Preamble

The Family Law Rules 2004 commence on 29 March 2004. The following Practice Directions issued by regions of the Family Court of Australia consequently no longer reflect the forms and procedures of the Rules and the Case Management Directions.

A. The following are replaced from 29 March 2004:

- Southern Region Guidelines "For special medical procedures for children in Victoria (O 23B Family Law Rules
- Northern Region Practice Direction 2 of 1996 "Guidelines and protocols - Approval of special medical procedures  for children in Queensland (Order 23B of the Family Law Rules) - Northern Region"

B. The following Practice Direction takes effect on 29 March 2004: Victorian and Queensland Registries: Medical Procedure Applications

The practice and procedure related to the conduct of applications for medical procedure applications are contained in the attached documents:

1. Guidelines and protocols: Medical Procedure Applications for Children in Victoria (Division 4.2.3 Family Law Rules 2004)

2. Guidelines and protocols - Medical Procedure Applications for Children in Queensland (Division 4.2.3 Family Law Rules 2004)


1. GUIDELINES AND PROTOCOLS: MEDICAL PROCEDURE PROCEDURE APPLICATIONS FOR CHILDREN IN VICTORIA

The guidelines and protocols

Statement of objectives

These guidelines and protocols are intended to inform those who use the Court and their lawyers of:

(a) The protocols between the Family Court of Australia (FCA), the Office of the Public Advocate (OPA) and Victoria Legal Aid (VLA) and supported by the Victorian Department of Human Services (DHS) with respect to the process of obtaining court approval of a Medical Procedure for a child in Victoria, and in particular children with an intellectual disability;
(b) The preferred approach to be followed when considering whether a child should undergo a medical procedure that may permanently effect his/her quality of life.

The guidelines and protocols aim to:  

(a) Promote positive outcomes for children and young persons;
(b) Promote the care, welfare and development of children and young persons;
(c) Provide intending applicant/s and other interested parties with the opportunity to identify and discuss all relevant issues;
(d) Assist in identifying, where appropriate, alternative options and strategies;
(e) Encourage and support a co-operative and collaborative approach between the four participating organisations and medical and health professionals;
(f) Ensure consistent and timely management of applications for a medical procedure for a child;
(g) Ensure that a Court hearing is of 'last resort', after all other options have been tested or considered and failed to or been assessed as unable to produce a satisfactory outcome;
(h) Ensure that, if this matter proceeds to a court hearing, the Family Law Rules are followed and, in particular, all necessary evidence is available to the Court in compliance with Division 4.2.3 of the Rules.

Role of participants

1 Office of the Public Advocate (OPA)

(Before the application is filed)

1.1     The Office of the Public Advocate (OPA) advocates for the interests of a disabled child before an application is filed.

1.2     The FCA and VLA will refer any first instance enquiry received to the Senior Advocate of OPA.

1.3     The Advocate will meet with the enquirer(s) when practicable and advise them of the Court's requirements and discuss with them alternative and less invasive procedures or treatments and, in light of experience to date, whether they have proved to be adequate or inadequate.

1.4     OPA will make it clear, at all times, that it has no authority to preclude an application to FCA.

1.5     OPA may, at any time, suggest alternative medical and support services to the enquirer(s). It may facilitate introductions to service providers and furnish materials including appropriate educational materials and other information. The enquirer(s) are, at all times, entitled to refuse any such assistance from the OPA.

1.6     If at any time, the enquirer(s) wish to proceed with an application to the FCA, the Advocate will, on behalf of the child, assist the enquirer(s) to obtain independent medical and other appropriate recommendations in support of the application from appropriately qualified experts. This may include reports from any treating doctors, specialists, psychologists, and/or other relevant service provider (for example, schools, disability services). All reports should be forwarded to both the enquirer(s), OPA and the child representative (if appointed) on receipt.
Alternatively, the enquirer(s) may obtain any relevant reports without the assistance of OPA. It is appropriate that copies of all reports be forwarded to OPA and the child representative (if appointed) on receipt.

1.7     If OPA has obtained the relevant reports and materials on behalf of the enquirer(s), OPA will inform the enquirer(s) of its preliminary attitude to the proposed medical or surgical procedure.

