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Making sense of the Family Court's decisions on the non-therapeutic sterilisation of girls with intellectual disability

Journal Article


Abstract


  • It is well established in Australian family law that the welfare jurisdiction of the Family Court of Australia permits the

    non-therapeutic1 sterilisation of a girl with an intellectual disability2 where this is in the girl's 'best interests' and is a'step

    of last resort'.3 Section 67ZC of the Family Law Act 1975 (Cth) (the Act) vests the court with jurisdiction to make orders

    relating to the 'welfare of children' where those children are 'children of [a] marriage'.4 In deciding whether to make an

    order, the'best interests of the child' is the 'paramount consideration'.5 Section 67ZC was inserted into the Act as part of

    the broad scale amendments effected by the Family Law Reform Act 1995 (Cth) (the Reform Act). Prior to this time,

    from 1987 onwards, ss 63 and 64 of the Act (as it then was) conferred jurisdiction on the court vis-a-vis 'proceedings in

    relation to the custody, guardianship or welfare of, or access to, a child'. Section 60F(2) limited this jurisdiction to 'a

    child of a marriage'. In a series of decisions made prior to the Reform Act, the court held that the exercise of the welfare

    jurisdiction extends to the making of orders relating to the sterilisation of a child of a marriage.6The legal test for making

    orders relating to sterilisation was settled by the High Court in Marion's case.7 Where a child cannot give informed

    consent to the procedure, his or her parents can only consent to a sterilisation procedure if its purpose is

    therapeutic.8Where its purpose is non-therapeutic, only the court can consent,9 and will only consent, where the

    procedure is in the best interests of the child and is a step of last resort.10 In P v P11 it was held that the Family Court's

    jurisdiction to make orders relating to the sterilisation of a child of a marriage was within the Commonwealth's

    legislative power because the sterilisation of a child directly arises out of, and is itself an aspect of, the marriage

    relationship of the parents of the child, and it directly concerns parental rights and the custody or guardianship of infants

    in relation to divorce or matrimonial causes.

Publication Date


  • 2008

Citation


  • L. Steele, 'Making sense of the Family Court's decisions on the non-therapeutic sterilisation of girls with intellectual disability' (2008) 22 (1) Australian Journal of Family Law 1-23.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/150

Number Of Pages


  • 22

Start Page


  • 1

End Page


  • 23

Volume


  • 22

Issue


  • 1

Abstract


  • It is well established in Australian family law that the welfare jurisdiction of the Family Court of Australia permits the

    non-therapeutic1 sterilisation of a girl with an intellectual disability2 where this is in the girl's 'best interests' and is a'step

    of last resort'.3 Section 67ZC of the Family Law Act 1975 (Cth) (the Act) vests the court with jurisdiction to make orders

    relating to the 'welfare of children' where those children are 'children of [a] marriage'.4 In deciding whether to make an

    order, the'best interests of the child' is the 'paramount consideration'.5 Section 67ZC was inserted into the Act as part of

    the broad scale amendments effected by the Family Law Reform Act 1995 (Cth) (the Reform Act). Prior to this time,

    from 1987 onwards, ss 63 and 64 of the Act (as it then was) conferred jurisdiction on the court vis-a-vis 'proceedings in

    relation to the custody, guardianship or welfare of, or access to, a child'. Section 60F(2) limited this jurisdiction to 'a

    child of a marriage'. In a series of decisions made prior to the Reform Act, the court held that the exercise of the welfare

    jurisdiction extends to the making of orders relating to the sterilisation of a child of a marriage.6The legal test for making

    orders relating to sterilisation was settled by the High Court in Marion's case.7 Where a child cannot give informed

    consent to the procedure, his or her parents can only consent to a sterilisation procedure if its purpose is

    therapeutic.8Where its purpose is non-therapeutic, only the court can consent,9 and will only consent, where the

    procedure is in the best interests of the child and is a step of last resort.10 In P v P11 it was held that the Family Court's

    jurisdiction to make orders relating to the sterilisation of a child of a marriage was within the Commonwealth's

    legislative power because the sterilisation of a child directly arises out of, and is itself an aspect of, the marriage

    relationship of the parents of the child, and it directly concerns parental rights and the custody or guardianship of infants

    in relation to divorce or matrimonial causes.

Publication Date


  • 2008

Citation


  • L. Steele, 'Making sense of the Family Court's decisions on the non-therapeutic sterilisation of girls with intellectual disability' (2008) 22 (1) Australian Journal of Family Law 1-23.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/150

Number Of Pages


  • 22

Start Page


  • 1

End Page


  • 23

Volume


  • 22

Issue


  • 1