News

Childbirth maintenance – an often overlooked section of the Family Law Act

Ed Clark

It is not widely known that the Family Law Act 1975 (Cth) (“the Act”) makes provision for a Mother to claim ‘childbirth maintenance’ if she and the Father of the child are not living together in the period leading up to the birth of the child.

The relevant law for child-bearing expenses is set out under section 67B of the Act, which provides that the Father of a child who is not married to the child’s Mother can be liable to contribute towards:

  • The maintenance of the Mother for the childbirth maintenance period in relation to the birth of the child, and 
  • To the Mother’s reasonable medical expenses. 

The section also provides that in determining the contribution that should be made by the Father, the court must take into account the following matters:

  • The income, earning capacity, property and financial resources of the mother and the father of the child (disregarding any entitlement of the Mother to an income tested pension, allowance or benefit);
  • The commitments of each of those persons that are necessary to enable the person to support himself or herself; or any other child or another person that the person has a duty to maintain;
  • Any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

Under section 4(1) of the Act, the ‘childbirth maintenance period’ can begin on various different dates depending on the mother’s circumstances.  If the Mother works in paid employment and is advised by her doctor to stop working for medical reasons related to her pregnancy; and stops work on the basis of that advice more than two months before the child is due to be born, the period begins on the day she stops working.  In any other case, the period begins on the day that is two months before the child is due to be born.

There are very few reported cases dealing with childbirth maintenance, and as such there is little guidance as to how a Court is to calculate any amount payable.  

Harper & Pint [2011] FamCA 771 related to a property settlement between parties in a De Facto relationship where the Mother also sought payment of the sum of $5,000 by way of childbirth expenses.  The Court found that the Mother’s application for childbirth expenses was in fact more in relation to her day to day living expenses.  The Court also held that the Father did not have the capacity to make a contribution towards the Mother’s childbirth expenses. The Mother’s application for childbirth expenses was therefore dismissed. 

In MJ & JBD & Anor [2006] FamCA 419, as with Harper & Pint, the child birth expenses were only a small component of the overall applications before the Court.  The parties lived in the United Kingdom during the course of the relationship, and the child was born in the United Kingdom.  The Father moved to Australia after the relationship ceased. 

The mother suffered from complications arising from her pregnancy and was unable to work for the majority of the pregnancy.   She sought payment from the Father of the sum of $3,432.72, which was calculated on the basis of half of her loss of income converted into Australian dollars.  

The Court took issue with the Mother’s claim for loss of income for a period in excess of the childbearing period as defined in the Act.  It calculated that the Mother’s loss of income for that period converted into Australian dollars totalled $5,176.16. It held that the Father should be liable for half of this amount, being $2,288. 

In Hampton & Temple [2012] FamCA 681, childbirth maintenance was the sole issue for the court to determine.  The Mother sought maintenance of approximately $19,000 for a period of four months, having been advised by her doctor to cease work.  The sum claimed related to loss of income only, as the Mother did not claim her medical expenses. 

The Father admitted paternity of the child but sought to limit his liability to two months based on his capacity to pay.  The Father earned approximately $98,000 per annum and asserted that he spent the whole of that sum on his various expenses, including child support for other dependents.  

The court was satisfied that the Father had a strong income earning capacity, and as such had the capacity to pay the sum of $200 per week for the four month period.  The Father was therefore ordered to pay the sum of $3,200 to the Mother within 28 days.  

A recent reported decision is that of Abrahams & Simm [2014] FCCA 67.  The Mother sought payment by the Father of $27,061, comprised of $15,610 relating to the childbirth maintenance period and $11,451 relating to the Mother’s medical expenses.  At the time of the hearing, the Father had already paid the sum of $2,200, and sought to limit any further payment by him to $7000. 

The Court found that a number of the medical expenses claimed by the Mother did not fall within the meaning of “reasonable medical expenses”, including private health insurance premiums paid by her over a period longer than the childbirth maintenance period, a birthing partner and a settling swing for the baby.   The Court also found that the Father should not have to contribute to the whole amount of the Mother’s costs and expenses, but rather should only contribute to half. 

The Court ordered the Father to pay to the Mother the sum of $14,000, comprised of $7,000 for the childbirth maintenance period and $7,000 reasonable medical expenses, within 30 days.  

With Kim Southey, Barrister