1.8     If the enquirer(s) has not accepted OPA's assistance to obtain reports and other relevant material under paragraph 1.6, and obtained reports of their own, and the enquirer(s) wishes to proceed with an application to the FCA, OPA may obtain independent reports by appropriately qualified experts attached to publicly funded services. OPA will provide copies of these reports to the applicant and child representative (if appointed) on receipt.

1.9     In the event that OPA has obtained reports under paragraph 1.8, and the enquirer(s) wishes to proceed with an application to the FCA, OPA will inform the enquirer(s) of its preliminary attitude to the proposed medical or surgical procedure.

1.10    In the event that OPA considers the proposed medical or surgical procedures to be contrary to the best interests of the child, the Advocate will facilitate a meeting with the enquirer(s) to discuss alternative less restrictive options.

1.11    OPA may refer enquirers to the FCA for the purpose of attempting to resolve the issue through a dispute resolution process.

1.12    If the enquirer(s) wishes to proceed with an application to FCA, OPA will refer the enquirer(s) to the Program Co-ordinator of Family and Civil Law at VLA.

2          Victoria Legal Aid (VLA)

2.1     VLA will refer any enquiry received in the first instance concerning a child with an intellectual disability to OPA.

2.2     If the enquirer(s) wishes to proceed with an application to FCA, the Program Co-ordinator will arrange for the enquirer(s) to receive initial advice from an VLA lawyer or refer the enquirer to a private practitioner who has relevant expertise.

2.3     If the enquirer(s) seeks legal representation,VLA will consider any application for legal assistance applying its usual means and merits tests.

3          Family Court of Australia (FCA)

3.1     Any application or enquiry received in the first instance at the FCA Melbourne or Dandenong registries will be referred to a designated registrar.

3.2     The designated registrar will ascertain from the enquirer(s) whether or not the enquirer(s) has spoken with OPA or VLA.

3.3     In the event that the enquirer(s) has not spoken with OPA or VLA, the designated registrar will, in appropriate cases, refer the enquirer(s) to OPA.

3.4     An application under Division 4.2.3 of the Family Law Rules will only be issued by a designated registrar.

3.5     When an application is issued, the designated registrar will as soon as practicable inform OPA and VLA.

3.6     The designated registrar will list the application within 14 days in consultation with the Administrative Judge.

3.7     The FCA will provide to intending applicants procedural assistance, including copies of all necessary forms and advice as to the applicable Family Law Rules, including these guidelines and protocols.

4          (After the application is filed)

4.1     When an application is made to the FCA the matter will, whenever practicable, be listed before a judge who has been designated to hear such applications.

4.2     The applicant will, as soon as practicable, serve OPA with all materials filed in FCA.

4.3     At this hearing, the Court may order, or any party or interested person may apply for, the appointment of a child representative.

4.4     On the first return date of the application, OPA may attend Court and in an appropriate case make application to act as amicus curiae (a friend of the court) and, subject to the direction of the presiding judge, the case will be adjourned to a date no later than eight weeks from the first return date.

4.5     The Court may consider making orders and directions for the parties and any other persons to obtain, file and serve any relevant material including but not limited to:

(i) independent reports
(ii) research articles and decisions relevant to the case.

4.6     If the FCA orders a child representative be appointed, VLA will provide representation for the child and will not seek costs from the parents of the child.

5          Role of the child representative

5.1     The child's representative will:

(a) Be provided with all relevant documents on the Court file by the Court;
(b) Contact OPA or such other agency or person to seek information and advice to:

(i) establish whether all alternative and/or less invasive options have been addressed in the material filed with the Court  identify alternative and/or less invasive options and obtain advice on less restrictive alternatives to the proposed procedure that will promote the welfare and best interests of the child  
(ii) obtain reports by appropriate experts and any other relevant material;

(c) Ensure that the child's views, if able to be ascertained, are made known to the Court in the proper manner;
(d) Establish whether:

(i) the child can give informed consent to the proposed procedure
(ii) the child's decision-making capacity could improve to such an extent that an informed consent could be given in the future
(iii) the proposed procedure can be postponed to a date in the future when an informed consent may be obtained from the child;

(e) Ensure that all relevant evidence is put to the Court to indicate the available options for the child and the advantages and disadvantages of each option;
(f) Make submissions regarding the case management of the application;
(g) Indicate any orders sought on behalf of the child including whether there is benefit in the appointment of a court expert, the nature of the expertise required by the expert and the matters appropriate for the expert to consider;
(h) Indicate, if appropriate, the attitude of the child representative to the application.

