Childbearing Expenses

Most people are familiar with concepts such as child support and child maintenance, where a parent provides financially for the care of their child. It is less well known that in Australia a birth mother can also claim a ‘proper contribution’ from the father of her child for her own maintenance and reasonable medical expenses during part of her pregnancy. At the end of a pregnancy and immediately after the birth, a mother who is not married to (or cohabitating with) the father of the child is entitled to ‘childbirth maintenance’ or ‘childbearing expenses’.

Childbearing expenses

Raising a child is expensive, but there are also significant costs associated with bearing the child in the first place. The Family Law Act 1975 recognises that both parents should contribute not only to the costs of raising a child but also the costs that the mother incurs while pregnant, during the birth and immediately following the birth. Currently, the Act only refers to ‘the mother’ and ‘the father’ in relation to childbearing expenses. This provision therefore does not currently extend to same-sex couples.

A birth parent may find it difficult or impossible to financially support herself at the end of her pregnancy and immediately after the birth, especially if she is not able to obtain medical clearance to continue working. In those cases, the birth parent can apply to the Federal Circuit and Family Court of Australia for an order that requires the father to contribute to her living expenses during this period.

In order to be eligible for childbearing maintenance, the birth parent must be able to prove that the respondent (that is, the person who is being asked to pay the maintenance) is actually the father of the child. It is sufficient proof if the father has already signed the birth certificate or signed a declaration acknowledging that he is the father. Otherwise, the mother must establish paternity through some other means. This is obviously more difficult to do prior to the birth of the child.

Childbirth maintenance applications are quite unusual, because of the specific required criteria. In order to qualify for childbearing expenses, the mother and father must live separately and cannot be married during the maintenance period. This means that if a birth parent separates from their spouse prior to the maintenance period, she cannot claim childbirth maintenance because she is still officially married.

Childbirth maintenance period

A father’s liability to support the birth parent is not exhaustive: it is limited to the period known as the ‘childbirth maintenance period’. The period is a minimum of five months but might be longer depending on the specific pregnancy. It starts on the earlier instance of either:

• Two months before the predicted due date of the birth; or
• The day when the mother ceased to work if she was working during her pregnancy, and if she was advised by a medical practitioner to stop working for pregnancy-related medical reasons.

Father’s contribution

The court will consider several factors when deciding on the amount for the father’s contribution to childbearing expenses. The court will take into account the:

• income, assets and earning capacity of both parents;
• the existing necessary expenses of each parent and their dependents; and
• any special circumstances that would be unjust to ignore.

Any employer-provided maternity leave payment is included in the calculation of the income of the birth parent. However, when the court assesses the birth parent’s income, it cannot count any entitlement to income-tested government allowance, pension or benefit. For example, if the mother’s sole income is a disability support pension, the court will consider her income at zero for the purposes of calculating the father’s childbearing support contribution.

The father is also financially liable to make a proper contribution towards funeral expenses in the event that a mother or baby passes away during the pregnancy or birth.

Reasonable expenses

The definition of childbearing expenses is broad enough to encompass the costs of items and services that are ‘reasonably’ necessary for the care of a child, such as nappies, nursery furniture, baby clothes, car seat and baby formula. What is reasonable depends on the individual circumstances. For example, it may be unreasonable for a mother to spend $50 on a designer item for the infant when a $10 item would suit the purpose. When a mother makes a claim for childbearing expenses, she should consider whether the item or service was necessary, whether it was the best value for money, and whether she could have paid for it if she was in the same financial position she was in before she became pregnant.

The court can order a father to pay childbirth maintenance as either a regular payment (such as weekly or monthly), or as a lump sum. Generally, the court orders fathers to pay at least a part of the mother’s loss of income and reasonable medical expenses during her pregnancy. In most cases, the birth parent will need to provide evidence of specific expenditures, such as receipts from doctor’s visits. Only out-of-pocket expenses are eligible for refund, after the application of Medicare and any private health insurance rebates.

Time limits

There is a timeframe for a birth parent to make an application for childbearing expenses. Applications for childbirth maintenance must be made within 12 months of the child’s birth unless the court grants an extension of time on the ground that the mother or child will otherwise experience unreasonable hardship.

For advice or representation on any legal matter, please get in touch with the team at Go To Court Lawyers on 1300 636 846.