How Early Can a Parenting Order Be Made?

In family law matters, parenting orders play a crucial role in determining the living arrangements for children who have separated parents. Concern over parenting arrangements can even predate the birth of the child. It is not unusual for a prospective parent of an unborn child to seek legal advice about obtaining a parenting order. However, it is well established in Australia that the courts have no power to make parenting orders until the child is born. This article looks at how early a parenting order can be made and what legal steps can be taken during a pregnancy.

Can a parenting order be made for an unborn child? The Family Law Act 1975 specifies that a parent of a child can seek parenting orders from the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia).

The Family Law Act only refers to already born children and is silent on unborn children or foetus in uteri. The Australian courts have considered their authority to make parenting orders for unborn children and followed the example of the UK’s Court of Appeal ruling in Re F(In Utero) (1988), which found that the courts have no jurisdiction to make an unborn child a ward of the court, regardless of the lifestyle of the mother. In that case, a local health authority had concerns over a pregnant mother with mental health issues and a nomadic lifestyle. The Family Court of Australia ruled similarly in Marriage of F and F (1989), dismissing a husband’s application to restrain his wife from having an abortion. In summary, Judge Lindenmayer found that any injunction would be an interference with her freedom to decide her own destiny, and that the unborn child has no legal right to be born.

Australian law does not recognise an unborn child as a legal entity with rights that can be the subject of court orders. As such, the first point at which the court can intervene to make a parenting order is after the child is born and acquires legal status. Additionally, the court does not issue parenting orders for unborn children because of the uncertainty that surrounds pregnancy. Even given the sharp decrease in infant mortality over the last century, there is still no guarantee that a pregnancy will result in a live birth. The courts are always reluctant to make orders based on circumstances that have not yet materialised.

While the court will not make parenting orders before the birth, the parents can still take proactive steps and make a parenting agreement between themselves. Mediation can sometimes help parties draw up an agreement before the child arrives. This approach may

help resolve disputes and establish settled arrangements for after the birth. While not legally enforceable, the agreement can document negotiated matters such agreements about the child’s name, living arrangements and medical care. Family lawyers can provide advice on how to prepare for future disputes and protect parental rights.

What orders can be made before a child is born?

Although the courts cannot make parenting orders in relation to an unborn child, they can issue protection orders if there are concerns about the safety of the mother and unborn child due to family violence. While these are not parenting orders, they can offer the expectant mother protection from harm and may indirectly impact parental arrangements after the child is born.

The courts also have the jurisdiction to make orders for the financial support of a pregnant mother. This type of order can require the partner to make a proper contribution towards childbearing expenses during the pregnancy. This period stretches from two months before the expected birth (or the point at which the mother stops working for medical reasons) and ends three months after the child is born. Strict time limits apply to this type of application, as they must be made no more than 12 months after the child’s birth.

When should parenting orders be made? If a parent believes that disputes are likely to arise, they can apply for interim parenting orders shortly after the child is born. These interim orders are temporary arrangements that stay in place until the court makes a final order. The court can issue orders relating to the care, welfare and development of the infant. These orders can cover a range of issues in relation to the infant, including:

· living arrangements;

· time the baby spends with each parent and other significant people;

· significant decisions about medical treatment;

· parental responsibility to make decisions about care and upbringing;

· communication between the parents; and

· contact between the baby and other family members. When making any parenting order, the court’s primary consideration is always the best interests of the child, particularly the need to protect the child from any harm.

Go To Court Lawyers can provide advice prior to the birth of a child so that you can obtain parenting orders at the earliest stage. Alternatively, if you need help with applying for childbirth expenses, our team can help you apply within the statutory deadline. Please contact our team on 1300 636 846 for any legal assistance.