Primary dispute resolution

Given that the Family Law Rules specify that the approval of the Court is required before any medical procedure (as defined in the Rules) is undertaken on a child and further as such procedure may be intrusive and irreversible, then primary dispute resolution strategies cannot be used to bypass or avoid this requirement. A negotiated settlement which does not require approval by the Court can only involve non-intrusive and reversible alternatives.

1          Dispute resolution

1.1     Dispute resolution processes provide a means for discussion between all concerned with the best interests of the child. The aim is to enable people to:

(a) Identify the issues that have led them to consider, or to refuse, the proposed medical procedure;
(b) Communicate effectively with other parties and those concerned about these issues;
(c) Explore information about options and non-intrusive alternatives;
(d) Determine if an agreement can be reached that will accommodate the needs of the child and the other parties involved;
(e) Reach a mutually acceptable agreement.

2          Forms of agreement

2.1     Agreements reached using dispute resolution processes may include a decision:
(a) To trial options and to access information and services;
(b) That there is a need for the medical procedure.

It should be noted that an agreement among the participants may not remove the requirement for the Court to determine the appropriateness of and to authorise the medical procedure proposed (for example, the sterilisation of a child with an intellectual disability).

3          Voluntary and court-ordered dispute resolution

3.1     Intending applicants are encouraged to participate in dispute resolution processes prior to the filing of an application. Applicants may also voluntarily seek to participate in dispute resolution processes after the filing of an application. The Court may also, as appropriate, order applicants to participate in one of the Court's primary dispute resolution processes after the filing of an application.

4          Participants in dispute resolution

4.1     Participants in dispute resolution processes may include the following:

(a) The parents/guardians and carers and/or their legal representatives;
(b) The child or young person;
(c) The advocate from OPA;
(d) The child's representative.
(e) Family Court counsellor/mediator or contracted counsellor/mediator;
(f) Family Court registrar;
(g) Any other interested party or person (for example, a relative, medical practitioner or other professional).

2. GUIDELINES AND PROTOCOLS: MEDICAL PROCEDURE APPLICATIONS FOR CHILDREN IN QUEENSLAND

The Guidelines and protocols

These guidelines and protocols relate to the application process for seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.

These guidelines and protocols are intended to inform those who use the Court and their lawyers of:

(a) The protocols between the Family Court of Australia, the Department of Communities (Queensland) and Legal Aid Queensland (the participating organisations) with respect to the process of obtaining Court approval of a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.
(b) The `standard approach' to be followed when considering whether a child should undergo such a medical procedure.

I. Statement of Objectives

The guidelines and protocols aim to:

(a) Promote positive outcomes for children.
(b) Provide intending applicants and other interested parties with the opportunity to identify and discuss all relevant issues.
(c) Assist in identifying, where appropriate, alternative options and strategies.
(d) Ensure that a Court hearing is of `last resort' after all other options have been tested or considered and failed to, or been assessed as unable to, produce a satisfactory outcome.
(e) Ensure that if the matter proceeds to a court hearing the Family Law Rules are followed, and in particular, all necessary evidence is available to the Court in compliance with rule 4.09 of the Family Law Rules.
(f) Support a co-operative and collaborative approach between the three participating organisations.
(g) Ensure consistent management of Medical procedure Applications.

II. The Guidelines

1.1     Pre-filing services including provision of information, services and support to families

1.2     Referral to the Queensland Department of Communities or nominated Authority:

A person considering making a medical procedure application may contact the Department of Communities, or nominated Authority, to be advised of appropriate services available to assist the family and the child. The Family Court of Australia and Legal Aid Queensland will advise interested persons, or intending applicants, to contact the Department, or nominated Authority, for information and assistance.

1.3     Role of the Department:

The role of the Queensland Department of Communities includes:

(a) Seeking and promoting positive outcomes for the protection and best interest of the child and family.
(b) Assisting intending applicants and other interested persons in considering, where appropriate, alternative options and strategies.
(c) Providing information and support to families, carers and professionals, as appropriate, including:

Assistance with identifying appropriate support services for the child and family;
Referral to professionals with relevant expertise including in respect to disability; and
Assistance to access relevant information, educational material and publications.

