Adult Child Maintenance Orders
A child maintenance order is made when a parent is still required to provide financially for a child after the child has turned 18. This may be necessary because the child is unable to provide for themselves due to a disability or because they are still studying full time and dependent on their parents. This article outlines how adult child maintenance orders work.
Who can apply for a Child Maintenance Order?
A parent, the child, a grandparent, or any other person concerned with the child’s care and welfare of the child can apply for an adult child maintenance order. This application can be made when the child is 17 years of age, to commence when the child turns 18 or after the child has turned 18.
When will a Child Maintenance Order be made?
A court will not make a Child Maintenance Order unless it is satisfied that maintenance is necessary:
- To enable the child to complete their education, or
- Because of a mental or physical disability.
When a court hears an application for child maintenance, it must consider the financial support necessary for the maintenance of the child and the amount of the contribution/s towards that support that each party should make.
In deciding what support is necessary, the court will consider, the proper needs of the child, and the income, earning capacity, property and financial resources of the child. Those ‘necessary expenses’ can include:
- the adult child’s share of food, household supplies, utilities, housing and transport,
- educational expenses – books, electronics and tuition fees,
- doctors/specialists fees, prescriptions etc.
In determining the contribution from each party, the court will consider:
- their respective income, property and financial resources,
- any commitments to maintain themselves or another child they have a duty to maintain,
- the direct and indirect costs incurred by the party living with the child in providing care for the child, and
- any special circumstances which, if not considered, would result in injustice or undue hardship to any person.
When does a child maintenance order end?
A Child Maintenance Order will stop being in force when the child turns 18 unless the order is expressed to continue thereafter. There is no express age limitation on such an order and the order will endure as long as the court deems it necessary to enable the child to complete their education or because of the child’s mental or physical disability. Usually, the court will make an order that maintenance is payable until:
- the adult child finishes their education;
- on a particular date for example, when the adult child turns 21 years of age; or
- when the adult child no longer has a mental or physical disability.
In cases where the basis for the order is to enable the child to complete their education, it is often apparent how long the order should last. Evidence ought to be included in the application as to the nature of the child’s education including when the child expects to conclude the education, which may have a defined end date or which may depend on the efforts of the child. In the latter case, an order expressed to last a defined period reasonable to enable the child to complete their education may be more appropriate.
An end date is more complex when considering the less common applications on the basis of mental or physical disability, and the court must always consider whether the adult child is in such a dependant condition as to be incapable of supporting themselves.
If a party makes a further application to court where there is a Child Maintenance Order in force, the court may discharge, suspend, or vary the order (to increase or decrease the amount to be paid or in any other way) if it satisfied:
- that, since the date the order was made:
- the child’s circumstances have changed to justify the variation; or
- the circumstances of the payer have changed to justify the variation; or
- the circumstances of the payee have changed so as to justify the variation; or
- where the order is in favour of or binds a legal personal representative, the circumstances of the estate are such as to justify the variation; or
- that, since the order was made, the cost of living has changed to justify the variation;
- where the order is made by consent, the amount of the order was not proper or adequate; or
- where material facts were withheld from the court when the order was made, or material evidence that was given, was false.
Even if a Child Maintenance Order is made with the consent of the parties, the maintenance must be proper and adequate to meet the child’s necessary expenses to enable them to complete their education or because of their mental or physical disability. If it is not sufficient to do so, there may be scope to discharge, suspend or vary the order in the future.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.