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