1.4     Referral to Legal Aid Queensland:

Where any interested person, or intending applicant, requires legal advice or assistance, the Family Court of Australia and the Queensland Department of Communities will refer them to Legal Aid Queensland. Legal Aid Queensland will:

(a) Provide legal advice and information about the Court process.
(b) In appropriate circumstances offer legal assistance.
(c) Where appropriate, call a conference to allow all parties to discuss the issues.

1.5     Procedural advice:

The Family Court of Australia will provide to intending applicants procedural assistance, including copies of all necessary forms and advice as to applicable rules of the Court, including these guidelines and protocols.

1.6     Access to primary dispute resolution:

Prior to filing intending applicants are encouraged to apply to participate in primary dispute resolution processes, or where appropriate, may be referred by any of the participating organisations to a dispute resolution process. In determining the appropriate form of dispute resolution, the participating organisations will act co-operatively.


2.1     Primary Dispute Resolution

2.2     General:

Dispute resolution processes provide a structure for negotiation between parties and assistance in the communication process. The aims of dispute resolution processes are to assist people to:

(a) Identify the different issues that they are facing which has led them to consider, or refuse, the proposed medical procedure.
(b) Communicate effectively with other parties about these issues.
(c) Explore options and alternatives.
(d) Determine if an agreement can be reached that will accommodate the needs of the child and the other parties involved.
(e) Reach a mutually acceptable agreement.

2.3     Forms of agreement:

In using dispute resolution processes parties may agree:

(a) To trial options and to access information and services.
(b) That there is a need for the medical procedure in question.

Note: An agreement among the participants may not remove the requirement for the Court to determine the appropriateness of and to authorise the medical procedure proposed (eg the sterilisation of an intellectually disabled child).

2.4     Voluntary and court ordered dispute resolution:

Intending applicants are encouraged to participate in dispute resolution processes prior to the filing of an application. Applicants may also voluntarily seek to participate in dispute resolution processes after the filing of an application. The Court may also, as appropriate, order applicants to participate in one of the Court's primary dispute resolution processes after the filing of an application.

2.5     Participants in dispute resolution:

Participants in dispute resolution processes may include the following:

(a) Parents, persons with a parenting order in relation to the child, carers and/or their legal representatives;
(b) The child;
(c) A representative from the Department of Communities or nominated Authority;
(d) The child's representative;
(e) Family Court Mediator or contracted Mediator;
(f) Family Court Registrar; and
(g) Any other interested party (eg a relative, medical practitioner or other professional who works with the child).

2.6     Dispute resolution:

Available dispute resolution processes include:

(a) Mediation at the Family Court which may be ordered by the Court after the filing of an application;
(b) A conciliation conference at the Family Court involving a Registrar, which is available after the filing of an application;
(c) A Legal Aid conference which may be arranged prior to or after the filing of an application; and
(d) A case conference which may be arranged by the Department of Communities prior to the filing of an application.

2.7     Mediation:

Mediation can assist intending applicants to talk about the issues facing them and their child. Court mediators can help intending applicants work through problems confronting their family that have led them to consider consenting to a significant medical procedure or refusing to consent to a significant and recommended medical procedure.

2.8     Conciliation conference:

A conciliation conference is usually ordered on the first court date. All parties to the proceeding may attend and the conference will be chaired by a Registrar/Deputy Registrar of the Court, who may be assisted, as appropriate, by other Court staff, including a Court Mediator. The primary aim of the conference is to determine if it is appropriate for other options to be tested, which are less intrusive to the child. If parties do not agree to test other options then the purpose of the conference is to identify issues in dispute.

2.9     Legal Aid conference:

Legal Aid Queensland can arrange a conference which aims to provide an opportunity for an agreement to be reached about the issues involved in the matter. The conference is based on a mediation process and may be chaired by a Lawyer and Social Worker with appropriate training and experience. If all parties agree, all issues raised at the conference can be submitted to the Family Court if the application proceeds to the Court. All interested parties may attend the Legal Aid conference, including parents, a representative from the Department of Communities and the child's representative, if appointed.

2.10    Case Conference:

The Queensland Department of Communities can arrange a meeting to discuss issues and identify options. The Department may arrange for an independent Mediator to assist at the meeting.


