• Benjamin Kirsteuer

Adult Child Maintenance: Continuing Obligations your Child Deserves

Updated: May 1, 2021

What does your child mean to you? Most people in my experience answer with a resounding “everything!”. It is important that we ensure that children are supported by of their both parents as much as reasonably possible to allow them to be who they are and flourish.

Children require support and assistance to grow and develop into young adults, but we must keep in mind that financial support required by children can often continue past their 18th birthday. It almost goes without saying that a child’s need of financial support most certainly continues post separation of their parents. It is important that both parents contribute to the maintenance of their children and this is not simply left to the primary caregiver.

I started my work life as a nurse assistant in an institution. I cared for children and adults who were abandoned and hidden away behind the confines of the facility. I spent more than 20 years working in the disability and mental health sector and fortunately, I have witnessed how much this sector and the greater societal norm has changed and continues to change for the better. We need to ensure that each and every individual is supported and given hope and opportunities to realise their dreams and aspirations.

The best interests of the child are of paramount concern in family law matters, the entire Family Law Act 1975 (“the Act”) is founded on this, so much so that this is regarded as the paramountcy principle. Adult child maintenance is an area of family law that empowers the court to make orders that give some certainty to a child beyond the age of 18, ensuring that they are financially supported by one or both parents and or their stepparent/s. Adult child maintenance is often sought as an extension to existing child maintenance orders, as the latter typically ceases to operate upon the child turning 18 years of age, unless the orders specifically state otherwise. This can create serious issues and gaps in expenses for a parent’s financial support of their child, which is particularly true for the parent who is the primary caregiver.

Such orders can be applied for by the child themselves, a parent or both parents, a grandparent of the child or any other person concerned with the care, welfare, or development of the child. An order for adult child maintenance can be made by the court if satisfied that the adult child requires the necessary support to complete their secondary education, or due to the child having a mental or physical disability.

The court may order that one or both parents, or the child’s stepparent/s (“contributors”) contribute to the necessary support of the child for either a specified period, specified obtainment or until the child or the person paying support passes away. For example, it may be agreed that non-caregiving parent will contribute financial support to their child until they complete their bachelor’s degree. Before an order is made the court will consider the child’s age, how the parents’ expected the child to be educated and trained, the special needs of the child, the child’s income, earning capacity, property and financial resources, including any assets held for the benefit of the child that is capable of producing an income. Notably the court must disregard any entitlements, pension, allowance or benefit of the child or any other person.

The assessment as to the proper level of support that each contributor must reasonably and adequately provide their children is generally determined by assessing their income, earning capacity, property, and financial resources, including their requirements to support themselves or another person, the direct and indirect costs incurred by the “live with” parent (primary caregiver) and any special circumstances that if not considered, would cause undue hardship or injustice to any person.

As the orders can be negotiated outside of court, we can refine the proposed orders to be individualised and tailored to the child in need. This means that we can ensure that children with varying abilities can rest assured knowing that their personality, habits, quirks, dreams, and goals have been considered and are protected. Please speak to one of our expert family lawyers on the option which is best suited to your needs.

03 9117 6189 | admin@galeafaustinsolicitors.com.au

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