Secretary Department of Health and Community Services v JWB

[1991] HCATrans 108

_1ii,r	".l, AUSTlt.&.l.lA,,.r
-~»~~--'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl of 1991

B e t w e e n -

SECRETARY, DEPARTMENT OF HEALTH

AND COMMUNITY SERVICES

Appellant

and

JWB AND SMB

Respondents

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Intervener

ATTORNEY-GENERAL OF THE

COMMONWEALTH

Second Intervener

Appeal pursuant to order under

section 95(b) Family Law Act

1975

Marion 1 30/4/91

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 APRIL 1991, AT 2.31 PM

Copyright in the High Court of Australia

MR T.I. PAULING, QC, Solicitor-General for the Northern

Territory:  May it please the Court, I appear with

my learned friend, MR G.R. NICHOLSON, for the

appellant. (instructed by the Crown Solicitor for

the Northern Territory)

MR T.J. RILEY, OC:  May it please the Court, I appear with

my learned friend, MR P.M. BARR, for the

respondent. (instructed by Peter Martin Barr)

MR D.F. JACKSON, OC:  May it please the Court, I appear with

my learned friend, MR A. ROBERTSON, to intervene on

behalf of the Attorney-General for the Commonwealth

in support of the appellant. (instructed by the

Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

May it please the Court, I appear with my learned

friend, MR M.D. WALTER, to intervene on behalf of

the State of South Australia. (instructed by the

Crown Solicitor for South Australia)

If the Court pleases, our intervention in this

matter is confined to the issue of whether there is

a judgment, decree or order for the purposes of

section 73. We have again prepared a written

submission which we have already provided to the

Court. Might I inquire whether, in the light of

that, and as we do not seek to elaborate on it, we

might provide that to the Court now and treat that

as the sum total of our intervention?

MASON CJ: Yes, that is agreed, Mr Solicitor.

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR R. SACKVILLE, on behalf of the Attorney-General

for New South Wales. (instructed by the Crown

Solicitor for New South Wales)

Our concern is with the content of the power

conferred upon the Family Court to make orders with

respect to welfare. It would be our contention

that the content of that power is not at large, and

that it is controlled in the case of the Northern

Territory by the common law, such as this Court

declares it to be; in the case of States, by such

substantive State law as operates in relation to

sterilization procedures.

MR G.R. JAMES, QC:  May it please the Court, I appear with

my learned friend, MR J. BASTEN, for the Human

Rights and Equal Opportunity Commission described

in the appeal papers as the first intervener

intervening in the court below pursuant to the

powers in section 11 of the Hu.man Rights and Equal

Marion 2 30/4/91

Opportunity Commission Act 1986. (instructed by

the Human Rights and Equal Opportunity Commission)

MR G.L. DAVIES, QC, Solicitor-General for Queensland: May

it please the Court, I appear with my learned

friend, MR H.B. FRASER, for the State of

Queensland. (instructed by the Crown solicitor for

Queensland)

Your Honours, our position is the same as the

situation for the Attorney-General for South

Australia. Could I hand up a copy of a short

written submission, and could Your Honours take

that as our complete submission?

MASON CJ: Yes, that is agreed. Yes, Mr Solicitor.

MR PAULING:  May it please the Court. May I hand up an

outline of the applicant's submissions. I might

indicate that the first part of them deals with the

point relevant to section 73 of the Constitution

and I can inform the Court that we adopt in their

entirety the submissions made on behalf of the

Attorney-General for South Australia which will

rather shorten the argument on that point.

Your Honours, can I deal briefly with the

section 73 point. A clear distinction might be

drawn between this matter and that of Mellifont which preceded it and in which we joined in the

submissions made on behalf of the Attorney-General

for South Australia. In this case, Your Honours,

there is, in fact, an order directing that the

matter be remitted back to a single judge to be

determined in accordance with law and what we have

sought to do, Your Honours, in the case is to try

and extract the ratio decidendi that might appear

and which would bind the single judge in the way in

which he dealt with the matter.

We have done that, Your Honours, on page 3,

firstly by saying that the case is authority or the
answers on the stated case is authority for the

proposition, that the Family Court and the Supreme

Court of the Northern Territory have, in this case,

jurisdiction to sanction the proposed procedure and

that the power derives from section 64(1) of the

Act which gives to the court parens patriae

jurisdiction including the substance of wardship

jurisdiction shorn of its archaic terminology.	I
might say that that term comes out of the Watson

Report which in 1982 recommended amendments to the

Family Law Act which were adopted in 1983 and I

will be briefly touching on how that altered the

matter in terms of the giving of parens patriae

jurisdiction to the Family Court.

Marion 30/4/91

The case is further authority to the

proposition that the parents as joint guardians may
consent to the procedure without approaching the
court but it would be prudent for the protection of

the parents and the medical practitioners to obtain

that approval. I refer there to the judgments of

Justice Strauss and Justice McCall, giving the references. I might say that it is the submission

of the appellant that that part of the ratio ought

to be overturned and this Court should establish a

common law rule that parents may not lawfully
consent to a procedure of this sort; they they
need what was described in England as the third
opinion of a court and the proper court in this
case would be the Family Court or the Supreme Court
of the Northern Territory.

The case is also authority for the proposition that the international instruments scheduled to the Human Rights and Equal Opportunity Commission Act

do not form part of the domestic law of Australia

although in a case of ambiguity they may be

referred to as assisting in the determination of

the content of the common law. Again, references

are given to that. I might say that having seen

the outline of submissions on behalf of the Human

Rights and Equal Opportunity Commission that we do

not seem to be in disagreement at all in that

regard. And though a substantial submission was

prepared relating to that question, it does not

seem necessary to advance it as nobody wants to

put, as we understand it, the contrary proposition.

The fourth matter for which the case stands as

authority is that the safeguards to be applied in

deciding whether or not to approve or sanction such

a procedure should be along the lines enunciated by

Justice Pashman who delivered the majority judgment

of the Supreme Court of New Jersey in Re Grady and

those guidelines were adopted by

Chief Justice Nicholson in Re Jane and by each of

the three judges in the instant case.

So that here one is not dealing with a

situation divorced from any attempt to administer
the law because the single judge deciding the fate
of Marion, in this case, is bound by those elements

of the ratio at least. So, being mindful of the

argument advanced by the learned Solicitor-General

where there are not proceedings on foot. It is not a case where the order is somewhat academic.	for Queensland in Mellifont, this is not a case which the judge deciding the ultimate issue ought
to go about it. So that, as I say, adopting the
submissions for South Australia on the - - -

Marion 4 30/4/91

GAUDRON J:  I do not understand why the judge at first

instance has to decide anything, if your analysis
of the ratio is right that the parents can consent

or do you say you want to challenge that?

MR PAULING:  No, we say the parents should not be allowed to

consent. We are certainly challenging that.

GAUDRON J: But if this is correct, why does the judge at

first instance have to decide anything?

MR PAULING: Well, because the jurisdiction of the court has

been invoked by the parents, so each of the judges

was clear that the court had jurisdiction to grant

consent if it was sought, only

Chief Justice Nicholson, in the instant case, said

that such curial approval was necessary, but the

fact is if the parents continue with the

application and come before a judge, when he

determines - - -

GAUDRON J: But what happens at the end of the day if the

court does not consent but none the less the

parents can consent? Unless you are right, the

whole thing is an entirely academic exercise, is it

not?

MR PAULING: Yes, it would be in those circumstances, but

the question would be that if the court refused

consent, their jurisdiction having been invoked, it

would be difficult to argue that the conduct, if a

surgical procedure took place afterwards, was not unlawful but which, ultimately when we get to the substance of the matter, is the real nub of it,

whether or not to proceed in that way would be

unlawful. So that just, if I may finish on the

section 73 issue, this is a much stronger case than

Mellifont for arguing that the order of the court

is justiciable and appellable and in those

circumstances it is our submission that

Fisher v Fisher should not stand in the way of this

Court deciding on the answers given.

Can I now take Your Honours to the

Family Law Act to just deal with some definitional

matters and to look at the structure of the Act as

it applies in this case. Although it does not

inform the meaning of the word "decree" in

section 73 of the Constitution, if one turns to the

interpretation section, section 4, a "decree'' is

broadly defined to mean a:

decree, judgment or order, and includes a

decree nisi and an order dismissing an

application or refusing to make a decree or

order;

Marion 30/4/91

I merely draw attention to it as showing that, at

least in this Act, when one talks of a decree it

has a very broad sweep and - - -

TOOHEY J:  Mr Solicitor, are you taking us to that

definition for the purposes of the jurisdictional

point or have we left that and are moving on to the

substance of the matter?

MR PAULING:  No, it is for the jurisdictional point only,

Your Honour.

