Does my baby's Father need to pay for my pregnancy costs even if we're not together?

 
As the mother you may be asking whether you have to pay for everything yourself or if you can get the father to help pay for things before the child is born.

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You are having a baby, the dad is not on the scene or refuses to financially assist you with the pregnancy - are they liable to help you out with the costs? 

Short answer, yes.

A biological Father is liable to financially help out with the costs of a pregnancy. 


If you’re pregnant and you separated before the baby was born, or if you separated before you found out you were even pregnant, or even if you were never married or weren’t even in a relationship! As the mother you may be asking whether you have to pay for everything yourself or if you can get the father to help pay for things before the child is born. And if you are the father you may be wondering what financial your obligations are. 

Well, there is Child Birth Maintenance (CBM). CBM is different and separate to child support or spousal maintenance AND can be paid before the child is even born! 

I’ll talk about 5 things in this article: 

  1. Who can apply and who is liable to contribute financially? 

  2. What if you don’t believe you are the biological father? 

  3. What type of expenses/costs does it covers; 

  4. When you can apply for it/you become liable to pay it; 

  5. What circumstances the Court takes into account when deciding whether it should be paid and what contribution should be made by the Father; 

  6. How you can apply. 

Who can apply and who is liable to contribute financially? 

The mother or the mother’s legal personal representative can apply. 

The father of a child who is not married to the child’s mother is liable to make proper financial contribution.  

The wording of the Family Law Act indicates that if you were married, then you would not be able to make application. 

What if you don’t believe you are the biological father? 

If a mother has made an application for or is asking for CBM and you do not believe that you are the biological father of the child, then you must undertake a DNA Parentage Test. 

What type of expenses/costs does it cover? 

CBM is provided for under Section 67B of the Family Law Act and the Father may be liable to make a proper contribution towards: 

  • The maintenance of the mother for the childbirth maintenance period, which is discussed below; 

  • The reasonable medical expenses incurred in relation to the pregnancy and birth of the child; and 

  • Any expenses in regard to the death of the child or mother if death occurs as a result of the birth or pregnancy. 

What does that include? Well, in the two cases I refer to below, the mother’s in those cases claimed the following types of expenses: 

  1. Lost wages; 

  2. Mortgage/rent payments; 

  3. Medical expenses such as ante-natal checks and obstetric requirements, medications etc.  

From the cases it seems that the court will not

  • Force a father to contribute 100% to the reasonable expenses and the cases suggest it is 50%.  

  • Allow unnecessary expenses such as all of the private health of the mother, a Doula birthing partner (Google it, I had to!) or for a “settling swing”. 

  • Take into account any Baby Bonus or other government allowance or benefit the mother may have received (because the Family Law Act specifically states that is not to be taken into account) 

When can you apply for it/you become liable to pay it 

Section 67G of the Family Law Act provides that you can apply for CBM at any time during the pregnancy or after the pregnancy – but within 12 months after the birth.  

If you make an application after 12 months after the birth of the child then you will need to seek leave of the court and the court will not allow you to proceed unless the refusal would cause you (or the child or any other person) hardship. 

You can only claim expenses during the ‘childbirth maintenance period’, which is defined in Section 4(1) of the Family Law Act to means  2 months prior to the mother finishing work/the child is born and ends 3 months after the birth of the child – that start time may be extended in certain circumstances such as if the mother has been advised by a medical practitioner to stop working for medical reasons relating to her pregnancy and she stops working after that advice. 

What circumstances the Court takes into account when deciding whether it should be paid and what contribution should be made by the Father 

Section 67C of the Family Law Act lists out certain matters that need to be taken into account such as: 

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

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

    • himself or herself; or 

    • any other child or another person that the person has a duty to maintain; 

  3. any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person. 

In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income. 

S67(3) provides that any government benefits that the mother may receive (including the baby bonus) is not to be taken into account. 

There are 2 cases I want to highlight on this subject which gives you some examples of when CBM has been ordered to be paid: 

  1. In MJ andJBD [2006] FamCA 419 the father was ordered to pay $2,288 by way of maintenance for the mother during the child birth maintenance period under s 67B – which was half of the mother’s reasonable costs. This case also involved child maintenance (as opposed to child support because of certain issues which the case goes into but which I won’t as it is not directly relevant to this article). The discussion about CBM starts at paragraph 136 of the judgement. This case was about a relationship in the UK and where the father was Australian and had relocated to Australia prior to the birth of the child. The relationship was only around 10 months in duration with the mother being 4 months pregnant at the time that they separated. The expenses the mother claimed in this case was for lost wages during the childbirth maintenance period. 

  1. In Abrahams v Simm [2014] FCCA 67 the father was ordered to pay $14,000 (on top of the $3,200 the father had already paid to the mother) by way of maintenance for the mother which represented 50% of her reasonable expenses. This was in addition to the child support that the father was assessed to pay and was paying following the birth of the child. This couple was in a de facto relationship for 18 months.  

When you don’t believe you are the biological father, what needs to occur 

If you deny that you are the biological father? Well, then there will need to be first a DNA parentage test obtained.  

How to apply 

First port of call for any matter which relates to children is always mediation. If you can come to an agreement then that is always best. 

If you cannot come to an agreement, then an application will need to be made to the Federal Circuit Court of Australia buy filing an Initiating Application seeking an Order for CBM, a supporting affidavit which details the expenses you are claiming and the mandatory form in all matters concerning children, a Notice of Risk. 


Where to from here? 

You are probably in one of three head spaces right now: 

  1. You liked the information, you found it interesting - but that’s all you wanted for now.

  2. This blog post resonated with you but you are just not ready yet to do anything and just want to look at more information about Family Law – I suggest you look at the other Free Information we have on our website which includes FAQ's as well as Helpful Links and Contacts that may come in handy.

  3. You are wanting more information about what you need to know after separation or you are ready to do something about your problem right now. If that is the case, then book an appointment with one of our Family Law solicitors by clicking here to make an online booking or why not start online!