So, we’re separated and I’m going to have a baby (and I can’t afford it)….
Sometimes after separation, if one party is pregnant, the financial burden can be heavy. The pregnant spouse may be unable to work for a period, and will probably have lots of other medical expenses to do with 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.
Importantly, 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.
If there is no agreement about the payment of child birth expenses and maintenance, 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.
Any expenses must be able to be clearly demonstrated – so regardless of whether you are claiming nappies, formula or something larger like the hospital costs, it is important to 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.
If an agreement can be reached between the parents, you can formalise it in the form of Consent Orders by lodging an Application for Consent Orders with the Court. 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 Abrahams and Simm there was some limited discussion in relation to reasonable expenses, and in particular, that a birthing Doula was not a reasonable expense in the circumstances. 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.