Secretary, Department of Health and Community Services v JWB (Marion's Case)

175 CLR 218
106 ALR 385

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Court:

Judges: Mason CJ
Brennan J
Deane J
Dawson J
Toohey J
Gaudron J
McHugh J

Hearing date: 30 April 1991; 1 May 1992, 2 May 1992
Judgment date: 6 May 1992

Canberra

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ORDER

Appeal allowed.

Set aside the answers to the case stated given by the Full Court of the Family Court.

Answer the questions in the case stated as follows:

Question: (1) Can the Applicants (the respondents in this Court) as joint guardians of the child (Marion) lawfully authorise the carrying out in the Northern Territory, of a sterilisation procedure upon the said child without an order of a Court?

Answer: No.

Question: (2) If no to question 1, does the Family Court of Australia have jurisdiction:

(a)

to authorise the carrying out of such a procedure; or

(b)

to approve the consent of the Applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?

Answer: (a) Yes. (b) No. (c) No, though in authorising the carrying out of such a procedure, the Family Court may, if necessary, permit the Applicants to give any requisite consent.

Question: (3) Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law?

Answer: The step referred to in question 2(a) is required by law.