Supreme Court allows woman's application to take and store sperm from dead fiance, who was killed at level crossing

A Brisbane Supreme Court judge granted an a woman's application to remove and store the sperm of her partner who was killed in a level crossing accident.

Justice Roslyn Atkinson, in a just published decision, granted Kelly Floyd's urgent application to remove sperm from her de facto husband, Troy Jarvis, who was killed by a train in Brisbane on the morning of July 12.

Justice Atkinson, in her six-page written order delivered "ex tempore'' last month, said Ms Floyd made the urgent application "orally by phone call'' to her associate within hours of Mr Jarvis's death.

"(Mr Jarvis) died this morning (July 12) in a level crossing accident when he was killed by a train and the application has to be heard and the procedure performed within 24 hours to be effective,'' she said.

"(Ms Floyd) was unable to appear in person because she is, unsurprisingly, in a state of extreme distress and lives in Ipswich. Accordingly I heard the application by telephone.''

It is understood, although it is not detailed in Justice Atkinson's decision, that Mr Jarvis was killed when he was struck by a train near Newman Rd at Geebung, on Brisbane's northside.

Justice Atkinson said because of the fact Mr Jarvis died in a "level crossing accident and so suffered a violent death'' the matter was a reportable death and had to be referred to the coroner under the Queensland Coroner's Act 2003.

"The coroner has informed me that should I make an order allowing the removal of the sperm, he will direct the (staff at Queensland Health's) John Tonge Centre, where the body is, to facilitate that happening,'' she said.

The emergency hearing was told Ms Floyd and Mr Jarvis had planned to marry at the end of this year after having just built a house together.

"(Ms Floyd) said that they (both she and Mr Jarvis) had constantly discussed having children and she had made an appointment with an obstetrician gynaecologist ... for 26 July 2011 'to go see about having a child','' Justice Atkinson said.

"She has the support in the application from the mother of (Mr Jarvis) and the rest of the family.''

The hearing was told all Mr Jarvis had ever wanted was a child of his own and decided to build the house first before starting a family.

Justice Atkinson said Ms Floyd, prior to the hearing, had been in contact with the Sunnybank Private Hospital - who indicated they were willing to perform the necessary procedure after any court order was made.

Justice Atkinson made formal orders authorising the removal of Mr Jarvis's sperm for storage pending any future application to the Supreme Court for the use of that sperm.

(Published by The Courier-Mail - August 3, 2011)

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