the family law act 1975 gives federal courts and state welfare power in relations to children
The Family Law Act 1975 gives federal and State courts welfare power in relations to children which is basically the same with the parens patriae power of the State courts. This power allows the courts to interfere with a parent’s exercise of parental responsibility. However, the FLA also provides that a family court cannot make an order with respect to a child who is the subject of a State welfare order unless such order is expressed to come into effect once the child welfare law ceases. Usually, this happens with medical related children’s cases.
The case of DOCS v Y  NSWSC 644 involves an anorexic teenager whose parents were opposed to the treatment. This case shows that the State can interfere with the powers of parents. The plaintiff was the Department of Community Services, the defendants were the teenager’s parents while the teenager was represented by an independent children’s lawyer. The court found that the Family Law Act does not interfere with the State court’s welfare jurisdiction and placed the teenager as a ward of the State. The teenager was ordered to remain in the hospital and restricted her parent’s access to her to prevent them from undermining her medical treatment.
In the case of Secretary, Department of Health and Community Services v JWB and SMB (Re Marion) (1992) FLC 92-293 the issue is whether or not guardians could authorize a child’s sterilization and whether the court should approve the procedure. The High Court ruled that the procedure being irreversible is out of the ordinary incidents of parental responsibility and therefore requires court authorization. The procedure involved was not a by product of surgery to treat a malfunction or disease. Hence, the court authorization is meant as a protection for the child because the consequences of a wrong decision were considered by the court to be grave.
The case of Re Marion (No 2) (1994) FLC 92-448 tackled the proposed hysterectomy of a severely disabled child. The child’s cognitive function was severely impaired with no chances of improving, hence, the Gillick case with respect to the test of consent cannot be applied to her case. The court ordered the operation which could reduce the seizures the child suffered from and after a showing that the child’s cognitive functions were not going to improve.
Alex, a 13 year old child was found to be anatomically a girl but was diagnosed as having gender identity dysphoria. Alex was treated as a boy and expressed the desire to be one. In his case Re Alex: Hormonal treatment for gender identity dysphoria (2004) FLC 93-175, the court, concerned about the depression and distress if permission is not granted, ruled that it was in Alex’s best interest to receive hormone treatments.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.