201 Elizabeth Street
Sydney NSW 2000
99 William Street
Melbourne VIC 3000
231 North Quay
Brisbane QLD 4000
1 Farrell Place
Canberra ACT 2601
In today’s society, children are maturing later in life and remain financially independent well beyond the age of 18. Yet, broadly speaking, the Court does not expect parents to continue to support their children financially beyond the age of 18 years. Generally, a parent’s obligation to support their children falls under the Child Support (Assessment) Act 1989 (Cth). This Act only operates in respect to children under the age of 18 years (noting, however, that there is a provision for the child support to extend to the end of secondary schooling if the child turns 18 during their last year).
This position sits at odds with children who wish to pursue tertiary education and disadvantages children who suffer from any mental or physical disability. In some cases, the Court has ordered a party to pay child maintenance for children of the relationship who are already adults.
The power for a Court to award adult child maintenance is utilised sparingly. A Court must not make an Order for child maintenance in respect to adult children unless the Court is satisfied that such maintenance is necessary to (a) enable the child to complete his or her education or (b) support the child due to a mental or physical disability (on the part of the child) (section 66L of the Family Law Act 1975 (Cth)).
A Court will also need to be satisfied that the parent who is expected to pay the adult child maintenance has the financial capacity to do so. In most cases, the Court is required to weigh the merit of the case (i.e. the child’s need for ongoing maintenance) as against the payer’s financial capacity.
In the decision of Everett & Everett  FamCAFC 152, the adult child suffered from cystic fibrosis which was diagnosed at the time of her birth. She later contracted diabetes and developed an obsessive compulsive disorder. She had completed year 12 in 2011 and had achieved a high score enabling her entry into University. The Father has been paying spouse maintenance and child support on an interim basis. In addition, the Father had been paying for the child’s extra-curricular activities, physiotherapy fees, medical expenses, pharmaceutical fees and her private school fees until the child completed Year 12. The Mother had not returned to work after the child’s birth due to her ongoing medical issues and health appointments. The evidence before the Court was that the Father’s income was approximately $650,000 per annum. The Mother sought for the Father to pay the child $688 per week by way of child maintenance as well as a lump sum payment of $10,000 to enable the child to purchase a car to travel to university.
Interestingly, the Court held that it was irrelevant to consider the nature of the relationship between the adult child and the paying parent. All that needed to be shown was that such child maintenance is “necessary” to enable to the child to complete his or her education. Necessary does not mean “absolutely essential”; all that is required is that such maintenance is needed by the child and that it is reasonable to require the parent to contribute (looking at the parties’ financial circumstances and any other relevant factors). The child’s likelihood to completing the course was also considered as well the child’s ability to support themselves financially (if any).
Some factors the Court will consider are as follows:
The Court is also to disregard any entitlement of the child to an income tested pension, allowance or benefit. Therefore, the child’s eligibility to claim any government benefit such as the disability pension is to be ignored.
Children can also make this claim against their parents. In the case of Re AM (Adult Child Maintenance) (2006) 198FLR 221, the adult child claimed adult child maintenance as against one parent due to the child’s physical disability. The Court awarded the child adult child maintenance but capped the maintenance at 5 years. Additionally, the Court sought for both the mother and the father to pay the maintenance, notwithstanding the fact that maintenance was only claimed against one parent.
Image Credit – Ion Chiosea © 123RF.com
Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100