8 Apr 2014

Child support is not the only liability that is imposed on single parents. Under the Family Law Act 1975 (Cth) a father of a child who is not married to the mother could be found liable to pay costs to the mother. This is different to child support as it relates directly to the birth of the child and the duration of what is described as the ‘birth time period’, which is three months.

Section 67B of the Family Law Act 1975 (Cth) provides 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 during the childbirth maintenance period in relation to the birth of the child; and

·         the mother’s reasonable medical expenses associated with the pregnancy and birth; and

·         if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother’s funeral; and

·         if the child is stillborn, or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

While determining the contribution that should be made by the father of the child the court will take into account:

·         the income, earning capacity, property and financial resources of the mother and the father of the child;

·         commitments of each of those persons that are necessary to enable the person to support:

o   himself or herself; or

o   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.

 

Recent Case Example

 

Just how childbirth maintenance works was demonstrated in the recent case of Abrahams & Simm [2014] FCCA 67, where the mother of a child claimed $27,061 from the father, to whom she was not married.

 

The mother of the child claimed $15,610 dollars under s 67B(a) of the Act for maintenance and a further $11,451 under s 67B(b) for medical expenses. The court found that the father “should not have to bear all the costs and expenses claimed, but rather only half.” Furthermore, the court held that the costs of a birthing doula, private health insurance and a settling swing did not constitute reasonable ‘medical expenses’ and therefore were not recoverable.

 

Consequently, the father was ordered to pay a sum of $14,000 dollars, about half of the total claimed. The court did not take into account the $5,000 baby bonus that the mother received as this fell within an ‘allowance or benefit’ under s 67C(3) of the Act.

The way in which childbirth maintenance is decided is heavily dependant on the individual circumstances of the case. It is best to seek professional legal advice if you are looking to claim childbirth maintenance.  You should also be aware that proceedings for orders for the father to make childbirth maintenance payments must be commenced within 12 months of the birth of the child, or otherwise with the leave of the court.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office at reception@hhg.com.au or call us on 1800 609 945.

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