BRENNAN J:  What is the proposition, that if, for example,

the jurisdiction of the court is invoked by a

parent seeking a declaration that it is a desirable

thing for the child that he go to school, that

there is a jurisdiction in the court invoked

validly?

MR PAULING:	Yes.
BRENNAN J:	And that the court has jurisdiction to determine whether it is a good thing for the child to go to
school?
MR PAULING:	As to whether such an order was enforceable,

Your Honour?

BRENNAN J: Well, this is what Justice Gaudron was asking,

as I understand it. What if the court says, "No,

it is not a good thing for the child to go to

school.", what happens then?

MR PAULING: Well, presumably, if the child then went to

school, under the Family Law Act there may be some

consequences in that the parents might not be seen

by the court to be acting in the best interests of

the welfare of the child, but nothing else would

flow from it.

TOOHEY J: Unless an injunction were granted.
MR PAULING:	Yes, and then that would have its obvious consequences if the - - -
TOOHEY J:	No, it may be one thing for the court simply not

to exercise its jurisdiction and it may be quite a
different thing for the court to give - this is not
a contradiction in terms, in effect, to give effect

to its non-exercise by granting an injunction. It

is one of the difficulties with this case, is it

not?

MR PAULING:  Yes.

TOOHEY J: That it really came before the court seeking some

sort of declaration as to the jurisdiction of the

Marion 6 30/4/91

court rather than an effective order from the

court?

MR PAULING:  Yes. It was the difficulty with it because the

four cases that preceded it were all cases where
the jurisdiction of the court had been invoked by

another who sought to prevent the procedure going

ahead and so injunctions were sought under

section 70C of the Act. But I suppose when one

looks at the policy issues, and there are policy issues here, there are solid grounds for marking out this sort of procedure as being in a class of

its own, although some judges suggest a class with

a few other things, abortion being one example.

But, really, the argument comes down to whether the

responsibilities involved in this are so grave that

the parents should be not seen as having authority

to go that far but, rather, that they need to

invoke or have invoked against them the

jurisdiction of the court to decide the issue.

TOOHEY J:  I just have some difficulty in this case with

knowing quite what the starting point is. Why does

one go to the court in the first place, presumably

because certain consequences that flow from an

operation of this sort which is conducted without

the consent of the patient.

MR PAULING:  Yes, that otherwise the conduct might, not only

of the parents but the medical practitioner may be unlawful. So that, I suppose, it is a question of degree that the more serious the intrusion in

respect of a child is, then the more necessary it

is to seek some sort of approval.

TOOHEY J: But a medical practitioner who carried out a

therapeutic hysterectomy, presumably, would do so

without any consequences attaching, that is any

adverse consequences attaching, so long as the operation was reasonable in the circumstances.

MR PAULING:  Yes. That then brings the question of how does

one define the dividing line between therapeutic

and non-therapeutic and on that, analysis of the

cases is less than satisfactory.

TOOHEY J: Yes. I only gave that, not so much to focus on

the distinction between the two but to search for

where the starting point of the inquiry is.	In one
sense, this case was not concerned with the

responsibility of a medical practitioner, is it,

not directly at any rate?

MR PAULING:  No, no it is not. I suppose the problem is

that to enter into a process of analysis which

involves trying to find the dividing line, what

would divide, for example, an opinion of the Full

Marion 7 30/4/91

Family Court that going to school was not for the

benefit of a particular child and a case such as

this involving a hysterectomy, that trying to put

the line anywhere is extremely elusive. But it is

a case where one can see that this is at the

extreme end, perhaps accompanied, as I say, by

notions of abortion or where the incompetent child

was the donor of a healthy organ, for example a

kidney, and consent could not be given by the child

because of incompetence. Whether or not the rights

as guardians or however one wants to categorize

them of the parents would go so far as to enable

them to give consent on behalf of the child.

Perhaps it is a bit like the sliding scale in

Briginshaw v Briginshaw, that when one wants to see

how strongly you need to be convinced before a fact

is found depends upon the seriousness of the

particular allegation. So, that for something like

removal of appendix or tonsils or something of that

sort, one can easily recognize that nobody's

consent but the parents is necessary.

But the way in which, for example, members of the House of Lords have seen this particular sort

of surgical procedure is really in a class of its

own, and if one were to abandon the search for a

dividing line but say that wherever the line is,

this sort of procedure has got to be on the side of

it demanding court approval, that is sort of one

way to grasp it. But I have attempted the analysis

myself, Your Honour, of trying to draw the line - some dividing line - and it is extremely elusive.

TOOHEY J: But does the case turn upon the competence of the

child to give her own consent, or the age of the

child, or what?

MR PAULING:  Yes, well, it turns upon the child being

incompetent to consent, whether by reason of age or

by reason of mental deficiency or brain damage or

whatever the situation might be where the child is

incompetent to consider the consequences of the

procedure; incompetent, as in this case, to

understand, for example, the relationship between

intercourse and pregnancy, the course of pregnancy,

childbirth, rearing, things of that matter.

When one looks to the particular facts of the case here and in so many of the - or at least in

the Australian cases, one sees that we are dealing

with individuals who are profoundly incapable of

informed consent.

GAUDRON J: But surely that area of incompetence goes to the

question of welfare, it does not go to the question

of consent. A child of 15 who was otherwise quite

intelligent and competent would not, presumably, be

Marion 30/4/91

able to consent to this operation and presumably,

also, it would be very doubtful that a normal 15-

year-old child's parents could consent to it. We

are talking about something quite different.

MR PAULING: Yes, if one focuses on whether or not, bearing

in mind all the circumstances including the mental

incompetence, such an operation might be for the

welfare of the particular individual, yes,

certainly, at that level of focus one is not

talking about the incapacity to consent although it

follows from the general incapacity. I mean, it is

a factor but it is not the factor.

TOOHEY J:  Mr Solicitor, what is meant by the proposition

that the parents of this child are not able to

consent to the carrying out of the operation that

is suggested? Does it mean that if the operation

is carried out without their consent certain

consequences follow for the medical practitioner

who carries it out, or certain consequences follow

for the parents? I am just having difficulty in

marrying the idea of the jurisdiction of the court

to authorize or consent to some form of surgery and

the notion that the parents can or cannot consent but I understand the proposition that the parents

can consent and that their consent is all that is

necessary to relieve the medical practitioner, or

anyone else for that matter, of any consequences by

reason of the operation but what is meant by saying

that they cannot consent?

MR PAULING: Really, what is sought to be done as a matter

of policy is to say, "This Court ought to lay down

a common law rule for this sort of procedure. It

is such a serious step that parents should be

deprived and the Family Court enlivened with

jurisdiction to determine whether it is for the

welfare of the child." I appreciate that it is an

unsatisfactory answer but in - - -

BRENNAN J: It is unsatisfactory because it does not say

what consent does.	What does consent do when given
by whoever?

MR PAULING: It, in relation to a medical procedure for

example, would relieve the medical practitioner of

any responsibility or criminal liability in respect

of his actions.

BRENNAN J: Which, civil or criminal, tort or crime, what is

the tort, what is the crime?

MR PAULING: First, that a hysterectomy, I suppose, in the

criminal sense - if one looked at it as an injury

in a criminal sense would amount to grievous harm.

Marion 9 30/4/91

BRENNAN J: Well, what are the provisions of your Code?

MR PAULING: Well, the Criminal Code, one would look to

sections 25 and 26, which I can hand up. There are

provisions in relation to abortion that are not

presently relevant. What we are looking at here

are the provisions of the Code in relation to

responsibility.

BRENNAN J: But what is the offence that is created by the

Code with respect, for example, to the infliction of grievous bodily harm?

MR PAULING: 

Your Honour, I do not have copies of the

provision in relation to assault although I will
arrange to have them copied. Firstly, can I refer

to a provision in the Code in section 149. That casts a duty on a person in charge of a child or

others and reads thus:

It is the duty of every person having charge

of a child under the age of 16 years or having

charge of any person who is unable to withdraw

himself from such charge by reason of age,

sickness, unsoundness of mind, detention or

other cause and who is unable to provide

himself with the necessaries of life -

(a) to provide the necessaries of life for

that child or other person; and

(b) to use reasonable care and take reasonable

precautions to avoid or prevent danger to the
life, safety or health of the child or other

person and to take all reasonable action to

rescue such child or other person from such

danger.

So, using that as a starting point, it may

well be argued that in respect of a child under 16

who was incapable of providing herself with the

necessities of life it may be otherwise than using

reasonable care or taking reasonable precautions to

avoid or prevent danger to in fact consent on

behalf of the child to invasive surgery of this

kind. That would be a starting point. The

ordinary provisions in relation to assaults I will

have copied and distributed to the Court.

