Child maintenance beyond the age of 18 years and childbearing expenses

Monday, October 16, 2017

So, your child has now reached 18 years of age and there’s no more support liability right?  Not so quick.

Child support, as the financial support of children is known in Australia, is a legal responsibility to the age of 18 years.  Beyond that time, wouldn’t it be a moral rather than a legal responsibility to support the child?  No, not always.  There is a little thing called Adult Child Maintenance which applies in relation to children over the age of 18 years.

And, just because you might be a step-parent, it doesn’t mean that you are completely exempt from responsibility.

Stepping through the basics

Adult Child Maintenance is payable by court order unless the child is completing Grade 12 and turning 18 years old that year.  Where the child turns 18 and is completing Grade 12, the residential parent needs to liaise with the Child Support Agency, before the child turns 18 years old, for an extension of the Assessment, through to the time when the child will complete school.

When your adult child is at university or has a physical or mental disability that restricts their ability to obtain employment, they can make an application to the Federal Circuit Court for financial support.

This article concerns the student.  Where the child has enrolled to study, either the child or parent, with whom the child lives, can make an application for maintenance.  Section 66L of the Family Law Act 1975 (“the Act”) outlines the conditions of making an application.  The application must be “to enable the child to complete his or her education”.

There seems to be a wide interpretation of this part of the section.  It includes things such as purchasing a motor vehicle, paying for residential accommodation and associated expenses, tuition costs and the associated expenses of tertiary or similar education.  Further, the child does not have to go straight from high school to the course of study – they may have a gap year or study at a time other than the first semester after high school.  Whether to allow the application for adult child maintenance is a discretion that rests with the court.

In coming to a decision the court is to objectively consider factors like:

  • the nature of the study commitment, e.g. the course and the hours involved,
  • the likelihood that the child will finish that course of study,
  • whether it is appropriate for the course of study to be deferred so that the child can earn money and support him/herself at a later time,
  • the ability of the child concerned, and the parents, and their intentions to provide financial support for him/herself taking into account the study and commitment required as well as part-time work that can be secured,
  • the attitude of the parents to the particular course of study,
  • whether the child is estranged, or not, from the parent – the dependence relationship that has been in place in the past and whether or not that has ceased, why and how, and
  • financial situation of each household of the child’s parents.

The court’s position

The courts are clear that this is not a means via which one parent can seek to equalize the financial circumstances between the two parental households where one household is significantly better off than the other.  However, the court will weigh up where the parents live and their respective lifestyles.

Additional factors

Coming back to basics though, the court will start by looking at the level of support that is reasonably necessary and the child’s capacity to earn.  Where the child has any property, it does not mean that they will necessarily be required to divest themselves of their capital to undertake study, however, it is a consideration especially if they have assets that are capable of producing an income but are not doing so at that time.

It will then consider what contribution is considered appropriate by the relevant parent/s.  The nature of the parent/child relationship appears to be relevant as to the amount which a parent is to contribute rather than whether or not to make the order.  The judges are not shy in commenting as to the balancing act between a broken relationship and the desire for support from a party to that broken relationship. But we are not finished yet.

Where requested to do so, the court may also look at a retrospective assessment of adult child maintenance.  So, this means that they may look back a period of time, sometimes years, and calculate an amount of support that should have been paid over that time, then order that amount paid, in addition to the ongoing support.  This can amount to tens of thousands of dollars, and in some cases much more.

The court may set conditions on the payment of adult child maintenance as well.  These conditions might be that the child is required to remain enrolled in the course of study and to provide proof of that enrolment to the paying parent 28 days before the commencement of each term.  Once the child has done this, then the semester support might be required to be paid.  This attempts to ensure co-operation by all.

Adult child maintenance – Case examples

Charlton & Crosby [2010] – A lump sum of $55,000 was sought for X who was doing a double degree.  There was little paternal affection and a history of difficulties with child support.  There is a preference for periodic payments although section 66P has wide powers regarding how payments are to be made.  Full and frank disclosure of the financial situation of all involved is fundamental.  The educational standards of the parents is a factor to be considered as the parental behaviour.  The cost of supporting the child does not necessarily have to be equal but it has to be equitable.  In this case, a lump sum was ordered due to the levels of animosity. $12,000 was the amount ordered (covering four years of study) which is to be invested and thereby provide an income.  The funds are to be released pro rata at the beginning of each year in $3,000 instalments.

