Checklist on Adult Child Support
Generally speaking, once a child turns 18, child support is no longer payable pursuant to the formula under the Child Support Assessment legislation.
Thereafter, adult child support can only be made pursuant to Court Orders in limited circumstances, set out in section 66L of the Family Law Act. In summary, maintenance can only be ordered to enable a child to complete their education or because of mental or physical incapacity.
A—FINANCIAL SUPPORT FOR SECONDARY EDUCATION
When negotiating adult child support, the following issues should be considered:
- The Family Court can only make an Order for a child over the age of 18 years if the child is not covered by the Child Support Assessment Act. Children, who are over 18 but still in fulltime secondary education, if an application is made at the correct time for an extension, can still be covered by the Child Support Assessment legislation until the last day of their schooling.
- If a parent or a child is in receipt of Family Tax Benefits, and the child is going to be over 18 but still in secondary education, it is important that the parent apply for an extension of the child support assessment within the required time period, otherwise they will lose an entitlement under the Family Tax Benefit legislation. They will be limited to receiving the base rate only for the child.
- Orders with simple dollar amounts are preferable as they are unlikely to present implementation issues. There can also be an indexation method whereby it annually increases in line with the consumer price index.
- An Order requiring periodic payments to a carer for maintaining an adult child can be registered for collection by the Registrar of the Child Support Agency. Payments made direct to an institution for tuition fees are not periodic payments and their collection will not be pursued by the Registrar of the Child Support Agency.
- The Registrar is not able to enforce adult child maintenance Orders payable to the adult child themselves.
- In drafting adult child support Orders or Child Support Agreements, contemplate changes to financial circumstances – that is, what is to happen if the liable parent becomes unemployed or there is a significant increase in the adult child’s income.
- In drafting adult child support Orders or Child Support Agreements, contemplate changes in care arrangements. For example, an adult child may decide to spend more time with the paying parent and should this then trigger a change in the Order.
- In drafting adult child support Orders or Child Support Agreements, contemplate the circumstances which will result in suspension or final termination of the liability. For example, will the liability end when the adult child completes, leaves, defers or fails their studies? Is the financial support payable only for a particular course of study? What is the consequence for changing from full time to part time study or taking a gap year?
- Specify the evidentiary requirements and time frames for the information to be provided to the other party and/or the Registrar. For example, when are academic results required to be provided and what are the consequences if they are not provided.
- Provide clearly defined key terms to avoid doubt. For example, when talking about income, are you talking about taxable, gross or nett.
- In preparing an application to the Court to seek an Order for adult child maintenance, the following issues should be covered in the evidence:
- Whether the course to be pursued by the child is going to help the child to earn an income;
- Whether the child appears to be qualified to pursue and profit from the course;
- Whether the child has scholarship assistance, or other income;
- What hardship would result to the child if he or she had to abandon the course through lack of means;
- Whether the parent asked to pay has the financial capacity to assist.
- What are the necessary living expenses of the child—you would need to do a detailed budget but necessary does not mean absolutely essential to survival. In the case of Everett & Everett  FamCAFC 152 in the circumstances of that case overseas holiday travel and the purchase of a motor vehicle were not considered necessary and were rejected.
- The relationship between the child and the parent asked to pay is only relevant if it can be established to be a special circumstance which, if not taken into account in a particular case, would result in an injustice or undue hardship to any person. See section 66K(1)(e) Family Law Act. A contention that a child spends little time with the parent and communicates poorly with that parent, was not found to be relevant in the case of Everett & Everett.
- Drafting the Orders requires there to be some limitations on payment, e.g. payment should cease if the child discontinued enrolment or failed to continue to pass the subjects.
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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