The reason I handed up sections 25 and 26 was

to draw attention to the question of unlawful,

bearing in mind, 25:

An act, omission or event expressly declared

to be lawful is either authorized or justified

and an act, omission or event expressly

Marion 10 30/4/91

declared to be authorized or justified is

lawful.

Then section 26 deals with authorization:

An act, omission or event is authorized if it

is done, made or caused -

(a) in the exercise of a right granted or
recognized by law;

As the law presently stands, it is a right of parents of an incompetent child to consent on the child's behalf to an operation of this sort, in which event that right being recognized by law, the actual operation would be authorized, and being authorized it would not be unlawful.

The sections in relation to assault -

"assault" is defined in section 187 of the Criminal

Code. It means:

the direct or indirect application of force to
a person without his consent or with his

consent if the consent is obtained by force or

by means of menaces -

that is not relevant here, and -

the attempted or threatened application of

such force.

"Common assault" is in section 188, and included in

it are various aggravating factors which can

increase the penalty.

TOOHEY J: Are there no provisions relating directly to

medical treatment?

MR PAULING:  Your Honour, in the matter I handed up, you

will see in section 26(3): 

A person cannot authorize or permit another to

kill him or, except in the case of medical

treatment, to cause him grievous harm.

TOOHEY J:  I was thinking more of the provisions that exist

in Codes, other Codes which, if I recall them

correctly, exempt from criminal responsibility

where something is done by a medical practitioner

reasonably.

BRENNEN J: Section 282 of the Queensland Code:

A person is not criminally responsible for

performing in good faith and with reasonable

Marion 11

care and skill a surgical operation upon any

person for his benefit.

MR PAULING:  Your Honour, I cannot answer the question

immediately, but I will have my junior look at it

straight away.

Can I return, Your Honours, to the provisions of the Family Law Act. I draw attention to

section 4 to the definition of "territories'', which

says:  The territories to which the Act extends

are: the Australian Capital Territory, the

Northern Territory, and Norfolk Island.

I raise that because in many Federal statutes

the Northern Territory is defined as being included

in the States, or a State includes the Northern

Territory. In this Act there are quite specific

provisions going to the territories and they apply

in the Northern Territory.

The part of the Act that deals with children

is Part VII commencing with section 60. I refer to firstly, and I will do this in chronological order,

60D which we will come back to later, but:

In proceedings under this Part in relation to

a child, the court shall regard the welfare of

the child as the paramount consideration.

And if indeed the court were moved to declare that

court approval was necessary before a hysterectomy could be carried out on an incompetent child, then we would say that the Act has its own standard, if

one likes, and it would be unnecessary in the

circumstances to lay down guidelines, or indeed to

suggest what tests ought to be applied other than

to say it can only be carried out if the court is

satisfied that it satisfies the welfare of the

child.

Section 60E(3) specifically applies. It says:

This Part applies in and in relation to the

Territories.

Then one goes to section 60H. The scheme of the

Act following the 1983 amendments was that it was

not to be in collision with child welfare laws as

they were generically known, or welfare laws,

whereby children were subject to control of a State

authority, for example, and section 60H provided

that:

A court having jurisdiction under this Act

shall not make an order under this Act in

relation to a child who is in the custody of,

Marion 12 30/4/91

or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into

effect when the child ceases to be in such

custody or under such guardianship, care and

control or supervision, as the case may be.

And in order to find what Acts are scheduled as

child welfare laws, one then has to go to the Fifth

Schedule to the Family Court Rules and they are

there listed as prescribed laws for purposes of

definition of child welfare law in section 60 of

the Act and it there lists Acts in every

jurisdiction and in the Northern Territory the

Adoption of Children Act, the Community Welfare

Act, the Maintenance Act and the Mental Health Act.

Now, could I just pause at this stage to say

that in every jurisdiction there is in respect of

adults, however defined in the particular

jurisdiction, guardianship provisions specifically

relating to operations that have the affect of
rendering the person permanently infertile and we

have prepared a schedule setting out the particular

bits of legislation and their operative provisions,

which we will come back to, and we have included in

there New Zealand. So if I could hand a table of

the legislation, rather than tendering bits and

pieces of Acts, that faithfully mirrors the

provisions. Two of the Acts that we have

extracted: that of New South Wales, which is

called the Children Care and Protection Act 1987

and in South Australia the Mental Health Act 1976 -

those two Acts deal with children and deals

specifically with "hysterectomy" and I suppose

really, in answer to Your Honour Justice Toohey's

earlier proposition, "hysterectomy" is singled out

because all over Australia it has been singled out

for legislative attention, at least in relation to

One of the Law Lords described it, among other	adults, and in two places in relation to children.	things, as having an emotional content that stood
it apart, but what we have scheduled to the Family
Law Act are these Acts which continue to operate.
In the Northern Territory there is no statutory
formula in relation to children, although there is
the provision in relation to adults.

So that at least so far as the

Northern Territory is concerned, when one looks to

see whether there are any child welfare laws that

control this situation, the answer is, there are

not, and the question as to whether or not parents can consent to the procedure is to be found in the

common law and not in any statute.

Marion 13 30/4/91

Then if I could take Your Honours to

section 63(1). This is a jurisdictional point only

that:

Jurisdiction is conferred on the Family Court

and, subject to subsection (7), the Supreme

Court of the Northern Territory, -

And then subsection (7) provides that:

Jurisdiction in relation to a matter arising

under this Part in relation to which a
proceeding is instituted under this Part is

not conferred on a court of a Territory unless at least one of the parties to the proceedings is, on the day of the institution of the

proceedings or the day of the transfer of the

proceedings to that court, ordinarily resident

in the Territory.

And in this case there is no doubt that the parents

and child were ordinarily resident in the Northern

Territory.

Then we proceed to section 63A which may fuel

an argument as to whether the power of the

Family Court which can also be exercised in the

Northern Territory by the supreme court might be

exclusive. That section provides:

Proceedings that may be instituted under this

Part shall not, after the commencement of this

section, be instituted otherwise than under

this Part.

Now, as far as the appellant's arguments are concerned, we do not seek to argue whether in

New South Wales, for example, by exercising power

under the Family Law Act the Family Court would

purport to authorize that which in New South Wales

would be unlawful.

You will see from the schedule, in relation to

New South Wales, page 4, the test there applied

firstly is to say that a "medical practitioner may

carry out medical treatment on a child without
consent if necessary as a matter of urgency to save

the child's life or prevent serious damage to the

child's health". And then it goes on in

section 20B(2) to talk of the consent of the

supreme court. On the right-hand column, it says

at 20B(2A) "consent of Supreme Court not be given

for child under 16 years unless satisfied necessary

to save child's life or prevent serious damage to

health".

Marion 14 30/4/91

Now, the situation one can imagine may arise

where, if the standards, for example, in Re Grady

were the standards applied, that permission would
be given for a hysterectomy in circumstances that

would not answer the requirements of section 20 of

the New South Wales Act. So you may have then a

collision between something authorized by the

Family Court but prohibited by New South Wales

legislation. That is not the situation as far as

the Northern Territory is concerned and, if I may,

I will leave that argument if it arises to others.

The next section to be referred to briefly is

section 64 and 64 was amended in 1983 following on

the Watson Report, and the opening words are those

which found favour with all three judges in

Re Marion as conferring on the Family Court

jurisdiction in respect of welfare:

In proceedings in relation to the custody, guardianship or welfare of, or access to, a

child -

and then it sets out various placitum. It is our

submission that at least as far as the

Northern Territory is concerned this section

plainly confers jurisdiction and if anything of a

constitutional nature were needed in aid of it

conferring that welfare jurisdiction, section 122

really supplies the additional power.

TOOHEY J: Well, I must say I have difficulty with that

proposition, Mr Solicitor. I would have thought,

on a quick reading of section 64, that it assumes

the jurisdiction otherwise exists and directs the

court as to what it shall do and, in the case of

paragraph (c), may do in those circumstances.

Could you just explain how section 64 itself is the

jurisdiction conferring section?

MR PAULING: Yes, there are two - I mean it has got to be

read as part of the whole of Part VII, but it has

got to be read with section 63(1) which confers

jurisdiction on the supreme court as well as on the

Family Court and the argument runs, Your Honour,

that - perhaps if I can take you to what was said

by Chief Justice Nicholson explaining the

proposition. Can I take Your Honours to 64(l)(c):

subject to section 60D and paragraphs (b),

(ba) and (bb), the court may make such order
in respect of those matters as it considers

proper, including an order until further

order. ·

Now, Your Honours, we would say that that section

coupled with the opening words of section 64(1),

Marion 15 30/4/91

confers jurisdiction on the court to make any

order:

in relation to the custody, guardianship or

welfare of, or access to, a child.

