Category Archives: Family Law

Children – Intellectual disability – Sterilisation – Family Law

Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).

“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.

Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”

The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.

The court held that the Family Court of Australia has the jurisdiction  to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.

Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.

Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.

Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.

http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html

Lawyers

1300 00 2088

Harris v Caladine [1991] HCA 9 | 17 April 1991

ON THIS DAY in 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).

Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.

Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power.  The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.

Lawyers

Sydney, Australia

1300 00 2088

Mallet v Mallet [1984] HCA 21 | 10 April 1984

ON THIS DAY in 1984, the High Court of Australia delivered Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 (10 April 1984).

Equality had long been the starting point when dividing matrimonial property on divorce.  The High Court in this case held that there is not to be a presumption of equality and that each case is to be determined upon a consideration of it’s particular circumstances.

Section 79(4) of the Family Law Act 1975 (Cth) requires consideration of the financial contributions, non-financial contributions and parental and/or homemaker services.

Lawyers

Sydney, Australia

1300 00 2088

The Australian Standards of Practice for Family Assessments and Reporting

The Family Court of Australia, Federal Circuit Court of Australia and the Family Court of Western Australia have jointly released The Australian Standards of Practice for Family Assessments and Reporting. The standards aim to:

  • “promote good practice in conducting and reporting in full family assessments by social workers and psychologists in family law matters…”
  • “provide information to the judiciary, agencies, legal professionals and parties who utilise the services of family assessors to increase the understanding in the broader sector as to what constitutes good practice in family assessments and reporting.”
  • “inform what can be expected as a minimum standard of practice when conducting family assessments and preparing reports.”

To access the standards, visit http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb55680719c88d0/standards%20of%20practice_WEB_091214.pdf.

Australian Standards of Practice for Family Assessments and Reporting