If you are looking for legal assistance in this area, please contact ACM Legal by making a booking or via email at team@acmlegal.com.au
DISCLAIMER:
The information on this website is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact ACM Legal if you are seeking advice about a specific legal matter.
Adult Child Maintenance is a payment that can be made from one person to another for the support of a child in limited circumstances. It is similar to child support which is often payable until a child turns 18 years of age.
Where a child has a mental or physical disability, or is studying full-time education, an eligible person (applicant) may apply for a maintenance payment from an individual (respondent), to continue past the child’s 18th birthday.
An order for adult child maintenance may be made where the applicant can show there is a need for continued support, and that the respondent has capacity to make the ongoing payments.
In Australia child support ends once a child attains the age of 18 or once they have completed their high school education.
There are some limited circumstances where parents might be required to pay ongoing support for a child after that time.
These circumstances include when a child remains dependent on their parents for support, due to ongoing tertiary study or because of a disability. These circumstances may give rise to a claim of Adult Child Maintenance under the Family Law Act.
If these circumstances are relevant to you, book a free 15 minute consultation with ACM Legal, the experts in Adult Child Maintenance.
Proceedings for child maintenance may be instituted by either or both of the parents, by the child, by a grandparent of the child or by any other person concerned with the care, welfare or development of the child. However, it is necessary that at the time of the application either the child, a parent of the child, or a party to the proceedings should be an Australian citizen, ordinarily resident in Australia, or present in Australia.
A claim for Child Maintenance considers that parents have the responsibility to meet the proper needs of their children. The Family Law Act puts the best interest of the child as the paramount consideration. This automatically applies to children under 18 years of age and is administered through the Child Support Agency in most cases.
For an order to be made for a child over the age of 18, the court must be satisfied that the ongoing payment is necessary to allow the child to complete their course of education, or because of a mental or physical disability.
The word “necessary” does not mean “absolutely essential” but involves a consideration of “reasonableness”. Cosgrove v Cosgrove (No2).
The payee or applicant parents must show that the payment of maintenance for an adult child is necessary. There are many factors that are considered when assessing ‘necessity’.
The child’s proper needs given their age, any special needs of the child, and the education that was anticipated by both parents.
Necessity considers the income earning capacity and financial resources of the adult child, however does not use any income-tested payment from Centrelink in considering necessity.
Ideally, the amount of support would be negotiated between the paying and payee parent before a court makes an order. This would consider the need of the payee parent, the need of the adult child, and the capacity of the paying parent to make ongoing payments.
If an application is brought before the court, the payee parent may seek to apply for an amount equal to, for example, the shortfall that they experience after considering the cost of financially supporting the adult child in their care.
The amount is dependent on the cost of raising the child given their specific needs, and the income of the payee parent.
The income of the paying parent is considered when determining whether they have the capacity to continue to support their child after the age of 18.
The income of the payee parent and the adult child are also considered, however income-tested pensions from Centrelink are not used to calculate income for the purpose of determining the amount of maintenance payable.
When determining the capacity of the paying parent to pay maintenance, the amount of support they give to others in their care will be considered. This includes child support paid to other children.
The amount of maintenance payable will be different in each case based on need, capacity of the paying parent, and capacity of the payee parent and adult child to earn income.
You should contact Centrelink for advice on whether the maintenance payment has an effect on your individual payments.
In most circumstances, income-tested pensions are not affected by a payment of child maintenance.
As part of the process of making an application, both parties will be required to provide a sworn financial statement to show their income, assets, liabilities and expenses.
The payee parent may also have to provide information on the income and assets of the adult child.
Early resolution of your matter, before it proceeds to an application in court, may avoid the time-consuming process of making a full financial declaration.
Parties attending mediation may agree to a limited disclosure of their financial situation for the purposes of making an agreement.
The amount of savings and other income producing assets may be considered when assessing need. However it is not required that an adult child divest themselves of all savings to qualify for an Order of maintenance.
No, NDIS funding does not preclude the payee/carer parent from applying for a maintenance order.
NDIS funding may be considered when assessing the expenses that are necessary to support the adult child (for example, a service covered by NDIS cannot be considered the expense of the payee parent). However, as NDIS funding does not typically cover necessary living expenses, its impact on your claim may be limited.