TOOHEY J: It certainly confers powers, I would not have

thought it conferred jurisdiction.

MR PAULING:  In defining jurisdiction one goes back to 63(1) where Part VII - - -

TOOHEY J: That may well be, all I am querying is whether

jurisdiction does not have to be found outside

section 64 and then section 64 gives the court

certain directions and gives the court powers in

regard to those matters in respect of which

jurisdiction exists.

MR PAULING:  The judicial pronouncement is in favour of

those two sections coupled together being a power- conferring section, Your Honour, would include - I mean each of the three judges, of course, in

Marion - would include the statements to be found in Re Jane and in Re Elizabeth which are on our

list of authorities and also Public Guardian v MA,
which I omitted from the list of authorities but

have copied for the use of Your Honours and I will later be referring to it but perhaps I can hand it up now.

Perhaps I could take you to the judgment in Re

Marion. I do not know whether Your Honours have

the 14 Family Law Reports.

MASON CJ: Yes, we have that.

MR PAULING: Thank you, Your Honour. Firstly, if I could

take Your Honours to page 431 where

Chief Justice Nicholson there is dealing with the

argument then advanced by Mr Rose on behalf of the

Commonwealth, and this is about eight lines from

the bottom:

Mr Rose argued that there is no

independent head of jurisdiction contained in

the Family Law Act which would encompass the

application made in this case. In order to

consider this argument it is necessary to

examine the relevant parts of section 63E, 63F

and 64.

So, if I can take Your Honours to those sections.

Well, they are really conveniently set out in

Chief Justice Nicholson's judgment:

Marion 16 30/4/91

"A person who is the guardian of a child

under this Act has responsibility for the long

term welfare of the child and has, in relation

to the child, all the powers, rights and

duties that are, apart from this Act, vested

by law or custom in the guardian of a child,

other than:

(a) the right to have the daily care and

control of the child; and

(b) the right and responsibility to make

decisions concerning the daily care and

control of the child."

Section 63E(2) sets out the rights of a

person granted a custody order and

section 63E(3) is as follows:

"(3) The operation of subsection (1) or (2) in

relation to a child may be varied by an order

made in relation to the child by a court

exercising jurisdiction under this Part."

And then section 63F is set out and then:

Mr Rose said that the source of the

court's jurisdiction to make orders in

relation to guardianship, custody and access

lay in these sections, none of which relates

to welfare as a separate heads of

jurisdiction.

And then His Honour goes on to set out further the

argument and then four lines up:

The word "welfare" was first introduced

into the section by Act No 72 of 1983. At

that time proceedings were required to come

within the definition of a matrimonial cause

contained in section 4(1) of the Act, and

proceedings such as this would have fallen

within the definition by reason of parts (ce),

(cg) and (ch) -

which His Honour there sets out, and:

These provisions were repealed by Act No 181

of 1987.

Mr R0se accordingly argued that

thereafter there was no basis for independent

proceedings for the welfare of a child to be

found in the Act and that such orders could

only be made as an adjunct to proceedings for
custody, guardianship or access, or in

proceedings instituted under section 66ZD(4).

Marion 17 30/4/91

And then, His Honour then goes on to deal with a

second reading speech and this is a case,

Your Honour, where resort to extrinsic materials

would be well justified when one finds that the

source of the power may be inferential rather than

plain and obvious. But from the Hansard the

Attorney-General is recorded as having said:

"The third way in which the Bill will

expand the Act's jurisdiction concerning

children is to permit proceedings concerning

the welfare of a child.

"These amendments reflect the

government's decision to implement the Watson

Committee recommendation that the Family Law

Act be amended to enable orders to be made for
the protection of the welfare of a child of a
marriage, thereby investing courts exercising
jurisdiction under the Act with a power

similar to the wardship power of the state

Supreme Courts. The Joint Select Committee

favoured the conferral of a wardship

jurisdiction on courts exercising jurisdiction

under the Act. The Watson Committee, however,

concluded that while the substance of the

jurisdiction was highly desirable, the

terminology or concept of wardship, which the committee described as 'archaic', ought to be

abolished.

And then he reads on:

"In accordance with the Watson

Committee's view, the Bill does not use the

language of wardship but instead provides that

proceedings concerning the welfare of a child

of a marriage that involve at least one of the

parties to the marriage are a matter, indeed

an exclusive matter, for the Family Court.

Although the relevant amendments in the Bill

will prevent the state Supreme Courts from

exercising ward of court powers in proceedings

concerning a child of a marriage and involving

a party to the marriage, I would stress that

the Commonwealth does not propose to intrude

into the area that is commonly termed state

child welfare law. The relevant provisions of

the Bill make this clear. At the same time,
the Bill contains a provision to enable a
court exercising jurisdiction under the Act to

invite the intervention of state or territory

child welfare officers in proceedings

affecting the welfare of a child."

Marion 18 30/4/91

And then he goes on to refer to the judgment of

Chief Justice Asche in the Northern Territory

Supreme Court in Public Guardian v MA:

it the wardship jurisdiction possessed by the various state and territory Supreme Courts.

the purpose of the Bill was simply to increase

the scope and effectiveness of orders of the

So that there is one source of confirmation that

what was intended to be conferred on the Family

Court by the amendments in 1983 was, at least, the

substance of wardship couched in language of the

welfare of the child.

TOOHEY J: That means, does it, that the Family Court has

jurisdiction to entertain any application that

relates to the welfare of the child though it may

have no connection with a dispute as to custody,

guardianship or access?

MR PAULING:	Yes, Your Honour, if ,he circumstances call for the intervention of the court.
TOOHEY J: Yes, I am not suggesting that that is not so.	I

am just trying to understand the breadth of the

court's jurisdiction. So long as the matter

addressed to the court can fairly be described as

relating to the welfare of the child that, you

would say, is enough to attract the jurisdiction of

the court?

MR PAULING:  Yes. And what followed on from this exercise,

of course, was that there was a referral of powers

by a number of the States. I might take some

caution in putting that proposition because what

was in fact referred was the custody, guardianship

and maintenance of children and not welfare.	So
that the exercise to achieve further what was

proposed by the Watson Committee was carried

through with referral of powers and, of course, in
addition to that now we have the scheme of cross-
vesting which rather shows that the parens patriae

jurisdiction that the supreme court had one can see

that with cross-vesting one way or the other that

both State supreme courts and the Family Court
would be invested with jurisdiction to make orders

with respect to welfare.

I suppose, the touchstone is to ask in any

particular case whether the child is in need of the

protection of the court, much as - - -

TOOHEY J: For instance, could a parent apply under the

provisions of the Family Law Act for an order

Marion 19 30/4/91

restraining a child from leaving home on the

grounds that it would be contrary to the welfare of

the child for that child to leave home?

MR PAULING: Well, theoretically, Your Honour, yes, under

70C of the Family Law Act which I will just read,

Your Honour:

Where proceedings are instituted in a court

having jurisdiction under this Part for an

injunction in relation to a child, the court

may make such order or grant such injunction

as it considers appropriate for the welfare of

the child, including:

(a) an injunction for the personal protection

of the child;

(c) an injunction restraining a person from

entering or remaining -

that probably would not apply directly to the child

but for the personal protection of the child it may

be that the court would grant an injunction

refusing the child permission to leave home, yes,

the jurisdiction is there. And that is how, in

respect of the first four matters that came before

the Family Court posing this problem about whether

court consent is necessary or not, that is where
injunctions were sought for the personal protection

of the child. Then this case arose in the Northern

Territory on a completely different basis and -

GAUDRON J: But that is part of the problem, is it not,

Mr Solicitor? One can understand in the other four

cases that there was at least a controversy and as

best I recollect it parens patriae jurisdiction was

exercised on the basis that there was some

controversy albeit not necessarily between the

parents but between somebody, perhaps, and the	parents. The problem in this case is that the only
controversy seems to be on your part as to what the law is.

MR PAULING:	The question of whether or not in this particular case an order ought to be made or not,
that is, the Court's jurisdiction having been
invoked, may well not be itself controversial. But
the controversy sought to be put up is that it is
in fact necessary or, in terms of common law, that
a court order be obtained and not a situation where parents can consent. Perhaps if I refer to -

GAUDRON J: But you are assuming a very considerable amount

in that. Let us make the assumption that parents

cannot consent. That in itself is a large

assumption but let us make that assumption. That

Marion 20 30/4/91

still does not get us to the point that somebody

else can consent, least of all that a court can

consent.

MR PAULING:  No, but the situation as it now is that there

is an authoritative statement of what the law is

that is that the majority have .decided that parents

can consent to this procedure without any court

approval. Perhaps if I refer to O'Toole v Charles

David which has had a fair going over today.	Can I
adopt, with respect, what fell from His Honour

Justice Brennan in that case concerning the effect

of such an authoritative statement? I am sorry,

Your Honours, I have been given an unmarked copy.

