Can Family Court Make An Order In Relation To An Unborn Child?

Family Court
03 Feb

Can Family Court Make An Order In Relation To An Unborn Child?

Q: Can Family Court Make An Order In Relation To An Unborn Child?

A: No! The Court is powerless to make orders prior to the birth of the child.

As a family lawyer, I often receive inquiries from soon to be fathers wanting to know their rights in relation to their unborn child. In a recent matter, the father gave instructions in relation to his partner’s pregnancy. The expected date of birth of the child was three weeks from the date I received instructions. The father had concerns about the mental state of the mother. She was abusive in his relationship with her. She also made threats of killing the child once the child was born. He had real concerns for the safety of the child and wanted orders taken out to protect his child. He wanted to know his rights in regard to his unborn child.

The Family Law in relation to an unborn child is fairly limited. There have only been a few cases dealing with unborn children. In a 1988 family law case, Maree F (in utero) the Judge expressed grave concerns about the mother’s mental health and her ability to properly care for her child and to care for the fetus while she was pregnant. Even though the Court had grave concerns for the welfare and protection of the child, the Court had to power or jurisdiction to make orders in regard to the wellbeing of the unborn child.

The definition of “child” in the Family Law Act does not make reference to an unborn child. The Family Court only has jurisdiction in relation to a child after the birth of the child.

Judge Lindenmeyer in the 1989 case of In the marriage of F. F held that the unborn child has no legal right to be born which the court could protect.

What is Section 60CC?

Section 60CC of the Family Law Act places the welfare of the child as the paramount consideration. The protection the child from harm is a paramount consideration. However, this relates to a child after birth.

Can the Court make orders to protect the child upon the birth of the child? In regard to the cases referred to the Court had no power to order injunctions restraining the mother of the unborn child from causing harm or risk to the fetus. The Court is powerless to make orders prior to the birth of the child.

Psychology Reports

There are a number of steps our client can take to protect his unborn child. If possible, he could obtain a report from a psychiatrist or psychologist who has been treating the mother for her mental illness which would hopefully indicate the concerns that our client has for his unborn child. He could then provide this report and other evidence of the mother’s health issues to the Department of Children’s Services and request that they intervene immediately upon the birth of the child and have the child placed in foster care.

Application To Court

Secondly, our client could prepare his application to the court seeking urgent orders being made in relation to the child upon the child’s birth. Evidence in support of the application should include all relevant evidence showing the mental state of the mother. If possible, such evidence should include reports from psychologists or psychiatrists in support of the application.

If the child is taken into foster care by the Department then our client can go through the process of applying for the child to be then placed into his care.

The application and supporting material would need to be prepared and filed immediately upon the birth of the child. An urgent request should be made to the Family Court to give an urgent hearing to the application.

These matters can complicate the path forward. Always choose an experienced family lawyer to ensure you have all the support you need.

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