ADULT CHILD MAINTENANCE – ELIGIBILITY AND OBLIGATION TO PAY

The requirement to pay child support continues until the child turns 18 years of age or completes secondary school in the year they turn 18 years. After such a time financial support for a child is determined via the adult child maintenance provisions of the Family Law Act 1975.

When making an adult child maintenance order, Courts must consider whether the maintenance is necessary to enable the child to complete their education or is required due to a mental or physical disability suffered by the child.

The Court in establishing whether a child is entitled to adult child maintenance must consider the parents’ resources against the child’s actual and potential resources.

The Court will take into account the child’s necessary expenses such as accommodation, food and education expenses when making a maintenance order. The Court will also consider the child’s personal income and their earning capacity as in most cases it would not be reasonable to expect a child to be able to fully financially support themselves whilst studying full time or suffering from a disability where they may be incapable of working. When determining how much adult child maintenance a parent is required to pay, the Court will consider the income, earning capacity and financial resources of each parent, the level of financial support the parent requires to support themselves or any dependents and the direct and indirect costs incurred by the child living with them.

The Court can order a range of different ways for adult child maintenance to be paid including transfer of property, payment in periodic instalments or a lump sum payment. Parents may also be ordered to cover specific expenses on behalf of the child (e.g. course fees, insurance cover etc.). Where the payer has not been cooperative in the past in paying child support, a Court may be inclined to order a lump sum payment to be made. In most cases however, Courts have generally ordered periodic child maintenance payments akin to child support.

In the case of Charlton & Crosby [2010] FMCAfam 207 the mother was seeking an adult child maintenance order for her 18 year old child who had recently enrolled in a 6 year university double-degree course and was studying full time. The mother contended that the child was unable to work concurrently while completing his studies and was therefore completely financially dependent on her. The child lived permanently with the mother and was estranged from his father.

The Court found that it was expected that the mother and father should both contribute to the child’s education and it was necessary for the parents to provide the child with financial support as he could not fully support himself while competing his studies. The Court determined that because the child was estranged from his father, the father would not be able to support his child academically and he would not be able share in the child’s academic achievements. The Court found that the parents should both contribute to the child’s expenses but not in equal shares due to the estranged relationship between the father and the child. As a result, the father was ordered to pay 20% of the child’s expenses for the duration of his studies.

It is usually the case that parents will be required to fund an adult child’s primary tertiary qualification if their financial circumstances allow for this. In the case of disabled children, Courts are more inclined to order ongoing financial support and are required to disregard any pensions or allowances received by the child in determining the quantum of any payment.

The very nature of adult child maintenance is largely discretionary and requires close examination of the parties’ financial circumstances. Consulting with an expert family lawyer is recommended if you are seeking adult child maintenance on behalf of a child or if a claim has been made against you.

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