It is that part of Your Honour's judgment where

Your Honour was dealing with the fact that nobody

suggested that the judges declared the law. It is

in the ALJR at page 631, that is, just after C:

Nowadays nobody accepts that judges

simply declare the law; everybody knows

that, within their area of competence and

subject to the legislature, judges make law.

Within the proper limits, judges seek to make

the law an effective instrument of doing

justice according to contemporary standards in

contemporary conditions. And so the law is
changed by judicial decision, especially by

decision of the higher appellate courts.

Thereafter, the law is taken to be and to have

been in accordance with the principle which

informs the new decision: the ratio

decidendi. The ratio, which is expressed in

or necessarily implied by reasons for judgment

to which a majority of the participating

judges assent, is the law. It is not merely a

judicial opinion as to what the law is; it is

a source of law.

And Your Honour there referred to Salmond on
Jurisprudence.	The point of raising that is that

at the moment there is a controversial proposition

that is whether or not parents can lawfully consent

on behalf of their incompetent children for a

procedure of this sort. And, authoritatively, two

judges of the Family Court have said that that

court consent is not necessary.

GAUDRON J: It is only authoritatively if its jurisdiction

has been invoked and its jurisdiction has been

invoked only if there is a matter. Now, the

question is can you have a matter in which there

really is no controversy between the parties?

MR PAULING: Well, I should have thought, with respect, that

the controversy was that the appellant says that as

a matter of law consent is required, whereas the

Marion 21 30/4/91

parents say and seek to advance the argument that

that consent is not necessary.

I suppose if one took the situation that this

Court took the view that court approval was not

necessary, it may be that the parents could then

say, "Well, we are not interested in any longer

invoking the jurisdiction of the Family Court.	In
fact we will just go away and consent to the
procedure because here we have got a judgment of
two judges saying that we can lawfully do it. It
might be prudent to get approval but it is not necessary".

The problem then would arise as to how one

seeks to resolve the issue. I suppose the next

time a matter came before a single judge, if

somebody invoked the jurisdiction he would say,
well you do not need to be here, but since you are
here we will see what we can do, but then one
leaves the situation of parents who say, well, we

do not need to get court approval, we will just go

ahead with the operation. I can see Your

HonourJustice Gaudron's difficulty as to where the

real tension is.

GAUDRON J: Well, I can see that there is a controversy as

to what the law is, but I do not see that that is a

matter in respect of which the Family Court has

been given jurisdiction and it is quite different
to say there is a controversy as to what the law is

and to say there is a controversy as to what is in

the best interests of a child.

MR PAULING:  Yes, I see. Can I come back to that,

Your Honour?	I would like to reflect on that
problem.

GAUDRON J: Yes.

MR PAULING:  As I understand Your Honour, the situation you

raise is that really what is in dispute between the

appellant and the respondent is not whether the

particular procedure would be for the ultimate
benefit of the child - that would be debated at

another time and another place. Yes, I will come

back to that, if I may, and reflect on it.

So, Your Honours, I have taken you to the relevant parts of the Family Law Act with a view to

showing, in a way, how the scheme under Part VII

works. I will just refer, if I may, to how the

case got here, which is 94A, which is the case

stated procedure, the very same section as

considered by the Court in Fisher v Fisher, and

then 95(b), which talks of Appeals to High Court:

Marion 22 30/4/91

Notwithstanding anything contained in any

other Act, an appeal does not lie to the High

Court from a decree of a court exercising

jurisdiction under this Act, whether original

or appellate, except -

(b) upon a certificate of a Full Court of the

Family Court that an important question

of law or of public interest is involved.

So that those are the provisions of the Act. Can I

say this that it will be necessary, presuming the

matter does not go off on some preliminary point,
to study the judgments of the four single judges in
the cases that led up to Marion, the three

judgments in Marion and no doubt the analyses that have gone on of the various lines of authority and

Your Honours, unless the Court would want me to, I

was not proposing to simply go through and

demonstrate how the case law has developed. There

are some observations I would make briefly, but

what I was proposing to do was to draw Your Honours

attention to and we have done it in the written

submissions, judicial expressions favouring the

view that court approval is necessary, and I have

set those out.

TOOHEY J:  Mr Solicitor, just before you leave section 95,

it is unusual, in so far as it provides for the

granting of the certificate, and it may be that

that has been done to meet the situation where

there are no parties anxious to have a matter

tested, but the court itself may be seeking to have

an answer on what the paragraph described as an

important question of law or public interest, is

there anything in the debates about section 95 or

the second reading speech that throws any light

upon the presence of paragraph (b)?

MR PAULING:  I do not know the answer to that, but I will

find out the answer Your Honour and come back to

it.

MASON CJ:  Mr Pauling, there is no need for you to take us

to all these cases.

MR PAULING:  Could I just make some general observations

about how the case law developed. It is curious

that in Australia the four cases that led up to

Marion, and Marion itself, have all occurred in the

last two years or so; that they ended up with such radically different views expressed by the various

judges and whilst no doubt referring the questions

to a Full Court was seen as an attempt to resolve

it, we are now left, as I have demonstrated, with a

very difficult ratio decidendi to extract from the

case, bearing in mind the different approaches.

Marion 23 30/4/91

In the United States and in Canada the cases

there, Re Grady and Re Eve, have to be looked at in
the context that what was being discussed, at least

in part, was the idea of eugenic sterilization.

Indeed, when one looks at the facts of each of

those cases you were dealing with an adult

incompetent woman and the proposal was that a

hysterectomy or similar operation be carried out

purely for the purposes of contraception. So that

looking at the approach of the Canadian Supreme

Court and of the Supreme Court of New Jersey, in respect of those cases, it is important to bear

that in mind.

In England, the cases that led up to it again

were cases of sterilization. The curiosity with

that in relation to the Australian cases is that it

has been approached from more or less a therapeutic

approach that whilst sterilization may be an end

result, the fact is that the motivation to carry

out the procedure was to try and improve in some

way the child's life by removing problems of
menstruation, and indeed, in the present case as
the evidence appears to be at the moment, to remove

a source of torment because of hormonal fluxes

during ovulation. The facts that occur in relation

to this trial one can see, assuming those facts to

be right, that it is clearly a case where such a

procedure would be indicated, and without any

thought about the fact that sterilization is the

result of it. But as I say, the English

authorities and the American and Canadian

authorities need to be looked at from that point of

view. The starting point for the Australian cases

is really one of offering a procedure to a child

which could cause a significant improvement in her

life.

DAWSON J:	Mr Solicitor, I am not sure what we are looking for in the cases or cases are looking for for that
matter. Are we looking for a lack of power on the part of the parents to consent, the existence of a
power on the part of the court to consent, and if
we are looking for the existence of a power, does
that only exist when wardships proceedings are
taken and the courts acts at parens patriae towards the child? What sort of jurisdiction is it that
the court is supposed to exercise?  When is it
invoked, and so on?  We are in a sea of all sorts
of ideas floating around.

MR PAULING: Well, perhaps I can answer that firstly by

saying that, in our submission, the power is there

in the Family Court to make such an order.

DAWSON J:	Why do you say that? The power of the Family Court is to act in the best interests of the child
Marion	30/4/91

in proceedings.	Now, what sort of a proceeding is
this?

MR PAULING: Well, the present proceedings, Your Honour, or

the proceedings from which this appeal comes, are

proceedings to have the court give a third opinion,

if you like, that the particular - - -

DAWSON J: Well, where is the power in the Act of the court

to give a third opinion?

MR PAULING:  We say that it comes from the breadth of power

to make any order it could in respect of the

welfare of the child.

DAWSON J: But it does not say that. I can understand if

you go to the supreme court and say, "This child is in need of care and attention. It needs to be made a ward of the court because there is no one else

who will look after it properly." When the court

makes an order, then the court takes over. That is

the jurisdiction I understand, but there is nothing

like that in the Family Court Act.

MR PAULING:  What we argue, Your Honour, is that by

conferring a broad power in respect of

welfare - - -

DAWSON J:	But it does not confer a power in respect of welfare. It says, "When you do have power you will
act in the best interests of the child".

MR PAULING: Well, that is the guiding principle,

Your Honour, but the conferral, we say -

DAWSON J: 

The guiding principle in proceedings which are

properly before the Family Court. But you have to
get the proceedings there first.

MR PAULING: Ordinarily, Your Honour, one would expect that

proceedings would be invoked perhaps because if

this Court made an authoritative statement that it

ought not to be - - -

DAWSON J:  You cannot go to the Family Court and say,

"Should I make this child do homework? Could you

tell me what I do about this child's pocket money",

and so on, just because you feel in need of advice

or reassurance, or protection against civil

proceedings of some sort.

