In the recent case of Talbot & Norman [2012] FamCA 96 (“Re Talbot”), the Family Court held that it does not have the jurisdiction or power to restrain the mother of an unborn child from aborting that child.

Mr Talbot and Ms Norman had a short relationship and were never married. At the time of the hearing Ms Norman was approximately 13 weeks pregnant with Mr Talbot’s child. Mr Talbot filed urgent court proceedings in the Family Court seeking an injunction to restrain Ms Norman from aborting the child. Mr Talbot and Ms Norman were not legally represented.

The Family Court found that Mr Talbot’s application had no factual basis when Ms Norman gave evidence that she had no intention to terminate her pregnancy and his application was dismissed. Still, Justice Murphy went on to consider whether the Family Court had the power or jurisdiction to grant the injunction sought by Mr Talbot, and found that in the circumstances the Family Court had no such power.

The injunction sought by Mr Talbot was directed towards Ms Norman, but was in respect of the unborn child.

The parties never married

The fact that the parties had never married was very relevant. In a much earlier case, In the Marriage of F (1989) FLC 92-031 (“Re F”), the Family Court dealt with similar issues to those in Re Talbot, however, in Re F the parties were a married couple. It was held in Re F that the Family Court had jurisdiction to grant the injunction sought by the father, to restrain the mother from aborting the child, by reason of the fact that the parties were married and the issue in dispute between them was a “matrimonial cause”. However, the Family Court did not grant the injunction because it found that it was not “proper” to do so in all the circumstances of the case.

It could not be argued that there was a “matrimonial cause” in Re Talbot because the parties had never been married.

Unborn child

Accordingly, the jurisdiction of the Family Court in Re Talbot was dependent upon there being a child in respect of whom the Family Court has the power to make decisions. If the Family Court found that the unborn child was a “child” within the meaning of the Family Law Act, the Family Court would then have the power to make an order to prevent Ms Norman from aborting the child.

Justice Murphy held that the meaning of the word “child” in the Family Law Act means a child “once born” and does not extend to unborn children. Therefore, the Family Court did not have the power to grant the injunction sought by Mr Talbot. The Family Court proceedings were dismissed.

This article provides information that is general in nature and not a substitute for legal advice. Please contact the author if you wish to obtain legal advice for your personal situation.

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