Adult Child Maintenance: Is Your Child Starting University Next Year?

Tags:

Adult Child Maintenance

Child Support Agency

Prior to bringing an application to the Federal Circuit and Family Court of Australia for adult child maintenance, an adult child/parent of the adult child must make an application to the Child Support Agency. The application is means and merit tested.

Federal Circuit and Family Court of Australia

The Federal Circuit and Family Court of Australia has the power to make child maintenance orders pursuant to the Family Law Act 1975, only where a party cannot apply for child support under the Child Support (Assessment) Act 1989.

A child and/or the parent of the child with whom the child is living with can make an application to Federal Circuit and Family Court of Australia and under Section 66L. The Court has to be satisfied that an adult child maintenance order is necessary to enable the child to complete his or her education or because of a disability of the child.

There is no presumption that any such payments of adult child maintenance are automatic, even if needed or desired. In order to be successful in any application,  the duty is upon the applicant for an adult child maintenance order to persuade the Court that the provision of maintenance is necessary.

The Court will exercise their discretion when making maintenance orders in respect to a child over the age of 18. In exercising this discretion, the Court will consider multiple factors.

Any application made to the Court for adult child maintenance, the Court will consider the following matters:

Section 66K of the Family Law Act 1975:  

  1. Respective income, property and financial support of each parent.
  2. Any commitments of a party to maintain themselves or other children.
  3. Director indirect costs incurred by the party living with the child.
  4. Special circumstances.
  5. If the application is not considered it would result in injustice or undue hardship to the other party.

In addition, under section 66H, the Court must consider the financial support necessary for the maintenance of the child and determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child that should be made by a party or both parties.

Under section 66J, matters to be taken into consideration are:

  1. The proper needs of the child;
  2. The income, earning capacity, property and financial resources of the child;
  3. The age of the child;
  4. The manner in which the child is being and in which the parents expected the child to be educated or trained; and
  5. Any special needs.

The factors in which the Court considers and gives specific emphasis will depend on the facts of each case and the reason of the applicant for the application being made.

Tertiary Education

Applications made under section 66L(1) (a), in whether to grant adult child maintenance for the purpose of completing education a Court will consider the following factors:  

  1. whether the ‘nexus’ of dependence between the child and parents had ceased and the application amounts to a ‘resurrection’ of that dependence;
  2. the period between initial cessation of dependence (if any) and the application;
  3. whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself. A child who merely rejects paid employment without reasonable excuse will likely be declined maintenance.
  4. other assistance, benefits or education which the child has received;
  5. the ability of the child to complete the course in question;
  6. the likelihood of the child completing the course in question;
  7. the financial capacity of the child to maintain himself/herself to the completion of the “education”;
  8. the financial circumstances of those persons responsible for support of the child (generally the parents);
  9. the filial relationship between the child and the person from whom maintenance is sought.’ It is not a necessary element that there be a warm and loving relationship between the child and the parent in which maintenance is sought from.

(In Cosgrove (1996) FLC 92-700 Warnick J)

You should not assume that adult child maintenance orders will remain in place once orders have been made. Under Section 66S(2)(a) of the Family Law Act 1975, if an application is brought to discharge adult maintenance and the Court declines to discharge the current orders but forms the view that a variation is relevant, section 66S(3) of the Family Law Act 1975 sets out the grounds upon which a Court may increase or decrease a current adult child maintenance. Broadly these grounds are:

I.                    change in circumstances of the child, payer or payee (section 66S(3)(a);

II.                  a change in the annual cost of living (section 66S(3)(b)

III.                that an order was made by consent and the amount ordered to be paid is no longer proper (section 66S(3)(c);

IV.               that t the time orders were made either material facts had been withheld from the court or material evidence was false (section 66S(3)(d).   

For an adult child maintenance application to be successful, it is extremely important that any Application brought to the Federal Circuit and Family Court of Australia is accompanied by detailed Affidavits of the applicant and possibly the children who the maintenance is sought for.

Posted