A salutary lesson for litigants is that whilst they are entitled to bring an action before the Court and have the Court answer a question, the answer or answers provided by the Court may not be the answer or answers desired by the litigant; or any of the litigants for that matter.

In Talbot & Norman [2012] FamCA 96 (24 February 2012) Murphy J found himself confronted by a couple of unrepresented single parents who were in dispute over the prospect of Miss Sixteen aborting the child she was bearing. The Application was brought by the Father and he sought injunctive relief amongst his remedies. Ultimately the application of the Father was unsuccessful.

In arriving at his decision Murphy J made the following findings:
- The Family Court of Australia has power to make orders pursuant to Part VII of the Act in respect of ex-nuptial children in Queensland.
- There is “no common law right” of the husband or father which would enable him to force his wife or the mother to carry a child to term.
- At common law the unborn child has no right to protection against abortion.
- Accordingly there is no right that the husband or father may enforce on behalf of the child.
- 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.
- The word “child” as used in the Family Law Act means a child once born.
- The Family Court of Australia does not have jurisdiction to make orders with respect to an ex-nuptial child in circumstances where the orders are directed toward a foetus.
- The jurisdiction of the Family Court of Australia in respect of ex-nuptial children extends only to ex-nuptial children once born.

These unrepresented single parents have asked the Court to decide a very significant question. This decision will remain good law until a subsequent Court rules otherwise. That is another salutary lesson for litigants.

"You can't always get what you want, but if you try sometimes, you just might find, you get what you need"

Ross Bowler LLB
 


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