Talbot and Norman

[2012] FamCA 96

FAMILY COURT OF AUSTRALIA

TALBOT & NORMAN [2012] FamCA 96

FAMILY LAW – CHILDREN – urgent Application for an injunction restraining the mother from terminating her pregnancy – whether the Court has jurisdiction – where mother gave evidence that she did not intend to terminate the pregnancy and there was thus no factual basis for the Application – whether the Court would, in any event, have jurisdiction to make the order sought – where parties are not married – where the Court has jurisdiction over ex-nuptial children in Queensland – whether a foetus is a “child” for the purposes of the Family Law Act 1975 – where no definition of “child” in the Act – whether the common law “born alive rule” prevails – where a foetus cannot be a child unless it is born alive.

Commonwealth Powers (Family Law – Children) Act 1990 (Qld)
Family Law Act 1975 (Cth)

Attorney General (Queensland); (Ex rel Kerr) v T (1983) 46 ALR 275
Barrett v Coroner’s Court of South Australia [2010] SASCFC 70
Barrett v Coroner’s Court of South Australia [2011] HCATrans 166
In the Marriage of F (1989) FLC 92-031
K v T [1983] 1Qd R 396
In Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365
PatonvThe British Pregnancy Advisory Service [1979] 1 QB 276
Re Iby (2005) 63 NSWLR 278

APPLICANT: Mr Talbot

RESPONDENT: Ms Norman

FILE NUMBER: BRC 1568 of 2012

DATE DELIVERED: 24 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 February 2012

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT:

1. The Initiating Application filed by the father on 23 February 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Talbot & Norman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1568 of 2012

Mr Talbot

Applicant

And

Ms Norman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Late yesterday afternoon, an Initiating Application was filed by Mr Talbot. That Application sought relief on an urgent basis in the following terms:

   1. Injunction – to stop [Ms Norman] aborting my child, as neither the baby or [Ms Norman] are unwell.

   2.        [Ms Norman] must not leave QLD whilst pregnant with my child. 

   3. All ultrasounds, blood tests or medical information regarding my baby to be sent to my via registered mail.

   4. I am to be informed when [Ms Norman] is in labour and that I may attend the hospital when the baby is being born.

   5. At the birth of our baby I am seeking full residency and sole responsibility of my child.

2. Those orders are contained in an Application drawn by a self-represented person.  The orders as just quoted appear as final orders sought.  The interim orders sought are expressed simply as:

   1.        Injunction order

   2.        Residency order.

3. I…