3.1     Process for filing a medical procedure application

3.2     Persons able to make a Medical Procedure Application:

The following persons may make a medical procedure application:

(a) a parent of the child;
(b) a person who has a court order in relation to the child;
(c) the child;
(d) the child representative; and
(e) any other person concerned with the care, welfare and development of the child.

If a parent of the child or a person with court orders in relation to the child are not making the application, they must be named as a respondent to the application.

3.2     Necessary documentation:

In order to make a medical procedure application, the applicant must file a Form 1 and an original or a certified copy of the child's birth certificate at a Family Court registry.

The Court will require evidence that the proposed medical procedure is in the best interests of the child. This evidence must include evidence from a medical, psychological or other relevant expert witness and may be given in the form of an Affidavit or, with the court's permission, orally.


4.1     Procedure after the filing of an Application

4.2     Listing arrangements:

Medical procedure applications are to be referred to a Registrar to ensure that Division 4.2.3 of the Family Law Rules is adhered to.

Upon the filing of the application, the Registry Manager, or delegate, in consultation with the Registrar must fix a date for a hearing before a Judge. The date fixed must be as soon as possible after the date of filing and, if practical, within 14 days after the date of filing.

4.3     Mediation before procedure hearing:

Where appropriate, the Court will make an order for the applicants and other relevant parties to attend mediation prior to the first return date of the application.

4.4     Advice as to mediation:

If an order is made for mediation, parties will be informed of the time and date of the conference by a standard letter from the Manager of Mediation.

4.5     First court date:

On the first court date, the Court must:

(a) make procedural orders for the conduct of the case and adjourn the case to a fixed date of hearing; or
(b) hear and determine the application.

In making procedural orders, the court may:

(a) appoint a child representative for the child;
(b) order that the parties participate in a conciliation conference or other appropriate primary dispute resolution procedures.

4.6     Adjournment when a child representative appointed:

When a child representative is appointed for the child the application is to be adjourned to a mention date no later than eight weeks after the date of the order for the appointment of the child representative.

4.7     Legal Aid Queensland to arrange child representative:

Legal Aid Queensland will appoint the child representative who will be a Family Law Solicitor employed by Legal Aid Queensland, or a private Solicitor who has extensive experience in acting as a child representative. Legal Aid Queensland will normally meet the costs of providing a child representative if appointed by the Court.

4.8     Role of the child representative:

The child representative will:

(a) be provided with all relevant documents on the Court file;
(b) ensure that a critical investigation and exploration of all expert evidence occurs;
(c) contact the Department of Communities, or nominated Authority, to seek information and advice, where appropriate, to:

Establish whether all alternative and/or less invasive options have been addressed in the material filed with the Court.
Identify alternative and/or less invasive options and provide advice on less restrictive alternatives to the proposed procedure that will promote the welfare and best interests of the child.
Ensure that appropriate expert/s or agencies provide reports/evidence.
Ensure that published decisions, research articles or other relevant information which may assist the Court in determining the application is presented.

(d) Where appropriate, file all relevant material indicating what options are available and the advantages and disadvantages for the child of each option;
(e) Ensure that the child's views are properly put before the Court;
(f) Establish whether:

the child can give informed consent to the proposed procedure;
the child's decision making capacity could improve to such an extent that an informed consent could be given in the future;
the proposed procedure can be postponed to a date in the future when an informed consent may be obtained from the child.

(g) make submissions regarding the case management of the case; and
(h) indicate any orders sought on behalf of the child.

4.9 Subsequent mention date:

At the subsequent mention date the child representative may make submissions with respect to the case management of the case. Consideration should also be given at such time to:

(a) the ordering of a conciliation conference with either a Registrar or Court Mediator or the ordering of other appropriate primary dispute resolution procedures;
(b) the appointment of a Court expert, pursuant to Division 15.5.2 of the Family Law Rules;
(c) the holding of a conference of experts, pursuant to Rule 15.69 of the Family Law Rules.

4.10 Role of the Department of Communities:

After the filing of an application the Department of Communities, or nominated Authority, may assist in obtaining relevant expert reports required to aid the Court in determining the application and may attend the Court hearing and be available to provide information relevant to the application.

Practice Direction 2004/9, 17 March 2004, issued by 
the Hon. Chief Justice Alastair Nicholson AO RFD