Are you co-parenting a child with a mental or physical disability and receiving child support from your co-parent? If you are concerned about what will happen once your child turns 18 and is no longer eligible to receive payments under the child support legislation, you could consider making an application for adult child maintenance under the Family Law Act.
The recent court case of Rustam & Faraz (pseudonyms) shone a light on this aspect of family law, when a mother applied to have a father continue to make support payments for their two adult children with special needs.
The Family Law Act deals with adult child maintenance in section 66. This section provides that courts can make child maintenance orders for kids over 18 if the court is satisfied that such maintenance is needed. The maintenance can be required for a child in order to complete their education, or for kids who have a mental or physical disability (or both).
It’s important to note that child maintenance is only ordered in limited circumstances, because it is expected that normally an adult child will support themselves. Note also that orders made in the family courts with respect to adult child maintenance are still registered with the Child Support Agency for collection.
How do courts determine adult child maintenance applications?
First, the court is required to establish the level of financial support that would be needed, and then the court assesses the capacity of each parent to contribute to that support. In assessing all the factors under the legislation, the courts look at the children’s ages, their capacity for work while studying, the manner in which they are being educated and any special needs.
The court will assess the amount of financial support required, determining what are necessary expenses. Under the legislation, these include direct and indirect costs, such as the adult child’s contribution to food and household expenses, rent, transport, educational expenses (including tuition fees), as well as medical expenses such as doctor and specialist fees and medications.
The courts then assess each parent’s capacity to contribute, which involves looking at each parent’s income, earning capacity, property and financial resources, as well as expenses. The court will also consider any commitments parents have to other dependents, and whether there are any special circumstances which may result in hardship for a party.
A sample case
In Rustam & Faraz, the two adult children were a male aged 22 and a female aged 19. The son has ADHD while the daughter has learning difficulties, performance anxiety and ADHD. The mother, being the applicant in the matter, bore the onus of showing that adult child support was necessary for the two adult children. The court found that she did not show that adult child support was necessary for her son.
The mother said the son was not capable of nor ought to be expected to work while studying. This is primarily because Mr C’s psychiatrist does not recommend employment whilst he is studying and because by the end of his day his ADHD medication has worn off.
This was unsuccessful however, as the court found, among the reasons, that the psychiatrist’s report only discouraged the idea of work, and that the report was somewhat dated and not based on the son’s current circumstances.
Although the mother was not able to meet the onus of showing that adult child maintenance was necessary for her daughter’s tertiary education, her application for her daughter to receive adult child maintenance was successful due to the daughter’s disabilities. It was ordered that the daughter receive $329 per week in support from the father while completing her tertiary education due to her special needs.
Who can apply for an adult child maintenance order?
Any person concerned with the adult child’s care and welfare (including parents, grandparents and even the adult child themselves) can make an application for an adult child maintenance order. Such an application can be made once the child turns 17, in order that it can commence once the child is 18 or thereafter.
How long does an adult child maintenance order last?
There is no express age limitation – orders are designed to continue as long as a court finds it necessary to ensure the adult child can complete their education (which typically has a defined end date) or because of the adult child’s disability. Sometimes, a particular date is set, such as when the adult child turns 21. If the adult child’s circumstances change, or if the circumstances of the paying parent have changed, it is possible to make further application to the court to discharge, suspend or vary the order (for example, changing the amount to be paid).
Adult child maintenance orders can be made by consent, but a court will still need to be satisfied that the order would be proper and sufficient to enable the adult child to complete their education or because of their disability.
If you would like advice in relation to adult child maintenance, or any other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.