By Stephanie Wilkinson
A recent Federal Circuit Court of Australia decision has highlighted an area of the Family Law Act that few outside the family law fraternity know about, the liability for childbirth maintenance.
Section 67B of the Family Law Act outlines that the father of a child who is not married to the child’s mother is liable to make a proper contribution towards:
- The maintenance of the mother for the childbirth maintenance period;
- The reasonable medical expenses incurred in relation to the pregnancy and birth of the child; and
- Any expenses in regard to the death of the child or mother if death occurs as a result of the birth or pregnancy.
Childbirth Maintenance Period
The Family Law Act provides that the maintenance period will always cease 3 months after the birth of the child and will always begin on the day 2 months prior to the date that the child is due. This period may be extended if:
- The mother is employed; and
- The mother is advised by a medical practitioner that she should cease working for medical reasons directly related to the pregnancy; and
- The mother stops work prior to two months before the child is due.
Should these three conditions be met, the maintenance period will begin on the day the mother ceases work.
In proceedings for childbirth maintenance, a court will have regard to:
- The income, earning capacity, and property and financial resources of both the mother and father of the child;
- Commitments of the mother and father that are necessary in order to support themselves or any other child or person to whom they have a duty to maintain;
- Special circumstances of the parties that, if ignored, would cause injustice to any person.
When taking into account the first bullet point, the court will disregard any entitlements a mother may have to a pension, allowance or benefit. This is particularly relevant in the example below.
Abrahams v Simm  FCCA 67 was a recent case before the Federal Circuit Court of Australia that dealt with a childbirth maintenance application.
In this application, the Mother sought the sum of $27,061, which comprised of $15,610 for maintenance during the childbirth maintenance period, and $11,451 in regards to the reasonable medial expenses of the pregnancy and birth.
In his decision, Judge Neville excluded some of the claimed medical expenses, such as the expense for a Doula birthing partner and a settling swing. Judge Neville also partially excluded some of the claim for private health insurance cover. Judge Neville also excluded the “Baby Bonus” of $5,000 from being considered a financial resource of the mother for the purpose of assessment, as it is an allowance or benefit. The Father had also already paid a sum of $3200 by way of financial support.
Ultimately the court conceded that as a general proposition, the Father should be responsible for half of the costs and expenses. Taking into account the income, earning capacity and financial resources of both parties it was ordered that the Father was to pay $7,000 in relation to the maintenance of the Mother for the childbirth maintenance period, and a further $7,000 for reasonable medical expenses incurred as a result of the pregnancy and birth of the child.
Looking for Help?
The general principles in Abrahams v Simm should be thoroughly considered, however their implementation should not be considered typical. Personal circumstances weight heavily in a courts decision, and also in an individuals choice to mediate or litigate. The best person to advise you on how your personal circumstances and the law intersect is a lawyer.
Brisbane Divorce Lawyers at Best Wilson Buckley Family Law can provide you with current and relevant legal advice, taking into account your personal circumstances and the courts probable decision. For assistance, call Best Wilson Buckley Family Law on (07) 4639 0000 for our Toowoomba Office, or (07) 3210 0281 for our Family Lawyers Brisbane Offices.