Childbearing expenses, also known as childbirth maintenance, is a little known entitlement claimable by a mother who is not married to or living with, the father of a child in the period just before or after the child’s birth. The father of the child is liable to make “proper contribution” towards the maintenance of the mother and the reasonable medical expenses incurred in relation to the pregnancy and birth. If the mother or child dies as a result of the pregnancy or birth, the father is also liable to make a proper contribution towards funeral expenses.
Childbirth maintenance period
The father’s liability does not last the entire pregnancy and is limited to a period called the childbirth maintenance period. That period starts on the earlier of:
- Two months prior to the due date of the child’s birth; or
- The date the mother ceases work IF she had been working during the pregnancy AND a medical practitioner advises her that she should stop working for medical reasons directly related to the pregnancy.
The minimum childbirth maintenance period is about five months but could be longer depending on the mother’s medical circumstances.
The father’s contribution
When deciding what contribution the father should make, the court will take into account:
- The income, earning capacity and assets of both parents;
- The necessary expenditure of both parents to support themselves and any other person they have a duty to maintain (for example, other children); and
- Any special circumstances of the parents that it would be unjust not to take into account.
The court cannot take into account a mother’s entitlements to an income-tested pension, allowance or benefit – which is most Centrelink payments – when considering the mother’s income. This means that if a mother’s sole income is a pension payment, her income will be considered to be zero. However, if the mother receives a private maternity leave payment from her employer, this will be included as income of the mother.
Orders court can make
The court has broad powers to make orders about childbirth maintenance and can make orders for regular payments to be made to the mother (eg. weekly or fortnightly), or a lump-sum payment. The mother should expect to be required to provide receipts for any specific items of expenditure, such as payment for doctor’s visits, and understand that the court will only consider amounts after any Medicare or private health rebates have been applied.
Applications to the court for childbirth maintenance are rare, probably due to the very specific circumstances that need to exist to make an application possible – that is, that the mother and father are not married, and are living separately in the childbirth maintenance period. Interestingly, the requirement for the mother and father to be unmarried creates the unusual situation that a married woman who separates from her husband prior to the childbirth maintenance period, cannot make a claim for childbirth maintenance, simply because the parties are married.
In cases that have been decided by the courts, fathers have generally been ordered to pay at least part of the mother’s reasonable medical expenses, and sometimes part of the mother’s loss of income during the pregnancy.
If a mother wishes to make an application for childbirth maintenance, she must do so with 12 months of the birth of the child, and will only be granted an extension of time if the court is satisfied that there would be hardship to the mother or child if an extension was not allowed.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.