What is the difference between adult child maintenance and child support?
People commonly use the terms “child maintenance” and “child support” interchangeably in Australia. There is, however, a distinct difference between these payments, how they apply and what they achieve.
What is child support?
There is a requirement for parties to support children, regardless of the living arrangements in place for the children. Under section 73 of the Family Law Act (Cth) 1975, parents, according to their respective financial resources, are liable to maintain the children often called ‘child support‘.
You can calculate child support one of two ways:
- Parents can make a private child support agreement regarding the amount of child support to be paid; or
- One parent can make an application to the Child Support Agency for an independent administrative assessment. This assessment takes into account the circumstances of the couple and may change as those circumstances change over time.
Child support legislation only applies to children under the age of 18 years of age, after which it is called adult child matienance
What is child maintenance or ‘adult child maintenance’?
Adult child maintenance is similar to child support. However, an order cannot be made for child maintenance if the child support legislation is applicable. A parent can seek adult child maintenance for a child that is over the age of 18, and who has financial needs due to their ongoing tertiary education or some mental or physical disability.
What factors are considered in an application for adult child maintenance?
The court considers the following factors when assessing an application for a child maintenance order:
- The age of the child;
- Any special needs of the child;
- The income, financial earning capacity, property and financial resources of the child; and
- How the child is being, and in which the parents expected the child to be, educated or trained.
Subject to section 76(3), a child maintenance order for a child over the age of 18 will be in force until a day, or period, specified in the Order if the court is satisfied that the maintenance is necessary.
How is adult child maintenance assessed?
The amount payable in a child maintenance order is at the discretion of the court’s giving consideration to determine the appropriate payable amount and providing care to the abovementioned factors. There is currently no fixed formula when deciding the proper level of financial support for an adult child. The Family Court makes decisions based on the needs of the individual child, that specific child’s capacity to earn their income and the parent’s ability to provide support.
What is ‘education’?
Court’s generally take a broad application of the definition of education. These can include tertiary university courses, TAFE courses and apprenticeships.
When considering an order for a child undertaking tertiary education, the court would consider the following:
- Whether the course pursued by the child is going to help the child earn an income;
- Whether the child appears to be qualified and able to gain finanical derivites from the course;
- Whether the child has scholarship assistance or other income streams;
- What hardship would result to the child if they had to abandon the court through lack of means; and
- Whether the parent asked to pay has the means to assist.
When reflecting on ‘proper needs’, these do not specifically extend to course fees and educational expenses; instead, these needs are those that would be seen as reasonably necessary to enable the child to complete their education, such as accommodation and food expenses.
What about the child’s income?
Further, when considering financial support for the child, the court will also take into consideration the child’s specific financial status, including the child’s income, earning capacity and property and financial resources they have. In past decisions, the Family Court had reasonably found that university students are capable of concurrently working whilst studying; however, the court did acknowledge that a full-time university student cannot fully support themselves.
What about the child’s Centrelink payments?
Income-tested benefit or allowance, such as Youth Allowance, are not counted to what is considered part of the child’s income.
How do I claim adult child maintenance?
If parents agree, parents can make an agreement or file consent orders in court.
If parents do not agree, parents can also seek orders through the courts for adult child maintenance. A court order for ongoing payments can then be registered for collection with the Department of Human Services and paid to either the parent or the child.
Can you receive lump-sum payments or instalments in an adult child maintenance order?
When deciding to Order adult child maintenance, the court has broad discretion and can consider a lump sum payment or whether payment should be by instalments. The latter is usually the more desirable option. A lump sum will most likely only granted where ‘severe pressure’ is involved.
When does adult child maintenance end?
An individual’s adult child maintenance can end due to several reasons. For example, the court may decide that the Order will cease when:
- The adult child finishes their education, for example, completes their qualification. Should the adult child wish to continue studying a second degree or qualification, the court may not necessarily make an order or continue the current Order;
- A particular time has ended. For example, the Order may only be for three years to allow the adult child to finish their education. There may be further conditions in the Order, such as proof of passing subjects, and should the child fail an issue, the Order may stop;
- The adult child no longer has a particular illness or disability, or after a specific period, for example, five years, to review the child’s illness or disability.
Further, while the scenarios above are the main focus when an adult child maintenance order may cease, there are other circumstances in which a charge will end, particularly if the adult child:
- Gets married or enters into a de facto relationship;
- Is no longer either resident in Australia, ordinarily in Australia or an Australian citizen (and there is no international maintenance arrangement that applies);
- If the parents reconcile; or
- If either parent dies.