WALKER and CHILD AND ADOLESCENT HEALTH SERVICE

[2025] FCWA 183

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WALKER and CHILD AND ADOLESCENT HEALTH SERVICE [2025] FCWA 183

CORAM: O'BRIEN J

HEARD: 1 AUGUST 2025

DELIVERED : Ex tempore

FILE NO/S: 9367 of 2019

BETWEEN: MR WALKER

Applicant

AND

CHILD AND ADOLESCENT HEALTH SERVICE

First Respondent

AND

MR LANGLEY

Second Respondent

AND

MS PATERSON

Third Respondent

Catchwords:

CHILD WELFARE – Where the child is in Intensive Care in circumstances where the clinical diagnosis is that he has suffered a non-survivable and irreversible brain injury - Where the Applicant is the child's stepfather and primary carer, having separated from the Third Respondent mother – Where the Applicant and the Third Respondent mother have joint decision-making responsibility pursuant to consent orders – Where the Third Respondent mother accepts the clinical diagnosis and the advice of the treating medical practitioners that the appropriate course is the removal of artificial life support measures – Where the Applicant is not yet prepared to accept the clinical diagnosis and wishes to obtain further advice - Where the Applicant seeks to restrain the health service from "taking any step or refusing to take any step that will negatively impact upon the options for assessment and treatment" and seeks a mandatory injunction compelling the immediate commencement of dialysis - Where the evidence of the treating specialist is that the commencement of any form of invasive treatment, including dialysis, is contrary to the child's best interests – Where the Applicant had previously consented to the undertaking of scans involving the injection of dye which would potentially confirm the clinical diagnosis but subsequently withdrew his consent – Where the evidence of the treating specialist is that there is no clinical need for scans to confirm what is a unanimous diagnosis, but that treating practitioners would accommodate such a scan to provide certainty to the family and conclusive evidence of brain death – Where one of the two alternative available scans can be undertaken within approximately an hour and provide an immediate outcome – Where the other alternative scan will not be available for several days – Orders made to facilitate the immediate scan, on undertakings by the health service that should the scan cast any doubt on the diagnosis alternative treatment options will be considered and discussed with the parties, and that no withdrawal of life support will take place without either the joint consent of the Applicant and the Third Respondent mother, or an order of the Court – Further orders made for the provision of medical records to the Applicant - Proposed mandatory injunction compelling the commencement of dialysis not granted – Proceedings otherwise adjourned with liberty to relist as a matter of urgency if required.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms Pepper
First Respondent	:	Ms Paljetak
Second Respondent	:	No Appearance
Third Respondent	:	Via audio
Independent Children's Lawyer	:	Ms Davidson

Solicitors:

Applicant	:	Pepper Legal
First Respondent	:	State Solicitor's Office
Second Respondent	:	Self-Represented Litigant
Third Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Legal Aid WA

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym (Walker and Child and Adolescent Health Service & Ors) has been approved by the Family Court of Western Australia pursuant to s 236B(2) of the Family Court Act 1997 (WA).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part 11A of the Family Court Act 1997 (WA) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1[Child A] was born in [2016]. His parents are [Mr Langley] and [Ms Paterson].

2[Mr Walker] was in a relationship with Ms Paterson after she and Mr Langley separated. On his evidence, he has been the primary carer for Child A since he began living with Ms Paterson in 2017. Mr Walker and Ms Paterson separated in 2019. On the evidence of Mr Walker, Child A has been in his sole care since that time.

3On 25 March 2020, orders were made by consent as between Mr Walker and Ms Paterson. Those orders provide for them to have shared parental responsibility for Child A, for Child A to live with Mr Walker, and for him to spend time with Ms Paterson as agreed between the parties. Mr Langley did not participate in those proceedings. He apparently presently lives in [Suburb A], although his particular details are unknown, to Mr Walker at least.[1]

[1] Mr Walker said he has no communication with Mr Langley. Ms Paterson volunteered that she is able to contact him. In any event, it appears he has had no recent involvement with Child A.

4On 21 July 2025, Child A had a medical episode at home. He suffered cardiac arrest and was administered CPR cumulatively for approximately 60 minutes, first at home, then by ambulance officers. He was transported by ambulance to [Hospital A]. He has been in the Intensive Care Unit ("ICU") since admission.

5On the evidence of Mr Walker, Child A’s respiratory function has deteriorated because of his failing renal function. He says that he has been informed that Child A has suffered a brain injury which is not survivable. He says that there is not yet "clear evidence of brain death", that he is currently negotiating about a further brain scan, and that he has not yet been provided with medical records despite requesting them and submitting a request under the Freedom of Information legislation two days ago on 29 July 2025.