MR PAULING:  No, but there are reasons why a procedure as

far reaching as this falls into a category of its

own.

Marion 25 30/4/91

DAWSON J: There may be all sorts of reasons, but you have

got to find the procedure somewhere in the Family

Law Act. It is a statutory court.

MR PAULING:  Yes, and we say that the parents or, indeed,

anyone else having an interest in the welfare of

the child could bring proceedings for, if you like,

declaratory relief that such a procedure would be

in the best interests of the child.

DAWSON J:  But where do you find that?

MR PAULING: Well, in section 64(l)(c) to start with. If

one looks at section 64(l)(bb)(vi) requiring the

court to take into in respect of welfare:

any other fact or circumstance (including the

education and upbringing of the child) that,

in the opinion of the court, the welfare of

the child requires to be taken into account -

DAWSON J: These are only:

in proceedings in relation to the custody,

guardianship or welfare of, or access to, a

child -

MR PAULING:  Yes, Your Honour.

DAWSON J: Well?

MR PAULING:	It is our submission that the jurisdiction of the Family Court can be invoked under
section 64(l)(c) and an order sought that a
particular procedure would be declared to be in the
best interests of the child.
TOOHEY J:	You may be right in that answer but if you are I

do not think it is because of section 64 taken on

its own. Because if section 63 is the jurisdiction

conferring section and that invests or confers	jurisdiction on courts and, in particular, the
Family Court "in relation to matters arising under
this Part", so, is not the first step to find whether a matter answers the description of a "matter arising under this Part"? If it does, then
it would seem to follow that jurisdiction exists.
If it does not answer that description, then it
would equally seem to follow that there was no
jurisdiction.

So that the question - and it may not be an

easy one to answer - is, what is the matter arising

under this Part, especially where it is divorced

from custody, guardianship or access proceedings.

It may be that, on one view, any application that

relates to the welfare of the child is a matter

Marion 26 30/4/91

arising under Part VII of the Act but that is
taking a pretty broad view of the operation of

Part VII.

MR PAULING: Well, it is certainly the view taken by all

three of the judges in the decision under appeal

and was certainly the case in at least two of the

pre-existing matters and in the judgment of

Chief Justice Asche.

DAWSON J: Before we go to those judgments, it would be much

more helpful if we could identify just exactly

where it is in the Act that we found what we are

seeking to find.

MR PAULING:  What we are seeking to do in reality,

Your Honour, is to say that, firstly, a

Family Court would have jurisdiction whether

proceedings were brought on behalf of the child by

the parents or some guardian or somebody having an

interest in the welfare of the child. The court

would have jurisdiction to say whether or not - - -

DAWSON J:  Can we not confine it? We have here parents and

guardians of this child who are perfectly capable

of giving consent if they are so minded.

MR PAULING:	Yes.
DAWSON J:	What are we looking for, an application on the

part of those parents, those guardians for the

court to sanction what they could do themselves

anyway?

MR PAULING: Well, if the common law is that they have the

capacity to consent, yes, then to do -

DAWSON J:  Is it that or is it to order them to do it in the circumstances, or what? What is the application?

MR PAULING:	The application, Your Honour, is to prevent parents from consenting to such a surgical
procedure in respect of an incompetent child
without the approval of the court.
DAWSON J:	No one is seeking to prevent them doing anything.

They are the ones who are making the application.

MR PAULING:  I suppose that is why it would have been

preferable if one of the cases that was brought by

way of injunction proceedings had found its way to

this Court.

DAWSON J: Well, that may be but we are looking at this

case.	So what is the application that is being
made?

Marion 27 30/4/91

MR PAULING:  The application, if made by the parents or

guardians of the child, would be to relieve them

from the consequences of carrying out the operation by reason of the fact that the authorization of the court would, as I say, avoid those consequences.

It would render lawful that which otherwise would be unlawful.

DAWSON J:  Now, you have got to find somewhere in the Act

that says such an application can be made.

MR PAULING: Well, where we look, Your Honour, is the

jurisdiction conferring provision of section 63(1)

and we say that - - -

DAWSON J:	But that does not confer jurisdiction or likely that it does not anyway. That was what was being -
I am sorry, section 63(1), yes.
MR PAULING:	Yes, that confers jurisdiction on the Family Court and the Supreme Court of the Northern
Territory in respect of - - -
DAWSON J:	And that carries you to that part and you have got to find jurisdiction in that part somewhere.
MR PAULING:	Yes and where I am driven in that part is to section 64 and what we say has been achieved by the
addition of welfare -
DAWSON J:	But section 64 then presupposes that there are

proceedings in relation under this part and then

says what happens in those proceedings, the court shall employ these principles. It still does not

get you far enough.

MR PAULING: But, with respect, Your Honour, what we are

saying is that it provides ~or proceedings in

respect of welfare on its own.

DAWSON J: That is what it does not do. It does not provide

for the initiation of proceedings. It does not

define the type of proceedings which can be

initiated. It merely says, "When you have

proceedings you employ those principles.".

MR PAULING: With respect, Your Honour, that seems to be the

opposite of the view taken by Their Honours in the

Full Court of the Family Court.

DAWSON J: Well, if they are right in that then you will be

able to point to that part of the part which
defines the proceedings of this sort which can be

brought.

MR PAULING: That is where we go to 64(l)(c), Your Honour.

Marion	30/4/91
McHUGH J:	Mr Solicitor, what I am having trouble

understanding is how you are a party to the

proceedings? You are the respondent; what right

was sought against you? How did you become a party

to the proceedings in the first place?

MR PAULING:  The Secretary of the Department was chosen as,

as it were, an appropriate person to represent the

child. So, really, we are here - - -

McHUGH J:  On what basis was that?

MR PAULING: Well, I think on a purely pragmatic basis that

the Secretary of the Department had available to

him resources and other matters that would, I

suppose, mean that the rightness of the procedure

could be checked through or that the Secretary

would be aware if the matter was to proceed to

operation. I suppose the problem arises because

the parents were looking for somebody to name so

that could institute proceedings.

McHUGH J:	Why did they not select you or me or anybody?
MR PAULING:	I suppose because Your Honour and I do not have

a direct interest in the matter but the Secretary

of the Department may well do.

TOOHEY J:  When you say "may well do", it may be stronger

than that, may it not? I mean, what is the role of

the Department of Health and Community Services?

Does its mandate extend to caring for the welfare

of children?

MR PAULING:	In relation to the welfare laws that are administered in the Northern Territory, yes, it has
a direct role to play.
TOOHEY J:	I mean, say, for instance, the Secretary of the

Department had said to the parents, "We've looked

at this matter and we don't think that this child	should have this operation because we don't think
it's necessary.", and the parents said, "Well, we think it is necessary and we propose to go ahead.",
well, it would not be hard to construct either an
injunction application on the part of the parents
to restrain the Secretary from taking any action to
interfere with the operation or on the part of the
Secretary an application to restrain the parents from going ahead allowing the operation to take
place. Now, this falls a bit short of that but it
has been done by way of declaration.

MR PAULING: Yes, in the same way. Therefore, it is a

question

Marion 29 30/4/91

TOOHEY J:  Now, I am not suggesting that gets you out of all

your difficulties but it perhaps puts it in a more

realistic context.

MR PAULING:	Yes, the difficulties in sort of - - -
TOOHEY J:	The difficulty as I see it, Mr Solicitor, is that

you really need to find in that word "welfare", in

section 64, some equality that enables one to say

that a matter relating to the welfare of the child

is a matter arising under Part VII and therefore

the jurisdiction of the Family Court is attracted.

MR PAULING:  I have sought to rely on the extrinsic material

to which I have already referred, on the basis that

it was the intention of the legislature that that

be achieved.

TOOHEY J: Well, that may well be.

DEANE J:  May you not get a little bit further by focusing

on declaration 2 on page 5 of the book, that is,

that as one level what is involved here is an

allegation by the parents that they can authorize

this operation which the Northern Territory

Government is disputing.

MR PAULING:  It is on page 5 of the appeal book,

Your Honour.

DEANE J: Yes, declaration 2. As I follow what you have

said, involved in this is an assertion by the

parents that they have authority, or that they are

competent to authorize this procedure without

consent of the court, and the Northern Territory

Government denies that they have that power or

authority?

MR PAULING:	Yes, and has an interest to ensure that such procedures are not carried out without court
approval.

DEANE J: Is that not what we are first concerned with?

Before you come to whether it is for the welfare or

not, there is this dispute between the parents and

the Northern Territory as to whether they have

authority without the consent of the court.	The
order on page 5 seems to be a little bit the

reverse of what one would have thought was legally

a logical order.

