Written by Danielle Rosano
Generally, financial support for parents or other persons with the care of a child under the age of 18 years are governed by the provisions of the Child Support (Assessment) Act, 1989, which is administered by the Department of Human Services in the form of child support. This support ceases upon a child attaining the age of 18 years or upon completion of their secondary school education, whichever is the later.
However, there are certain circumstances where the Family Court and the Federal Circuit Court (collectively “the Family Courts”) may make orders for one party to pay child maintenance to a child who is over the age of 18 years and has completed his or her secondary education.
The power of the Family Courts to make orders for payment of child maintenance for adult children is contained in Section 66L(2) of the Family Law Act, 1975 (“the Act”), which provides that a child maintenance order for a child over the age of 18 years can only be made if the Court is satisfied that the provision of child maintenance is “necessary” for a child:
- To enable the child to complete his or her education; or
- Due to a mental or physical disability of the child.
Under the Act, a child, a parent, grandparent or any other person concerned with the care, welfare or development of the child can apply for orders from the Court for a parent to pay child maintenance for a child over the age of 18 years.
If the Court determines that the requirements of Section 66L(2) of the Act have been met, the Court must then have regard to Section 66H of the Act, which requires the Court to consider the following factors:
- The level of financial support necessary for the maintenance of an adult child; and
- The financial contribution able to be made by a party for the maintenance of the adult child.
In determining the financial contributions able to be made by one party for the maintenance of a child, the Court will consider the income, assets and financial resources of each party to the proceedings. This will generally involve each party filing with the Court a document known as a “Financial Statement”. A Financial Statement is a sworn document which sets out that party’s weekly income, expenses, assets, superannuation, liabilities and financial resources.
The Family Courts have a wide discretion in determining whether or not an adult child maintenance order is appropriate in the circumstances. There are a myriad of factors that the Court will have regard to in determining any application for child maintenance however, the Court is ultimately required to assess the capacity of any person to pay a child’s reasonable costs on the basis of their financial circumstances.
In some of the adult child maintenance cases that have been determined by the Court to date, when considering whether adult child maintenance is “necessary” for a child to complete his or education, the Court considered the following factors:
- Whether the level of dependence between a child and the parents had previously ceased and whether the application for a child maintenance order constitutes a ‘resurrection’ of that previous dependence;
- The time that has elapsed since the initial cessation of dependence (if applicable) and the time of any application for adult child maintenance before the Court;
- Whether or not a child has completed the level of education initially intended by the parents of that child for that child to then obtain employment to support himself/herself;
- Whether or not the child receives, or has previously received, any form of assistance, benefits or other form of education;
- The ability and likelihood of the child completing the form of education that is in question;
- The financial capacity of the child to support himself/herself after the completion of the education in question;
- the financial circumstances of anyone who is primarily responsible for financially supporting the child (which is generally the parents); and
- the biological relationship between the child and the person from whom maintenance is sought.
In determining whether adult child maintenance is necessary as a result of any mental or physical disability of a child, in previous cases the Family Courts have made clear that the term “necessary ” in the context of adult child maintenance applications is more than morally or socially “desirable” but something less than “absolutely necessary”.
From the cases where adult child maintenance has been ordered by the Family Courts for a child with a mental and/or physical ability, factors considered by the Court in addition to the factors above, included as follows:
- Whether the disabled child lacks mental capacity, physical capacity or both;
- Whether the child is restricted in the way he or she lives;
- The extent of any personal care required for the child;
- Whether the child’s disability impacts upon their ability to obtain and/or maintain employment.
If the Court determines that an adult maintenance order is appropriate, the Court can make an order for such maintenance to be paid in different forms, including by way of periodic payments, a one-off lump sum or in any other manner the Court deems fit.
Although the Family Courts have discretion in respect of the duration of any adult child maintenance order, the duration of such an order is generally finite.
The Court may decide that a child maintenance order ceases upon the child completing their education or qualification.
In the case of a child with a disability, the Court may order that a child maintenance orders ceases when the child no longer has the particular illness or disability (if such disability was a temporary one) or after a particular period of time has elapsed with a view to then reviewing the status of the child’s disability within that specified timeframe to determine whether any further orders are appropriate.
