Who pays birth expenses?

Almost hidden amongst the 698 sections of the Family Law Act are six little used sections on the father’s liability to contribute towards the child bearing expenses (including wages and medical expenses) if he is not married to the mother of the child.

I say little used as in a database search I could only find 3 reported cases that dealt with the issue at all – and none on this issue specifically.

However, a recent case from the Federal Circuit Court has served as a reminder of the potential of this small part of the Act. The case is Abrahams and Simm [2014].

In that matter the mother made an application to the Court for “childbirth maintenance” in relation to a child who was born in 2012.  The parties separated prior to the birth of the child.

The mother sought a total of $27,061, being $15,610 for maintenance for her and $11,451 being medical expenses in relation to the pregnancy and birth. The mother submitted that she had properly identified and particularised the costs associated with the pregnancy and birth of the child. She further submitted that the costs and expenses claimed were reasonable in all the circumstances.

The father acknowledged that he was the father of the child and proposed that he pay the mother the sum of $7,000. The father also sought that the mother pay his legal costs for the matter. The father submitted that the mother’s evidence was lacking in justifying all of the items claimed (e.g. there were no pay slips), not all of the items claimed were reasonable, his uncommitted income did not enable him to pay and he should be responsible for half of the expenses properly assessed not the whole amount.  The father also claimed that the mother’s entitled to the “Baby Bonus” should be factored in.

The Court ordered that the father pay the mother the sum of $14,000.

The Court found that a number of the medical expenses claimed by the mother were not reasonable, including a “doula” and a “settling swing”. Additionally, the Court agreed with the father that he should not have to pay for the total of the expenses – only half. The Court rejected the father’s claim that the mother’s entitlement to government benefits, including the “Baby Bonus” should be taken into account. This is in line with section 67C of the Family Law Act which expressly states that the Court must disregard any such entitlement.   

It will be interesting to see if more cases appear relying on these sections.

 

Of note, there is also scant cases on obligations to pay child birth expenses for people who are married and separated (which are covered by other parts of the Family Law Act).