McHUGH J: Could I just follow up by asking this: but how

does that dispute get in the Family Law Court as

opposed to the Supreme Court of the Northern

Territory?

Marion	30	30/4/91
MR PAULING:	That dispute could be there as part of cross-vested jurisdiction.	I mean, it could have

been either court because both courts can exercise

power under the Family Law Act - - -

McHUGH J: But question 1 itself speaks about "a court", it

does not speak about the Family Law Court.

MR PAULING:  No, that is why the Chief Justice of the

Family Court when he fashioned his questions asked

the question - the original questions of law were

changed to find out whether the Family Court

of Australia had that jurisdiction.

TOOHEY J: But you still have to find your matter arising

under Part VII otherwise you may simply be left

with the proposition that there is jurisdiction

somewhere but not in the Family Court.

MR PAULING:  Could I refer the Court to section 3l(l)(d).

It reads:

Jurisdiction is conferred on the Family Court

with respect to:

(d) matters (other than matters referred to in any of the preceding paragraphs) with

respect to which proceedings may be

instituted in the Family Court under this

Act or any other Act.

And if then one goes to section 63C(l), it is

provided that:

Proceedings under this Act in relation to a

child may be instituted by:

(a) either or both of the parents;

(b) the child; or
(c)	any other person who has an interest in

the welfare of the child.

Now if one adds those to my earlier comments in

respect of section 63(1) which confers jurisdiction

and section 64(1) which, as it were, sets out the

scope of what can be done in respect of welfare,

that, in our submission, gives rise to a matter

arising under Part VII.

DEANE J: But if the question is whether the parents have

power to consent or whether the effect of this Act

is to deprive them of that power, would that not be

a question arising under section 3l(l)(a), that is

whether they have to comply with a consent

Marion 31 30/4/91

application under this Act or whether they can do

it without any such consent?

MR PAULING: Yes, it would, Your Honour. It would confer

jurisdiction on the Family Court to answer a

question brought to it by, for example, parents of

a child as to whether or not, at least under the

Act, the consent of a court were required, but then, I suppose the problem with that is that the

examination of the Court would be put upon is one

of statutory interpretation to see whether the Act
itself contains some limitation, whereas we are
forced to say in this case that one has to, first

of all, look to the content of the common law and

see whether there is some common law principle

which controls the situation and requires consent

and then whether the consequence of that is that
parents would be compelled to approach the

Family Court or a court exercising jurisdiction

under this Act, so that for the welfare of the

child some order is made authorizing the procedure.

DEANE J: But as you put your argument, as I followed it, it

is that the effect of the Family Law Act is that

the consent of the Family Court is essential before
a valid operation or before an operation of this

kind can lawfully be carried out.

MR PAULING:  Got to in this way, Your Honour, that -

DEANE J: It does not matter how it has got to - - -

MR PAULING:	Yes.
DEANE J: - - - because	the consent of the Family Law Court

is essential.	It can only be by reason of the
effect of the	Act which gives it all its
jurisdiction.

MR PAULING: Well, yes, because what we are saying is that

the court, by reason of the 1983 amendments is

exercising, in effect, parens patriae jurisdiction

and the substance of wardship; not using the

archaic language of wardship. But we then say,

ttLook, there are a category of things, a

hysterectomy of this sort or abortion or a donation
of healthy organ in a transplant, that are so
important that parents could not act in the best
interests of the welfare of the child otherwise
than by getting court approval before proceeding
with the surgery.

It is in that way that the matter builds and one finds that the principles in relation to

welfare are found in the Act.	So that that is the
sort of real starting point.

Marion 32 30/4/91

McHUGH J: But could I just take these steps: you have to

say that there is no common law right in parents to

consent to this particular operation?

MR PAULING:	Yes.
McHUGH J:	And you can only say that, it seems to me, for one of two reason: either the common law itself
has developed to that extent or the Family Law Act
on its proper construction has cut down the common law in some way or, in effect, changes the common
law so that there cannot be a common law right to
do it?
MR PAULING:	Your Honour, the preferred approach is to say

that the common law has grown to embrace the

situation.

McHUGH J: Well, how has it grown? To say that only a

supreme court of a State can do it or that the

common law recognizes the Family Law Court or a

magistrate or what court? After all, this is a

federation.

MR PAULING:	The question of whether any court other than the Family Court - and let us leave aside the fact
that the Supreme Court in the Northern Territory
has got specific statutory jurisdiction - need not
directly arise. Firstly, we say, plainly the
Family Court has - well, not plainly but we submit
that the Family Court has got jurisdiction.

McHUGH J: But that is by virtue of a statute?

MR PAULING:  Yes, and we say that the common law has

developed such that the appropriate court to go to

to seek an opinion on matters of this ought to be

the Family Court because of the unique

qualifications and qualities and, indeed, that is

the approach taken by the House of Lords in
England.	They say the only court that ought to
be - - -

DAWSON J: That is not quite different. The Family Court is

not a court without limits under this jurisdiction. The limits are found in the marriage power, divorce and matrimonial causes. It is not a general power

over children that would support the Family Law Act

which would point rather to the jurisdiction of the

State courts who have a quite general power.

MR PAULING:  The retreat we would take in respect of that is

that in the Northern Territory, of course, the

application of the Act - - -

Marion 33 30/4/91

DAWSON J:	Of course that is true, but you are testing the Act by reference to the more general jurisdiction
which it is -

MR PAULING:  Yes, Your Honour. I suppose what - and leave

aside all question of reference of powers or

cross-vesting - what one would have to establish is

that the exercise of the marriage power would

justify a Family Court deciding as between, for
example, a parent and child, whether or not a

particular activity, an operation in this case, was in the best interests of the child. You would have to hitch it for the marriage power to - firstly, it

would not apply to ex-nuptial children without any

reference of powers.

DAWSON J:  I must confess my ignorance. I am not sure what

the cross-vesting provisions do say in this area,

or in any area for that matter.

MR PAULING: If there was parens patriae

DAWSON J:	What are the cross-vesting provisions?
MR PAULING:	I will have to - - -
DAWSON J:	Do not stay to do it now.
MR PAULING:	Can I take Your Honours back to the written

submission? What we have done on page 6 is to set

out in tabular form the judgments which would

favour the view that court approval is necessary.

I should say that if.one is looking for cases where

the width of section 64(l)(c) has been discussed,

and I think some of these are at least on the lists

of authorities of some others, but the more

important one is In the Marriage of Brown and
Pedersen, (1988) 12 Fam LR page 506. That was a

case in respect of ordering psychiatric examination

of a child.

But the way in which we have approached the

list really should have commenced with Re Eve, the

Canadian case, which really resulted in a blanket
denial to a court of the capacity to order, in
effect, sterilization, but none the less, of
course, that court started on the basis that there

was no capacity on the parents to consent. It also

has to be read against the rights that are

entrenched by legislation in Canada, and that

affected that decision.

Can I just take Your Honours then to just a

few of the judicial statements.	I quote there
Lord Griffith in Re F.	He said:

Marion 34 30/4/91

I would myself declare that on grounds of

public interest an operation to sterilise a

woman incapable of giving consent either on

grounds of age or mental incapacity is

unlawful if performed without the consent of

the High Court. I fully recognise that in so

doing I would be making new law.

BRENNAN J:  What law was he making, crime or tort?

MR PAULING: Your Honour, both. In fact, both those and, as

His Lordship approached the matter, it may well be

that the carrying out of the operation would carry

professional consequences for the surgeon carrying

it out, so that he could open himself up to

criminal prosecution doing something unlawful

because it was not with consent; that he could be

sued. Indeed, the cases in this area in America

involved judicial consent to a sterilization when

the girl who was only slightly retarded thought she

was having her appendix out, and later after

marrying discovered she was sterilized, and that

resulted in an award of damages. Of course, there

may well be the professional consequences that I

have spoken of.

So the law, I suppose, that he would be making would fit into all three categories, but also would

be making law in the family law area, if you like,

at least in England where that might be done to say

that in the relationship between parent and child

and looking at the categories of rights and

obligations recognized by the law, one of the

rights that is denied to a parent is the right to

consent to a procedure as serious as this without

court approval.

DAWSON J:  Where does that come from?

MR PAULING: That notion of the common law?

DAWSON J: Yes.

MR PAULING: Well, Your Honour, I suppose really it is a

development when one looks to see what rights and

obligations there are between parent and child and

how they are expressed over the years and the

special obligations that apply in relation to

children who are incompetent.

DAWSON J:  Why do the parents, if they do, have power to

decide in an emergency situation?

MR PAULING: Well, because the rights and, indeed,

obligations of the parents have been· chartered over

the years and defined more or less ad hoc but, none

the less, defined.

Marion 35 30/4/91

DAWSON J: Well, no doubt, you will be able to point to some

definition somewhere.

