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Termination of pregnancy – A mother or a father’s choice? The Court decides

Wednesday, 4 April 2012

In the recent case of Talbot & Norman [2012] FamCA 96, the Honourable Justice Murphy ruled that the Family Court does not have the power to order that a mother not terminate her unborn child and carry her pregnancy to term, at the request of the father.

The father, Mr Talbot, filed an urgent application to the Family Court for an injunction to restrain the mother, Ms Norman, from terminating her pregnancy.  The unmarried parties appeared before Justice Murphy in Brisbane, where it was heard that following a brief relationship together, Ms Norman was 13 weeks pregnant with Mr Talbot’s child.

Ms Norman indicated to the Court that she did not intend to terminate the pregnancy and obliged his Honour’s request of her to give sworn evidence to such effect.  His Honour ruled that in light of Ms Normans evidence, there was no factual foundation for the injunction and dismissed the application.

In his judgment, Justice Murphy set out clearly that the Family Court does not, in any event, have the jurisdiction or the power to grant an order to prevent a mother from terminating a pregnancy.

In his reasoning, Justice Murphy confirmed that the Family Court has the power to grant an injunction for the personal protection of a child pursuant to the Family Law Act [1] (the Act) and that these powers extend to the making of orders in respect of “ex-nuptial children” in Queensland [2], a power which was conferred to the Commonwealth by the State of Queensland [3].  ‘Ex-nuptial’ is the term applied to children born outside of marriage.

Is an unborn child, a “child”?

Justice Murphy reasoned that to determine if the Family Court has the power to make the orders sought is dependent upon there being a “child” in respect of whom the jurisdiction applies.   His Honour looked to previous cases to determine the meaning of the word “child”.  His Honour stated that if it was found that there was, by definition, a “child” to this proceeding, the Family Law Court would then have the power to make an order to prevent the mother from terminating the “child”.

In the case, In the Marriage of F (1989) FLC 92-031 the Court denied the application of a husband to prevent his wife from having an abortion.  The Court ruled there was no common law right of a husband to force his wife to carry a pregnancy to term and that a foetus has no common law right that could be enforced by the husband.  Justice Lindemayer referred to the decision of Williams J in the Supreme Court of Queensland K v T [1983] 1 Qd R 396 that “a foetus has no legal personality and cannot have a right of its own until it is born and has a separate existence from its mother” [4], which was upheld by Chief Justice Gibbs of the High Court of Australia.

Justice Murphy agreed that the word “child”, as stated in the Act, means a child once born.  In this case, the injunction sought by Mr Talbot was in respect of a foetus, or, a child not yet born.  His Honour said, “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 towards 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” [5].

It is the decision of this Court...

Justice Murphy made comment that a court unlike the Family Court may have the power to grant such an application, but the Family Court does not. The Honourable Justice Murphy makes clear in this case that it has long been established that the Family Court's jurisdiction does not extend to making orders in respect of a child not yet born, stating “there is ‘no common law right’ of a husband which would enable him to force his wife to carry a child to term” [6].

Take Note: Publication of the judgment by the Court was done so under the pseudonym Talbot & Norman.

Anna Stock
Junior Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.

[1] S68B(1)(a) The Family Law Act 1975 (Cth)

[2] S69ZE The Family Law Act 1975 (Cth)

[3] Commonwealth Powers (Family Law – Children) Act 1990 (Qld).

[4] At 401.

[5] At 41.

[6] At 25.

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