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What to expect when you’re expecting - What happens when your relationship breaks down before the birth of your child?

What to expect when you’re expecting – What happens when your relationship breaks down before the birth of your child?

Published on March 22, 2023 by Kristie JamesKristie James

As I prepare for the birth of my second child, I had a thought that the prospect of sleepless nights and the challenges of building Ikea flat pack furniture for the nursery whilst heavily pregnant with your partner are things you can prepare yourself for. But what about those things you don’t expect, like the breakdown of your relationship?

The Law

If separation takes place before your child is born, you may be asking yourself: what will our parenting relationship look like? Who will our child spend time with? What can I do about this now?

If you are an avid fan of Sex and the City (and I am and by admitting this perhaps also showing my age) you might be led to believe that before your child is born that you are able to put in place an Order about the time each of you spends with your child[1]. However, in Australia, this is not the case.

Section 65C of the Family Law Act gives the Court jurisdiction to be able to assist with the care and arrangements of a ‘child’ upon the application of parent, child, grandparent, or any other person concerned with the welfare or development of a child.

However, the term ‘child’ as defined by Section 4 of the Family Law Act does not include any reference to a foetus or unborn child.

The Court’s view

In the late 1980’s the Court was asked to intervene in two separate cases[2] involving the rights of an unborn child and, on both occasions, the Court declined to do so.

This means that whilst you may be able to informally negotiate a care arrangement between you and your estranged partner (by way of a Parenting Plan for example) before your child is born, there is no legal avenue by which you could formalise this agreement nor can you apply to the Court to make any Orders in the event you can’t agree.

What can I do? Financial support before the arrival of your little one

However, whilst at the current time you are not able to legally formalise the question of who your child will spend time with until they are born, there are avenues available to you should you need financial support during your pregnancy.

Pursuant to Section 67B of the Family Law Act the Family Court has jurisdiction to make an Order that, a father of a child who is not married to the child’s mother, make a proper contribution towards, amongst other things, maintenance of the mother for the childbirth maintenance period and the mother’s reasonable medical expenses in relationship the pregnancy and birth.[3]

The period of time or the ‘childbirth maintenance period’ that the financial support can be paid or received is two months before the child is due to be born, or if for medical reasons related to the pregnancy she is required to stop work more than two months before the child is born, the day she stops working. The childbirth maintenance period ends three months after the child is born.

The making of an Order under this Section of the Act is subject to a number of considerations by the Court.[4]

After the conclusion of the childbirth maintenance period, support for the benefit of the child can be obtained via the Child Support Agency.

They are here! Now what?

Once your child is born, and unless it is not appropriate,[5] Section 60i of the Family Law Act requires parties to make a genuine effort to resolve the care arrangements for your child by way of family dispute resolution and this would be where you need to start.

For some guidance on how to save money when resolving your family law dispute, see:

Giving up the pleasure of being able to use the bathroom alone is hard enough, as is becoming a parent. Let us help you navigate your family law matter by calling 4032 1700.

[1] For more myths about family law, see my article entitled ‘Fallacies in Family Law’ here:

[2] Re F (in utero) [1988] Fam 122 (CA) and In the Marriage of F and F (1989) FamCA 41.

[3] For a full list of costs that can be Orders see Section 67B of the Family Law Act 1975.

[4] See Section 67C of the Family Law Act.

[5] Family Law Act S60(i)(9)

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