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Maintenance For Adult Children

Maintenance For Adult Children

Applying for an ‘adult child maintenance’ order

As a parent, you are able to seek an order for adult child maintenance if you can show the court that the maintenance is necessary to enable a child to complete her education, or if the child is disabled. The child does not have to already be 18 for you to seek this order; you are able to apply for adult child maintenance whilst the child is 17 to take effect when she turns 18.

What factors will the court consider?

There are guiding principles which will influence the approach of the court to this issue. When considering an application for adult child maintenance, the court will firstly acknowledge the need for the child to receive a proper level of financial support from both parents. Secondly, the court will consider that the child’s needs should be met equitably, and that one parent should not supply the whole of the child’s financial needs.

With these guiding principles in mind, the court will consider two primary factors when determining an application for adult child maintenance against the other parent:

1. How much financial support the child needs.

2. Each parent’s financial position, including earning capacity. This includes each parent’s overall expenditure with respect to your their support and also any other dependents they may have.

How much financial support does the child need?

The child’s required level of financial support will turn on what her ‘proper needs’ are. This includes factors such as her age, the manner in which she is being educated, and the manner in which her parents expected her to be educated. It is important to note that ‘proper needs’ does not simply extend to university fees and related scholastic expenses; rather, ‘proper needs’ means those needs which are reasonably necessary to enable the child to complete her education, such as accommodation and food.

The court will also consider what the child’s personal income, earning capacity, property and financial resources are. In past decisions, the Family Court has stated that university students are capable of working concurrently whilst completing their studies; however, the Court has also acknowledged that a full-time university student cannot reasonably be expected to fully support herself. As a result, the level of financial support that the child may be shown to need could be reduced by her capacity to find casual or vacation work.

If she is in receipt of any income-tested benefit or allowance, such as Youth Allowance, this will not be counted toward the child’s personal income.

How much should the other parent have to contribute towards the child’s maintenance?

In determining how much the other parent should pay towards the child’s maintenance, the court will take several factors into account. Specifically, the court will consider:

· The income, earning capacity, property and financial resources of each parent;

· The capacity of each parent to earn and derive income (this includes assets which are held by either parent, or for their benefit, and which are capable of producing income);

· Your forgone earning capacity incurred by the child living with you;

· Your direct and indirect costs incurred by the child living with you;

· The level of financial support that each parent requires to support themselves, or other dependents; and

· Any special circumstances.

In what way might a maintenance order for the child be paid by the other parent?

A court is able to order maintenance to be paid as a lump sum, as a transfer of property or any other method of payment, including instalments. In situations where a payer of child maintenance has been recalcitrant in the past, the court may order a lump sum to be paid. However, more commonly, where a party has cooperated with respect to previous maintenance payments, instalments are the most appropriate method of payment.

A Case Study: Charlton & Crosby [2010] FMCAfam 207

In Charlton & Crosby, the mother was seeking a maintenance order with respect to a child who, since proceedings had commenced, had turned 18. In this case, the child was enrolled in a six year university double-degree and was studying full-time. The child lived with the mother and was estranged from the father.

The mother argued that the child was entirely financially dependent on her. She argued that he required ongoing financial support in order to complete his undergraduate education. The mother estimated the child’s weekly expenses to be approximately $420 per week and asserted that the father should contribute at least 42% of this. She argued that the child was a diligent student and was not able to work concurrently whilst completing his studies. The father argued that this was an inflated estimate, and submitted that the wife did not give any regard to the child’s ability to provide his own financial support; particularly, the child had won scholarships in the past and indicated that he was able to tutor other students, as well as seek part-time employment.

Based on the preceding considerations, the court determined that:

· It was expected in this family that the mother and father would provide financially with respect to the child’s schooling and undergraduate education;

· It was necessary for the parents to provide the child with a degree of financial support, as he would not be able to fully support himself whilst completing his undergraduate studies;

· It was reasonable that the child provide for half of his projected financial needs;

· The fact that the father was estranged from the son meant that:

o He would not be able to guide his child academically;

o His support would be largely thankless; and

o He would not be able to enjoy the child’s academic achievements.

With respect to the financial resources of each parent, the court found that both parents had similar incomes and earning potential. However, because the child had been estranged from the father for several years, the court did not think it proper for both parents to contribute equally or in the terms sought by the mother.

Ultimately, the court found that the father should contribute 20% of the child’s expenses. This amounted to $3,000 per year and totalled $12,000 for the remaining four years of study that the child was to complete. The court ordered that the $12,000 sum be placed in an interest bearing account and that at the beginning of each year $3,000 be released in each year that the child would be engaged in study. However, this order was qualified with the provision that if the child ceased studying or commenced full-time work, the father’s funds would be refunded.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.