The application

6Mr Walker seeks orders restraining the Child and Adolescent Health Service (for ease of reference "the hospital") from "taking any step or refusing to take any step that will negatively impact upon the options for assessment and treatment" of Child A. He seeks a further order that the hospital forthwith administer dialysis treatment to Child A. He seeks orders for the provision of copies of all medical records relating to Child A’s assessment and treatment since his admission.

7In his affidavit filed with the application late this afternoon, Mr Walker says that he wishes to seek a second opinion about Child A’s overall condition. Having consulted with "ICU Clinician [Nurse A]", he understands that his requests are reasonable and that refusal to administer dialysis "may be fatal within 24 – 48 hours". He expresses his understanding that dialysis will not cause Child A any suffering in his current state, and does not carry any life-threatening risks, but that "non treatment now is likely to result in death within 24 – 48 hours."

8Nurse A operates [A Medical] Hotline. He is apparently an experienced intensive care nurse. It is not suggested that he is a qualified doctor. He has not had any involvement in the diagnosis or treatment of Child A. The Medical Hotline offers services which it says are designed to improve the lives of families of critically ill patients in intensive care, assist those families to "stay in control" of the destiny of their loved ones, "make informed decisions, have peace of mind, control, power and influence." It offers services including the review of medical records, and what is described as "professional advocacy" for critically ill patients and their families. It also offers to facilitate second medical and nursing opinions in intensive care.

9On receipt of the application of Mr Walker, an urgent hearing was arranged. All participants attended by telephone or video link. Mr Walker participated in the hearing and was represented by his solicitor. Ms Paterson participated in the hearing, albeit given the urgency of the matter she did so without the benefit of legal representation. The State Solicitor's Office represented the hospital, and Ms Davidson of Legal Aid Western Australia appeared as amicus curiae on behalf of Child A.

10At the commencement of the hearing, counsel for the hospital confirmed that they had no information as to contact details for Child A’s biological father, Mr Langley. Ms Paterson indicated that she is prepared to provide those details. The hospital opposed the injunction sought by Mr Walker, and the order sought directing the provision of dialysis treatment to Child A forthwith. The hospital confirmed that it could provide Mr Walker with an extract of the digital current hospital records within 24 hours, and that it did not otherwise consent to or oppose the order sought in that regard.

The evidence

11Mr Walker gave oral evidence confirming that set out in his Case Information Affidavit filed late this afternoon and summarised earlier in these reasons. He said that he had spoken to Nurse A on multiple occasions over the last several days. He expressed his own view that dialysis would help Child A survive for longer than a few days. He was concerned that until he could get a second opinion, he remained unclear as to whether Child A’s condition is terminal. He felt that an opinion from an independent neurologist might assist, but he did not know how long that might take. He said that he was talking to medical advisers who would point him to the correct people to talk to.

12[Dr A] gave evidence. He is the head of the relevant department at Hospital A. In that role, he has been aware of Child A’s circumstances since his admission and took over his care on Saturday, 26 July 2025.

13Dr A explained that a CT scan undertaken on the evening of Child A’s admission confirmed that he had suffered a severe brain injury. While he initially had some reactivity in his pupils, by no later than Saturday morning his pupils were fixed and dilated. There has been no sign of neurological activity since and no reaction to stimuli. Dr A was clear in his diagnosis that Child A has suffered an irreversible brain injury, which he will not survive.

14He explained that Child A has also suffered severe kidney failure and has poor heart and lung function. He has suffered a general hypoxic injury to his entire body, with the oxygen demands of the brain meaning that his brain injury is the most severe.

15He explained that there are two options available for a scan to objectively and definitively confirm the diagnosis. Both involve the injection of dye and observation as to whether there is any blood flow to the brain. One involves the use of radioactive dye, and one does not.

16Dr A said that, sadly, the scans are not clinically required to confirm Child A’s diagnosis. That said, if they perform a useful function in providing certainty to the family that is entirely understandable, and the hospital would facilitate that. A CT angiogram (which does not involve radioactive dye) can be arranged within an hour, takes only a few minutes, and provides a virtually immediate response. Mr Walker had previously consented to a scan involving radioactive dye but withdrew that consent based on an expressed concern regarding Child A’s renal failure. A scan involving radioactive dye cannot be arranged outside normal working hours.[2]

[2] The hearing in this matter commenced at 5:00pm on Friday 1 August 2025 and did not conclude until approximately 9:30pm. The administration of a scan involving radioactive dye could not have taken place until Monday 4 August 2025 at the earliest, where a CT angiogram could be arranged immediately.

17Mr Walker had expressed concern that the injection of dye required to undertake the scan might itself lead to further damage to Child A’s kidneys. Dr A was squarely asked that question. He was firm in his opinion that, given the extensive renal failure Child A is already experiencing, there is no risk to his renal function from the administration of the dye and the undertaking of the scan.

