For most parents, the eighteenth birthday of a child is arguably one of mixed emotions as they grapple with the daunting reality of their progeny having attained adulthood. For the parent who has been dependent on child support payments to make financial ends meet, this milestone may also present a harsh financial reality: there is not enough to go around. The adult child still lives at home, they still eat, use electricity, watch various streaming services, are still studying and need the car (without remembering to refuel it). Parents often incorrectly assume that now their child is 18, that is the end of financial support.
Even though a child may have attained 18 years or completed their secondary schooling and even though child support may cease, that does not mean the adult child is left financially unsupported. Either the parent with whom the adult child is living or the adult child themselves has the ability to pursue a maintenance claim to provide for their adult years.
What the Law says
Under section 66L of the Family Law Act 1975 (Cth), the Court may make a child maintenance order in relation to a child who is over 18 provided the provision is necessary to enable the child to complete his or her education or because the child has a mental or physical disability. This article deals primarily with the former issue of education (noting the same concepts apply for an adult child who cannot support themselves due to their mental or physical health).
It is important to note that the above elements to making out a case for adult child maintenance are not considered in isolation as the Court also has regard to a range of factors including the following:
- the financial position of each party and their capacity to pay;
- the child’s proper needs age and parents’ expectations for their education;
- the child’s income, earning capacity, property, and financial resources;
- the reasonableness of the order sought.
Education may include University, TAFE and even some apprenticeships – and in the case of the latter category of education, any income that an adult child may derive from such work would then be offset against their financial needs to determine the short fall and therefore the liability of the parent/s to pay what quantum of support.
By the time a child becomes an adult, it is hoped that the parents are able to work together and find a solution which will best accommodate their adult child’s needs. As parents they may well have experienced some form of mediation or even court experience when they first separated. Regardless of the age of your child, it is always best if parents can agree who is going to pay for what. It is always best to exhaust all avenues of negotiation before heading to Court.
If the matter proceeds to Court then if the adult child is in receipt of an income tested pension, allowance or benefit, then the Court has to disregard those payments when determining how much the parent who is found liable to pay maintenance (and this will include funds received by the person with whom the adult child lives (Knezvic v Knezvic  FMCAfam 250).
Even though you or your child could bring an application for adult child maintenance, it is not sufficient that your child is attending University for you to succeed in such an application. The amount of child support which was paid prior to a child completing their secondary schooling or turning 18 is also not the basis on which the Court would order the quantum of adult child support. The facts and circumstances at the time of the application must be considered taking the above elements into account.
Can the amount of support be reduced?
There have been cases whereby the liable parent’s obligations pursuant to child support reduce on the child becoming an adult. For example, in Wadsworth & Wadsworth (2013) FCCA 2043), a father sought a reduction in the amount of child maintenance he was paying for his children on grounds they unreasonably declined offered casual employment during their study breaks. In that case, the Court held that the children’s unwillingness to “actively seek any casual or part-time employment” pending graduation from University constituted sufficient grounds for the Court to make an order reducing the sum of money the father would have otherwise had to pay. Ultimately, it should be noted that the Court’s “central focus” in child maintenance claims is that it is necessary, and not “absolute essentiality”, that maintenance for children to undertake tertiary education and further, that it is likewise reasonable to require a parent’s contribution (Everett v Everett (2014) 52 FAM LR).
When to make a claim
What is important to note for a parent whose child is completing secondary school at then end of this year, if you have exhausted all attempts to resolve this matter with the other parent ahead of University starting next year, you can bring a claim now and if an order is made by consent or by Court order, that order can have a commencement date which coincides with the end of secondary school and the commencement of University. In other words, you do not need to wait until your child who is 17 years old turn 18 and you do not need to wait for your adult child to start at University in order to make the claim. What you will need to do after 1 September 2021 when the Family Court of Australia and the Federal Circuit Court of Australia merge, is to undertake a genuine attempt to resolve your matter by mediation or an exchange of offers. This means you need to start the conversation now.
Caroline Counsel Family Lawyers can assist you understand your options, how mediation can assist you and the other parent decide what is best for your child and what might be possible to ensure their education continues. We can also advise you on what your pre litigation obligations will be from 1 September, ensure that you are compliant with the legislation, work out what is suitable given the facts of your case and represent you in negotiating, mediating and only if necessary, litigating this issue before the Court.
Jordan Reichhold Lawyer and Caroline Counsel Principal of Caroline Counsel Family Lawyers