a chance of living a more normal life with a more normal body.” He said that “[Sarah] impressed as a young person who was struggling with these issues at the very forefront of her thinking. She described having been picked on and ridiculed throughout her secondary schooling, that she is made fun of because of her height, … and because she finds it difficult to identify with her peers in relation to matters to do with social and sexual development.”
I am satisfied that it would not be in Sarah’s best interests to be identified or for any information in relation to what are clearly highly sensitive and personal issues to be circulated in any manner. Orders are necessary, particularly when information is so readily available on the Internet, to protect Sarah’s identity and prevent the circulation of any of the information relating to her case. I propose to accede to the application with respect to the anonymisation and limiting the provision of these reasons and the orders that I make.
Finally, it was submitted by senior counsel that if I accede to the mother’s application and make the declaration she seeks based upon my power to make parenting orders that there are exceptional circumstances in this case that would warrant the making of an order pursuant to s 64D(2) of the Act that the order I make may only be varied by further order of this Court. I am satisfied that in this case it is appropriate to make that order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 28 March 2014.
Associate:
Date: 28 March 2014
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