18Dr A also made clear that, in his view, the administration of dialysis, which is by its nature an invasive treatment, is not in Child A’s best interests. In circumstances where he has a non-survivable and irreversible brain injury, his treating doctors would be fundamentally opposed to embarking on invasive treatment which would be of no conceivable benefit to him.

19That said, if the administered scan was to cast doubt on the current diagnosis, Dr A confirmed that the hospital would reconsider its position on dialysis. In saying that, he made it clear that even if the scan does not confirm that Child A is brain-dead, that does not in any way mean that he will make a meaningful recovery.

20Sadly, if the scan confirms the diagnosis, then there are no treatment options for Child A. The hospital would then maintain his current life‑support systems in a sensitive manner to allow his family to come to terms with the tragic circumstances they face, to spend time with him, and to be with him when he dies.

21Dr A confirmed that the diagnosis and prognosis he had explained represented the unanimous view of the doctors involved in Child A’s treatment. He confirmed also that the hospital would facilitate Mr Walker and Ms Paterson accompanying Child A while the scan is undertaken if that was their wish.

Disposition

22After the evidence was given, and all concerned had the opportunity to ask questions of Dr A, with the consent of Mr Walker’s lawyer I expressed my preliminary view. I made it clear, particularly for the benefit of Ms Paterson as she was unrepresented, that the expression of that preliminary view was intended to be of assistance to the discussions that the parties were about to have, and did not represent a concluded view on my part. I made it clear that all concerned would have the opportunity to make submissions if they sought to do so, and that I would hear and determine the matter tonight for obvious reasons.

23I explained to the parties the weight I must necessarily give to the expert opinion of the medical specialists directly involved in the care of Child A. With no disrespect to Nurse A or to the support which he provides to families facing the awful circumstances in which this family finds itself,[3] he would not purport to be a medical expert, nor does he have direct knowledge of Child A.

[3] As I understand it, Nurse A provides that support remotely, by telephone and email communication and via his website.

24I explained that on the evidence given, the diagnosis and prognosis are regrettably clear and have been expressed with certainty and unanimity. That said, as acknowledged by the hospital, if the family seeks the objective confirmation of a scan, they should have that.

25I explained that I would be highly unlikely to order treating doctors to administer active, let alone invasive, treatment which they firmly believed to be contrary to the best interests of their patient. The proposition that dialysis should be commenced immediately has to be viewed in that context.

26I explained further that the evidence made it clear that there was no appreciable risk to Child A, in terms of his renal function in particular, in undertaking the proposed scan. That said, the scan is not seen by the hospital as being required given the degree of certainty expressed in relation to the diagnosis and prognosis. Its purpose would be to provide objective certainty and closure to the family, by sadly confirming that Child A is brain dead.

27I explained that, subject to persuasion by submissions to the contrary, I was likely to conclude that there were only two options available. The first logical possibility was that having heard the evidence, Mr Walker and Ms Paterson on reflection might accept the diagnosis and prognosis and provide the necessary consent for Child A’s current artificial life-sustaining treatment being discontinued in an appropriate and sensitive timeframe. The second logical possibility, if Mr Walker and Ms Paterson feel unable to take that step, is that arrangements are made (either by their consent, or if necessary, by order) for the relevant scan to be undertaken immediately this evening, with the application being adjourned to await the outcome of that scan and without any other order being made at this stage.

28The parties had discussions but were unable to reach full agreement. Ms Paterson indicated after those discussions that she accepts the advice of the hospital, including the prognosis. Mr Walker has not yet reached that point, which is entirely understandable in the circumstances. The taking of immediate steps to undertake the scan is therefore appropriate. When the results of the scan are known, which will be later tonight, Mr Walker will then be better able to consider the clear advice he has been given by the hospital.

29I have determined to make the orders set out below for the reasons articulated, and having received the undertakings to be recorded.

Orders

Noting the undertaking given through counsel by the Child and Adolescent Health Service that

(a)currently provided life sustaining support for the child will not be withdrawn other than by the consent of the Applicant and the Third Respondent, or as authorised by further order of the court; and

(b)if the result of the CT Angiogram changes the clinical teams’ assessment of [Child A’s] prognosis of irreversible nonsurvivable brain injury, then the CAHS will reconsider the course of action in relation to his care and treatment;

It is ordered:

1.The Child and Adolescent Health Service and all medical practitioners and staff at [Hospital A] are hereby authorised to administer a CT angiogram to [Child A], born in [2016] and to immediately provide the results of that scan to the Applicant, [redacted], and his solicitor and to the Third Respondent, [redacted].

2.The Child and Adolescent Health Service must, as promptly as possible, provide extracts of the child's digital medical records to the Applicant, [redacted], and his solicitor and to the Third Respondent, [redacted].

3.The application of the Applicant filed today is otherwise adjourned generally, with liberty to all parties to seek a relisting on an urgent basis.

These reasons are the reasons for decision delivered on 1 August 2025, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

4 AUGUST 2025