What is Adult Child Maintenance?
What is Adult Child Maintenance and When is it Appropriate?
It is well known that parents have a responsibility to financially support their children. In Australia, ordinarily a parent’s obligation to pay child support ceases on the child’s 18th birthday. In reality, parents will recognise that they are increasingly having to financially support their child into the early years of adulthood. Many children continue to live at home and be financially dependent on their parents after their 18th birthday. In Australia, the obligation to financially support a child can continue beyond the age of 18 in certain circumstances. This is known as adult child maintenance. This article will explore the laws surrounding adult child maintenance in Australia, including when orders can be made for a parent to pay adult child maintenance and who can apply for adult child maintenance.
If you believe that your child qualifies for adult child maintenance, Doolan Wagner Family Lawyers can help you negotiate and formalize an agreement that includes this type of support.
Adult Child Maintenance v Child Support
Parents have an obligation to “maintain” their children until they reach the age of 18. This usually involves a parent providing the proper level of financial support to the other parent to help cover any necessary expenses of the child. The requirement to pay child support and the amount of child support payable can be determined by either:-
- A parent applying to Services Australia (Child Support) for an administrative assessment. The assessment uses a statutory formula to determine the amount of child support payable by a parent. The formula considers the parent’s respective incomes, the age of the child and the care arrangement of the child. The assessed amount of child support can therefore vary over time as those circumstances change.
- The parents entering into a child support agreement regarding the child support to be paid.
- A court order (in very limited circumstances).
Child support is only payable until the child reaches the age of 18 years of age (although this can be extended if the parents apply whilst the child is 17 years to extend the child support payments until the child’s final day of school if the child is attending secondary school on a full-time basis after turning 18). After this time the child support legislation is no longer applicable.
Any obligation by a parent to pay financial support in relation to a child after the child turns 18 years of age is called adult child maintenance. The liability to pay adult child maintenance is usually sourced from a Court Order which can be made after the payer and payee reach an agreement documented by way of Consent Orders or by applying to the Court for orders if the payee is unable to agree with the payer.
When can an Adult Child Maintenance Order be made?
The Court has a discretionary power to make adult child maintenance orders. That is, it is not required to do so. Indeed it can only make an adult child maintenance order in limited circumstances, namely either if:-
- It is necessary to enable the child to complete their education (including high school, tertiary education, vocational training or apprenticeship); or
- It is necessary because of a mental disability, serious illness or physical disability of the child.
The Court must consider the financial support necessary for the maintenance of the child and determine the financial contribution that the parties should make towards that support.
In determining the amount of maintenance the adult child is to receive, the Court will consider a number of factors including but not limited to:-
- each parent’s financial position and capacity of each parent to support their adult child after meeting their reasonable expenses (including the expenses of any other dependent persons);
- the child’s reasonably necessary expenses which can include housing, food, transport, utilities, household supplies, clothing, medical expenses (e.g. health insurance premiums, medical bills and prescriptions) and education expenses (e.g. textbooks, computer equipment and in some cases tuition fees and tafe fees); and
- the child’s financial needs and their capacity to earn an income (noting income-tested pensions/allowance/benefits are not counted as part of the child’s income).
Ultimately, unless the payer and payee are able to agree, the Court will have the discretion to determine the amount of maintenance that is payable. The Court can order more than one (1) parent to pay adult child maintenance. An adult child maintenance order can require a periodic payment of money or a parent to meet identified expenses on behalf of the child, a lump-sum payment of money or a transfer of property.
An adult child maintenance order as between two (2) parents is able to be registered with Services Australia (Child Support) which can then collect and enforce the maintenance payments from the payer. This is not available if the order is between a parent and another person (e.g. the child).
Applying for Adult Child Maintenance
Persons that are eligible to receive and apply for adult child maintenance orders include:-
- Either of the child’s parents;
- The adult child;
- A grandparent of the adult child; or
- Any other person concerned with the care, welfare or development of the child (which may include a step-parent).
You can apply for adult child maintenance either whilst the child is 17 to take effect when they turn 18 or after the child is 18.
When does Adult Child Maintenance end?
Ultimately, the obligation to pay adult child maintenance will continue for as long as the Order specifies. This can be indefinite but will more commonly be in force for a certain time period or until a particular event occurs (e.g. the child completing the education). An adult child maintenance order will also conclude if the circumstances that give rise to the order cease – for example, if the child no longer has a mental or physical disability and/or is no longer engaged in education pursuits.
An adult child maintenance order will also cease upon the death of the adult child or if the adult child marries or commences a de facto relationship.
Adult child maintenance orders can be varied by consent or by application to the Court if the Court is satisfied that:-
- There has been a change in circumstances that justify the variation. That change may relate to the circumstances of the adult child, the payer or the payee, or the cost of living (if it has been at least 12 months since the original order was made).
- The amount ordered to be paid is not proper or adequate (if original order was made by consent).
- Material facts were not disclosed to the Court in making the original order.
Seeking Legal Advice
You should obtain independent advice from an experienced and specialist family lawyer if you think you or your child is eligible for adult child maintenance. Doolan Wagner Family Lawyers is able to assist you negotiate and formalise an agreement that comprises adult child maintenance, and if an agreement cannot be reached, can provide advice and representation regarding a Court application. Please do not hesitate in arranging an appointment with one of our family lawyers who will be able to assist you with any questions and provide tailored advice for your circumstances. Contact us at enquiries@familylawyersdw.com.au or ring us on 02 9437 0010.
About the Authors:
Lisa Wagner
Lisa is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist holding honours degrees in economics and law. She is also a Collaboratively trained Family Lawyer, a Family Dispute Resolution Practitioner, and a Parenting Coordinator. Lisa has over 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters; working for the majority of that time in Sydney’s CBD as well as on Sydney’s lower North Shore and Northern Beaches.
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Stuart Colderick
Stuart holds a Bachelor of Laws and Bachelor of Arts from the University of New South Wales and has experience in a range of complex property and parenting matters both in documenting settlements and to final hearing stage.
Stuart has a wealth of experience dealing with minority shareholder interests, business valuations and self-managed super funds. He thrives on the more complex financial situations and his clients respect his ability to understand and advise them in these areas.
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Disclaimer:
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.
