Marino Law | Gold Coast Law Firm

Unborn Children – When Can Family Law Intervene?

Unborn children Family LawIt is not uncommon for Family Lawyers to be consulted by prospective parents, seeking guidance as to their rights regarding an unborn child.  Often relationships break down prior to the birth of a child and there is disagreement between the parents as to important decisions including medical intervention.

The Family Law Act 1975 (Cth) (the ‘Act”) tells us that in accordance with section 65C, a parent of a “child” is able to seek the Court’s assistance in determining the care and parenting arrangements by making an application to the Court for parenting orders.

Under the Act, the definition of “child” does not include the term foetus, unborn child or any other word referring to a child in uteri. Whilst the Act is silent, case law indicates that the definition of “child” within the Act does not include an unborn child.

In Australia there are two relevant cases regarding the ability to make Orders regarding an unborn child.

In 1988 the Family Court decided the case of Re F (In Utero) which concerned a pregnant mother who had mental health difficulties and a “nomadic” lifestyle.  Even in these arguably concerning circumstances the Court held that it had no jurisdiction to make Orders which prohibited the mother from indulging in a lifestyle harmful to the foetus.

Secondly, in the case of Marriage of F and F (1989) FamCA 41 (12 July 1989), His Honour Judge Lindenmayer dismissed a husband’s application for an injunction restraining his wife from having an abortion. In his reasons, His Honour states:

“…the fact the foetus must grow within the wife’s body, not the husband’s, cannot, in my opinion, be overlooked. To grant the injunction would be to compel the wife to do something in relation to her own body which she does not wish to do. That would be an interference with her freedom to decide her own destiny”.

His Honour further states: 

“Whilst it may be said that to refuse the injunction will permit the wife to interfere with the destiny of the intended child, I have already held that the unborn child has no legal right to be born which this court can protect”.

Family Law cases have confirmed that at this stage the Court’s position is that when balancing an individual’s right to liberty and the rights of the unborn child, the individual’s right to autonomous decision making is paramount in a Family Law context.

Whilst there is limited action that can be taken by a father during pregnancy, as soon as the child is born, an application to the Court can be made. What Orders the Court makes in the circumstances is determined by careful consideration as to what is in the child’s best interests. The primary factors of consideration are outlined in section 60CC and include the benefit of a child having a meaningful relationship with both parents and the need for protection from harm.

Whilst the Court cannot intervene and make Orders regarding the management of pregnancy, the Family Law Court does have jurisdiction to make Orders for financial support of a pregnant mother.  Such an Order can also extend to the immediate post-natal period.  Such an Order can require the father to make a “proper contribution” towards:

  • Maintenance of the mother for the childbirth maintenance period in relation to the birth of the child;
  • The mother’s reasonable medical expenses in relation to the pregnancy and birth;
  • If the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother’s funeral; and
  • If the child is still born or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

The relevant “childbirth maintenance period” is the period that begins:

  • If the mother is working and told to stop working for medical reasons related to the pregnancy and the date she stops working is more than two months before the child is due to be born – on the day she stops working; or
  • In any other case, on the day that is two months before the child is due to be born.

The childbirth maintenance period ends three months after the date that the child is born.

When considering such an application, the Court must consider the financial circumstances of both the mother and the father and must make orders that are proper in all of the circumstances.

Strict time limits apply to such an application and they must be made before the expiration of 12 months after the date of the child’s birth.

Marino Law can provide expert advice regarding parenting matters including advice prior to the birth of a child (in order to be prepared for any urgent steps) and for pregnancy expenses.  As strict time limits apply, it is imperative to obtain advice without delay.  Should you require assistance in any of the above areas, please contact one of our highly experienced family lawyers today.





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