Childbirth maintenance is a little-known and under-applied area of the Family Law Act that covers the last two months of pregnancy, or earlier if, because of the pregnancy, the mother’s doctor advises her to stop working.

Under the Family Law Act 1975 (Cth), the father of a child who is not married to the child’s mother is … liable to make a proper contribution towards:

(a)      the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and

(b)      the mother’s reasonable medical expenses in relation to the pregnancy and birth.

This relatively obscure part of the Act was the subject of Millar and Johnston [2015] FCCA 543. Ms Millar wanted Mr Johnston to pay for child costs like baby clothes, nappies and feeding bottles as well as her personal expenses like rent, bills, prenatal and antenatal vitamins. Mr Johnson claimed he’d already made some voluntary contributions and, because he lived on government benefits, couldn’t afford any more.

Judge Demack rejected Ms Millar’s claim for child costs but accepted her claim for personal expenses. As it turned out, Ms Millar didn’t claim any medical costs but probably would have been successful if she had.

After considering the income earning capacity, property and financial resources of both parties, and balancing that against their respective personal needs and the special circumstances of the case, Judge Demack estimated that Ms Millar’s childbirth maintenance costs were $7,871.80 and ordered both parties to pay half.  The cash payments Mr Johnston had already made were credited against his half.

This case shows the Court’s willingness to make orders under the   childbirth maintenance provisions, which allow mothers to enforce the father’s obligation to share the costs of a pregnancy. Interestingly, these provisions may also apply where a single mother conceives a child using donor genetic material. 

Nick Ellis - Lawyer
marshalls+dent