MR PAULING:	Yes, Your Honour, I can.
DAWSON J:	.... Lord Griffith saying, "He is making new law".

I am not asking that facetiously because there must

be occasions when, for medical reasons, you would

say it was justified that the operation take place,

where it would be perfectly possible to make an

application to a court in order to have the comfort of the court's consent or order but where it is not

necessary and I just wonder how you draw the line

and why the parents' consent is enough in that

case, if it is, and why it is not in another?

MR PAULING:  Yes, Your Honour. I mean, emergency in most

jurisdictions and certainly in the

Northern Territory is dealt with statutorily.

DAWSON J:  Let us take not an emergency situation; a

medical situation where the hysterectomy is

necessary for reasons of malignancy, for instance:

it is not an emergency, it can be done over a

period of time.	You could perfectly well ask the
permission of the court.	Why do you not have to
then?

MR PAULING: Well, we would say, Your Honour, that in any

case where permanent infertility was to result from

the procedure that whether or not the motivating
force to operate was a malignancy, that because of

the consequences of the operation that approval

should be obtained in each case.

BRENNAN J: What, that you leave a malignant uterus to

moulder while the reserve judgment is produced?

MR PAULING: Well, the proposition posited by Justice Dawson

was that there was no emergency or that there was

plenty of time.

DAWSON J: There was plenty of time for the permission of

the court anyway.

MR PAULING: Yes, but if there was a case where, in order to

preserve the life or avoid an unacceptable risk to

the life and health of the child, an operation

should be done, you do not - - -

DAWSON J:  The proposition, of course. is that you leave it

to someone else in that situation to decide what is

for the welfare of the person who is incapable of

consenting themselves and it is not the court.

Why, in this particular situation do you say the

common law is developed to the point where they

Marion 36 30/4/91

say, just at that situation, it is for the court to

decide?

MR PAULING:  One way in which it has been approached is to

try and distinguish between therapeutic and

non-therapeutic outcomes.

DAWSON J: That is just a use of words because in each case

it is for the welfare of the - I am using the word
"child": it may not be a child, of course, if you
are really talking about people who are incapable

of deciding for themselves. In this instance it is

a child.

MR PAULING: Yes. If one takes the situation where the only

object of an operation was to render a person

infertile and because it took the view that, due to

mental incapacity, the child could not adopt or fulfill the role of a mother, or appreciate the

relationship between intercourse and pregnancy, or

the course of pregnancy, then taking that sort of

situation of sterilization it is hard to see how it

might be said that the operation would be for the

benefit of the child, I mean, absent medical

evidence that there would be distress or problems

associated with it, if your only object was to say,

"Well, this child suffers from arrest of

intellectual growth or some identifiable problem,

and really it would be a terrible nuisance if she

got pregnant" .

GAUDRON J:  How can a court say it if the parents cannot say

it? We are chasing our tails, are we not? If you

cannot say that is for the welfare of the child or

person then, of course, the court cannot say it

either. It is the dilemma you are in.

MR PAULING:	Yes, but the court may very well say it is not for the welfare of the child in which event - - -
GAUDRON J: But all of this is constructed on the

proposition that the court can say it is for the

welfare of the child.

MR PAULING: Well, what the court can determine is whether

or not it is for the welfare of the child, that is,

it can make such orders as are necessary to protect

the welfare of the child and make sure that that is

kept paramount. But can I hand up, just to show

the situation in the Northern Territory, some

provisions in relation to emergency medical

operations - so if I could hand up seven copies of

that. So, to set, as it were, one boundary, one

can see here that it would not be unlawful for a

medical practitioner, without consent, to carry out

a medical operation, if he and one other, or if she

and one other, in the case of an infant are:

Marion 37 30/4/91

of the opinion that

(a) the patient is in danger of dying or of

suffering a serious permanent disability;

and

(b) the performance of an operation on the

patient is desirable in order to prevent

the death of the patient or the
occurrence of the disability.

So that, when one looks at the legislation, the

corollary would appear to be, of course, that to

carry out in a non-emergency situation, surgery

without consent would be unlawful. So that that

really marks out one area, but we are not here
dealing and it is not suggested that in an
emergency where if the child incapable of

consenting, that one would come to the Family Court

and seek such an order.

DAWSON J: It seems to contemplate the consent of the

child's guardian as well, does it not, where

practical?

MR PAULING:	Yes, Your Honour.
DAWSON J:	Not the court.
TOOHEY J:	You are seeking, Mr Solicitor, to do more than attract the jurisdiction of the Family Court and
let us assume that there is jurisdiction to approve
such an operation where in the view of the court it
is for the welfare of the child.  You would want
this Court to go further, as I understand it, and
say that not only does jurisdiction exist but
unless the jurisdiction is invoked an operation of
this sort conducted on a child unable to give her
consent is unlawful?

MR PAULING:  Yes.

TOOHEY J: Whatever consequences follow, both for the doctor

who performs the operation and the parents of the

child?

MR PAULING:  Yes.

DAWSON J: That is because the common law developed - - -?

MR PAULING: Yes, Your Honour.

BRENNAN J: But you have got a Code so far as the doctor is

concerned, have you not?

MR PAULING:  Only in respect of - well, certainly in respect

of emergencies but we can put that to one side. In

Marion 38 30/4/91

the Criminal Code one can say, "Well, its unlikely

in most circumstances that there would be any
criminal consequences flowing to the doctor." But

let us take the situation of -

BRENNAN J: Is it possible for a common law offence to exist

in the Northern Territory?

MR PAULING:  No, Your Honour. No, the Code is quite

emphatic about that. I am sorry, I take

Your Honour's point, that one would have to see it

as being unlawful by some provision of the Code

but, when talking about the common law, what I am

saying is that if it was an element of a civil

action against the doctor for rendering somebody

infertile by an operation with the parents' consent
but without court approval, the lawfulness or

otherwise of the doctor's actions would be an

element; not necessarily an element but it

certainly would have a part to play.

DEANE J:  May it not be that some doctor of necessity is

incorporated by implication in the notion of

assault?

MR PAULING: Well, if it was - - -

DEANE J: That is the way the House of Lords went, as I

understand it.

MR PAULING: Perhaps we can deal with some sections of the

Code that would be relevant to Your Honour's

question. Section 155, headed:

Failure to rescue, provide help, &c. -

provides:

Any person who, being able to provide rescue, resuscitation, medical treatment,

urgently in need of it and whose life may be	first aid or succour of any kind to a person
endangered if it is not provided, callously
fails to do so is guilty of a crime.

And then, in the definition of assault, when it is talking of the application of force, it says,

in 187 ( C):

when rescuing or resuscitating a person or
when giving any medical treatment or first aid

reasonably needed by the person to whom it is

given or when restraining a person who needs

to be restrained for his own protection or

benefit.

Marion 39 30/4/91

So that the application of force by giving medical treatment, if there was a doctrine of necessity,

would not be then an application of force giving

rise to consequences of assault.

DEANE J:  So that in a matter of urgency, necessity may

authorize action. In a matter of non-urgency,

necessity may not justify action without appeal to

the parens patriae jurisdiction of the relevant

court.

MR PAULING:  Yes. One would, in any event, look at the

circumstances of the matter to see how it was that the operation came about, which is why, I suppose, all those ordinary incidents of being a parent of

children and making decisions about removal of
appendix or tonsils or adenoids - common things -

that parents can consent in this sort of way - I am

trying to fit it in to a doctrine of necessity, but

the idea being that there are, even with those

operations, sometimes emergency situations that

arise, where one would not give a second thought to

it. The problem is that the medical treatment that

we are talking about in this case, and which we say

stands apart from nearly every other form of

surgical intervention, and has all those emotional

overtones and elements to it, is not one that

ordinarily would need to be done in a hurry, and if

indeed the situation arose whereby the life or

health of the person was so gravely threatened that

the operation had to be carried out, there could be

no doubt that no consequences would flow from

carrying out the operation in those circumstances.

MASON CJ:  Now, Mr Solicitor, we do not seem to have

advanced very far during the course of the

afternoon.	How long is this case going to take
tomorrow?

MR PAULING: Well, Your Honour, what I propose to do between

now and tomorrow is to seek to crystallize the

source of power in the matter which I hope will not

take long to develop in the morning. In so far as

the cases are concerned, Your Honours, I do not

propose to dwell on them, nor do I propose to dwell

on the safeguards that might be considered. The

written submission rather makes the point and it

does not benefit, in our submission, from

elaboration.	So I would say, myself, about an
hour.

MASON CJ:  We will adjourn now until 9.45 am, Mr Solicitor.

MR PAULING: If Your Honour pleases.

AT 4.26 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 1 MAY 1991

Marion 40 30/4/91