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29th March, 2020

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The Family Court has no power to make orders concerning unborn children

A decision by Justice Murphy of the Family Court in the case of Talbot v Norman has held that the Family Court has no power to make orders concerning unborn children, in particular, an order to restrain a mother from terminating a pregnancy.

This case involved the father, Mr Talbot filing an application for an urgent injunction that the 16 year old mother, Ms Norman be restrained from terminating a 13 week pregnancy. The couple were not married.

During the hearing, Ms Norman gave evidence that she was 13 weeks pregnant and that she did not intend to terminate the pregnancy. Based on the mother's sworn evidence the father's application was dismissed as there was "no factual foundation for the application".

In his Judgment, Justice Murphy explained that although there was no factual foundation for the application, in any event, the Family Court did not have the jurisdiction or power to make the orders with respect to an "unborn child".

His Honour acknowledged that under s 68B (1) (a) of the Family Law Act the Family Court has the power to grant an injunction for the personal protection of a "child", a power that also extended to ex-nuptial (unborn) children. His Honour noted that this was a matter concerning not a "child" but "a foetus, that is, a child not yet born".

In his reasoning, Justice Murphy considered the Judgements of other cases wherein similar injunctions had been sought.

His Honour referred to the case of In the Marriage of F wherein Justice Lindenmayer had dealt with a similar issue in respect of a married couple. In that case, it was found that the Court did have jurisdiction to order an injunction because of the matter being a matrimonial cause. However, it was held that an injunction would not be 'proper' in that case.

While a "matrimonial cause" could not be argued in this case, given the parties weren't married, His Honour acknowledged that even if the court did have jurisdiction there needed to be a "child" and this case involved an "unborn child".

His Honour agreed with Justice Lindenmayer's application of the principal from Paton v The British Pregnancy Advisory Service that there is no "common law right" of a husband enabling him to force his wife to carry a child to term.

His Honour also referred to the decision of Justice Williams in K v T wherein it was held that "a foetus has no legal personality and can not have a right of its own until it is born and has a separate existence from its mother".

Murphy J concluded his Judgment in saying:

" ... I am of the view that this Court does not have jurisdiction to make orders with respect to an ex-nuptial child in circumstances where the orders are directed toward a foetus. That is, in my view the jurisdiction of this Court in respect of ex-nuptial children extends only to ex-nuptial children once born."

Family Court has no power to make orders with respect to unborn children

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