A recent Federal Circuit Court of Australia decision has put the focus on ‘childbirth maintenance’ provisions of the Family Law Act 1975 (Cth) and its application to a father who is not married to the mother at the time of childbirth.
In this Alert, Special Counsel Alexandra Moles and Solicitor Fraser Bax explore the decision and how it serves as a timely reminder to fathers who think that the pain of childbirth is limited to women.
Key take away points
- The father of a child who is not married to the child’s mother could be found liable to make contributions toward the maintenance of the mother for the childbirth maintenance period and for the mother’s reasonable medical expenses in relation to the pregnancy and birth of the child.
- Government benefits the mother is to receive cannot be taken into account when determining the amount of the father’s contribution.
- Childbirth maintenance applications must be made within twelve months after the birth unless leave is granted by the court.
In Abrahams v Simm  FCCA 67 , Judge Neville ordered the father to pay a total of $14,000 to his former partner to cover her pregnancy and childbirth expenses. This case is one of the more detailed decisions on the issue of childbirth maintenance, however, the Family Law Act deals with this issue quite clearly.
Section 67B of the Family Law Act provides that the father of a child who is not married to the child’s mother is liable to contribute towards:
- the maintenance of the mother for the childbirth maintenance period (which is generally the period from two months before the child is due to be born to three months after the child’s birth) in relation to the birth of the child;
- the mother’s reasonable medical expenses in relation to the pregnancy and birth; and
- expenses relating to the death of the mother or child if they are a result of the pregnancy or birth.
Sections 67C(1) and(2) of the Family Law Act detail matters to which the court must have regard in assessing such applications, which include:
- the income, earning capacity, property and financial resources of the mother and father;
- the additional commitments of the mother and father that are necessary to enable them to support themselves or any other child or person that they have a duty to maintain; and
- the capacity of the mother or father to earn and derive income, including from assets under their control or held for their benefit that do not produce, but are capable of producing income.
In Abrahams v Simm, the mother and father were in a relationship for roughly 18 months. The mother initially sought $27,061 for her maintenance during the childbirth maintenance period and her reasonable medical expenses in relation to the pregnancy. Some of these expenses included a doula birthing partner, a settling swing and the mother’s private health insurance.
Despite the father’s assertion that he only had “uncommitted” income of $47 per week, ultimately, Judge Neville ruled that the father should be required to bear half of the “reasonable” costs and expenses claimed by the mother and with consideration given to section 67C(1) of the Family Law Act held that the father pay the amount of $7,000, being for maintenance of the mother for the childbirth maintenance period, within 30 days of the orders, and the further amount of $7,000, being for the reasonable medical expenses relating to the pregnancy and birth within 60 days of the orders.
Consistent with the treatment of other government benefits, Judge Neville found that the $5,000 “Baby Bonus” the mother was to receive could not be taken into account by the court when arriving at a figure due to section 67C(3) of the Family Law Act.
Overall, the result in Abrahams v Simm illustrates a clear application of the relevant sections of Family Law Act to the birth of a child between unmarried and separated former partners.
When dealing with childbirth maintenance applications it is important to be aware that an application must be made within twelve months after the birth unless leave is granted by the court.