Yes, “Education” includes secondary and tertiary education, Technical and Further Education, vocational courses and training.
The education that is being undertaken must be shown to be aiming to equip the adult child with skills to be employed in the future so they may support themselves and must be reasonably likely to be completed by the adult child.
If your child is receiving an income from employment during their study, eg apprenticeship wages, this will be considered in the calculation of the need for maintenance.
Yes, the Disability Support Pension is an income-tested pension and is not included in calculating adult child maintenance.
Income from employment will be considered as income for calculating a maintenance payment.
The ideal way to resolve this type of problem is to make contact with the other parent while the child is 17, to make arrangements for when they turn 18. We can assist you in the first stages by writing a letter to the other parent requesting some necessary and reasonable support to continue.
At ACM Legal we believe in early resolution and would assist you to pursue the mediation process if initial contact is unsuccessful. We would be assisting you to aim to resolve the matter prior to your child’s 18th birthday or when child support is due to end (such as at the end of secondary education after turning 18).
If mediation is not successful, the application process for Adult Child Maintenance is made through the Federal Circuit and Family Court of Australia. The team at ACM Legal can assist you with preparing your affidavit, financial statement, and other required Court documents, for making an application.
If your child is receiving an income from employment during their study, eg apprenticeship wages, this will be considered in the calculation of the need for maintenance.
Any government income-tested payment eg Youth Allowance/Disability Support Pension will not be considered.
Other income earned by them will be considered.
Yes, at ACM Legal we are experts in this area of law and wish to assist parties who are the applicant or respondent in Adult Child Maintenance matters.
We can assist you to communicate your individual circumstances and position to the payee parent, which may not allow you to continue making payments. We will assist you to assess your capacity to pay, and the case that the applicant parent has for a claim.
If you have already been served with a claim for Adult Child Maintenance, we can assist you with your response to the application, affidavit, financial statement, and other required documents for lodging with the Family Court.
We are committed to assisting parties to resolve their matters early and will encourage participation at mediation and other dispute resolution pathways during your matter.
The presence of a warm relationship between the adult child and the paying parent is not necessary when considering the need for an Adult Child Maintenance claim. However, there are many other factors which may be considered in determining need.
A court can make a child maintenance order for a child over 18 years, or extend an order past a child's 18th birthday, if satisfied that it is necessary:
This area of law is quite complex. It is governed by the Family Law Act section 66L. However family lawyers may not bring this to your attention during your separation and property settlement.
Self-represented litigants are popular in the Family Court system, however the advice of a lawyer in this area can assist you to reach your goals for your maintenance matter.
At ACM Legal, we practice only in this area and are dedicated to assisting parents both in application of and in defence of an Adult Child Maintenance claim in the most time and cost-effective manner.
The team at ACM Legal are passionate about early dispute resolution, seeking to assist the parties to negotiate a settlement at an early stage before proceeding to litigation.
ACM Legal have the expertise in this area of law to assist you in the most cost-effective way.
We offer a fixed fee service so that clients do not receive ‘bill shock’ from their legal bills. Our fixed fees are listed on our website.
We have assessed a common pathway from the initial consultation through to trial and set realistic fees at each stage of the process so that clients can see the cost-benefit analysis at each stage.
The ACM Legal team will keep you informed at all stages as to the viability of your matter and whether the fees remain realistic.
Payments can be for a short period of time, such as until the adult child has completed the course of education. Or, they can be for a longer period, such as when the child has a long-term disability. There are many circumstances that will end a maintenance order, such as when the child is no longer dependent on the payee parent, or where the child becomes independent.
Where a child has a life-long disability, a parent may apply for a further maintenance order after the first order has ended, if the child remains dependent and the eligibility criteria are met.
A child maintenance order ceases to be in force if the Registrar makes an administrative assessment of child support for the payer, payee and child concerned (Child Support Assessment Act 1989, section 152)
Under the Family Law Act 1975, a child maintenance order will end: (two of many conditions)
Any person entitled to apply to a court for a child maintenance order can apply to the court for a variation to an existing order (Family Law Act 1975, section 66S).