Masterton & Masterton & Anor [2012] – The order was that the father pay $1,000 per semester conditional upon the adult child remaining in enrolment at university and providing proof of enrolment 28 days before the payments of support are due.  Again, there was no cordial relationship.  “Proper” needs had to be met for a “child” of the relationship.  Child in this context being offspring rather than under the age of 18 years.  The court ordered that there should be an equitable arrangement for support of the child. In exercising the powers, the court’s approach is discretionary and they must consider all circumstances of the case.  The relationship between the child and parent may limit the level of financial support.

Hampson & Bailey [2013] – The mother sought an order that the father pay $500 per week plus CPI variation and some other orders tied to the child’s earning ability.  The child’s educational progress was satisfactory and it was proper that s/he be enrolled.  The court considered that it was not necessary to fund a post-graduate or masters degree.  The court allowed $375 per week as there were ultimately career opportunities for this child.  The child had provided a financial statement but not an affidavit.  The second child that the application concerned was living independently.  The mother sought $100 per week for this child who had previously deferred his studies and earned his own income.  The court was not satisfied that it was proper to make an order for the second child or that it was necessary to support the child in completing his studies.  The child had not filed any documentation concerning his financial situation.  The court did leave open the prospect of a further application, at a later date, when the child was settled in his studies and situation.

What about step-parents, are they liable?

Step-parents are not automatically released from potential responsibility to provide support for their partner’s child.  Section 66D of the Act sets out the principles of when there is a duty to maintain a step-child.  Section 66M sets out when there is a duty to maintain.

The duty of the step-parent is secondary to that of the biological parents.  A step-parent should be the last port of call.  The length and circumstances of the marriage with the child’s parent will be looked at, along with the relationship between the step-parent and child, the maintenance of the child to date, any special circumstances and the support available from the biological parent.

Any application for support will need to demonstrate the efforts that have been undertaken to obtain support from the biological parent, length of delay before the application, contact with the biological parent and property settlement received by the biological parent, where appropriate as well as the assumptions of responsibility.

An area where this aspect has arisen is where a declaration is sought that there is an obligation to support a step-child (i.e. the step-child is a relevant dependant child), where the step-parent is seeking to have that child taken into account for Child Support Assessment purposes.  In those applications, the biological parent that the step-parent is married to needs to be joined in the proceedings and there is no guarantee that the court will be minded to allow the declaration, especially if the step-parents’ obligations to his or her own children are going to be affected.

Where the application is successful in obtaining a declaration (formalized as an order) that the step-child is a relevant dependant child, then and only then will the Child Support Agency take into account that declaration as it is now an order.  There must be a legal duty to provide support before the Agency will take into account this aspect.

Are you liable for supporting your former partner after separation?

Separately, there’s the little known area of childbearing expenses.  Section 67B of the Act sets out when a father is liable to pay for the mother’s support and expenses.  This only applies where the parents are not married.  The court will look at the income and financial resources of both parents along with their capacity to earn and derive income.  Orders can be made urgently or as the court considers proper.

A mother can claim for three months maintenance – two months before the child is born and one month after where the mother is in employment – her reasonable medical expenses associated with the pregnancy and birth, and reasonable funeral expenses for the mother and/or child.  The medical expenses would likely include gap amounts on specialist appointments and probably also inpatient costs.  The caveat to all this is that the amount sought is reasonable.

Lastly, the application must be made within 12 months of the birth of the child or with leave of the court.

Conclusion

So, the legalities of child support run much longer, potentially, that just the first 18 years of a child’s life.  At the end of play, at the end of day, what is “reasonable” is an objective standard and each case is considered on its own merits.

Judgments mentioned in this post:

Title: Charlton & Crosby [2010]
Date: 5 March 2010
Court: Federal Magistrates Court of Australia

Title: Masterton & Masterton & Anor [2012]
Date: 31 August 2012
Court: Federal Magistrates Court of Australia

Title: Hampson & Bailey [2013]
Date: 2 August 2012
Court: Federal Magistrates Court of Australia

How we can help

Quinn & Scattini Lawyers are highly experienced child and adult child maintenance.  We offer compassion and understanding to our clients going through a separation, and offer expert advice to our clients to ensure they preserve their interests at time of separation and beyond.

Why choose us?

You will be talking to a real expert, local to you.  You will not be treated like a file number, but as a real person, and a person going through a difficult and stressful experience.  Get expert advice, not just what you want to hear, in a language you can understand, not legal jargon.

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