So, we’re separated and I’m going to have a baby (and I can’t afford it)….
There is a huge financial burden if after a separation, one party is pregnant and is unable to work for a period of time. There are also a lot of other medical expenses that the pregnant spouse will have to deal with during the time of pregnancy and after the birth.
Section 67B of the Family Law Act provides that Fathers may be required to contribute to the costs of their former spouse during pregnancy. It is important to note that this provision does not apply where the parties were married – only where the parents are not married. The possible costs that the Fathers may be asked to pay, include:
- Maintenance of the mother for the period between when the mother is advised to stop working for medical reasons due to the pregnancy, or 2 months prior to the child’s birth, until 3 months after the child is born;
- The reasonable medical expenses in relation to pregnancy and birth;
- If the mother dies during or as a result of the birth, the funeral expenses; or
- If the child is stillborn or dies during or as a result of the birth, the funeral expenses of the child’s funeral.
If an application is made for the father to pay birth expenses, the Court is required to consider a number of factors, including:
- The income, earning capacity, property and financial resources of both mother and father;
- The commitments of each of the mother and father to support themselves or any other child or person they financially support and
- Any special circumstances which might result in injustice or undue hardship.
However, the Court must disregard the entitlement of any income tested pension, allowance or benefit.
In the case of child birth expenses and maintenance, if there is no agreement between both parties, an application needs to be made to the Federal Circuit Court for an Order about the payment. The Application must be made within 12 months of the child’s birth, and if paternity is disputed, you may need to establish paternity first.
It is important that all expenses incurred is clearly demonstrated whether you are claiming nappies, formula or something larger like the hospital costs. You must be able to produce receipts, quotes and invoices, and demonstrate that the item or service was necessary because of the pregnancy, and that it was reasonable in the circumstances.
To formalize an agreement between the parents, you may proceed in the form of Consent Orders by lodging an Application for Consent Orders with the Court. On the other hand, if no agreement can be reached, you will need to file an Initiating Application, Affidavit, and Financial Statement with the Court. Once you have filed your documents, it will be necessary to serve them on the other party, who then have the ability to file a response.
The Court in Millar and Johnston found that where expenses were properly items that would ordinarily be covered by child support, they were excluded as child birth expenses.
In circumstances where the court had to consider issues of reasonable expenses, we look at Abrahams and Simm where a birthing Doula was not considered a reasonable expense. However, much may turn on the evidence that is presented to the Court. Additionally, the Court made it clear that the baby bonus was irrelevant for the calculation of expenses and costs.