What is Adult Child Maintenance?
A child support assessment ends upon a child turning 18 years of age. Or if a child turns 18 in their final year of secondary schooling, then the assessment will continue until the child completes that school year.
An order for maintenance of an adult child may be ordered if it can be established that financial support is necessary to enable the adult child to complete their education or because of a mental or physical incapacity. Such a situation becomes the province of the Family Law Act, not the Department of Human Services (Child Support) and therefore the formula used in an administrative assessment is not applied. Rather the court would consider:
whether the child has already completed a course of tertiary education;
other assistance or benefits the child is receiving;
the financial capacity of the child to maintain themselves; and
the financial circumstances of the parents and their obligation to support themselves and other dependants.
What a court has to consider in determining the quantum to be paid could be likened to a spousal maintenance order. The court will weigh up what the adult child’s reasonable expenses are and their capacity to mitigate their need versus what capacity the parent has to contribute after payment of their reasonable expenses.
An application can either be made when the child is 17, with it to commence when the child reaches 18 years of age or after the child has reached 18 years or age.
Who can apply?
A number of people can apply for maintenance for an adult child, including:
the parent whom the adult child is living with;
the adult child;
the grandparent of the adult child;
another person who is concerned with the care or development of the child. An example of this may be an aunt or an uncle that the adult child resides with.
What type of order?
If the court is satisfied that grounds exist for adult child maintenance the amount could be by way of:
a lump sum payment, whether in one amount or in instalments;
a periodic amount, to be either weekly, monthly or yearly; or
an order for the transfer or settlement of property by way of maintenance for a child.
When does the maintenance end?
An adult child maintenance court order will finish:
if the circumstances that gave rise to the order cease. For example, a child ceased or completes their university studies or ceases to have their disability.
the death of the payer.
the marriage or entering of a de facto relationship by the child.
If one of the above circumstances occur and the payee does not inform the payer of the change in circumstances, funds may be recovered through the family courts.
What about if we have an agreement?
If the parties reach agreement for the payment of adult child maintenance, for the agreement to be legally binding the agreement must be made by way of a consent order.
Do I need legal advice?
Adult child maintenance is an unusual and complex area and specialist family law advice should be sought if you are considering it or have been asked to continue payments for a child over 18 and you disagree about the payments.