Typically, child support is only payable until the relevant child becomes a legal adult. That is, the day the child officially turns 18, any child support agreement becomes void. However, there are two main exceptions to this rule found under section 66L of the Family Law Act 1975 (Cth) (‘the Act’), where child support can continue after the child turns 18.
They are as follows:
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- The child is completing secondary or tertiary education; or
- The child has a mental or physical disability.
The Child is Completing Secondary or Tertiary Education
If the child turns 18 during their final year of high school, the parent receiving child support payments can apply to the Department of Human Services (Child Support) (‘DHS’) to extend the support until the end of the year. However, this application must be done before the child turns 18. This can be completed by either the child or the care giving parent.
In relation to tertiary education, however, the exception is not so straight-forward. Currently, there is no legal obligation to provide financial support to a child undergoing a post-graduate degree.
However, if payment is deemed necessary under the circumstances of the case, maintenance can be provided for any course completed at TAFE or University, or as part of an apprenticeship or vocational course.
According to Everett v Everett (‘Everett’), the payments are necessary if they are substantially required by the child and it is reasonable to require the parent to contribute in light of the parties’ financial and other related circumstances. These payments need not be absolutely essential to be considered ‘substantially required’.
Further considerations that can be made are as follows:
- There must be a reasonable possibility of the child succeeding and finishing the course they wish to undertake.
- The course must be appropriate in assisting the child in becoming independent.
- A child’s entitlement to a government student allowance will not be considered when assessing adult child maintenance applications.
- It does not matter if the child is completing multiple degrees or has been able to undertake prior studies without extra financial support.
- The expenses that require adult maintenance must be necessary for the completion of the child’s study.
The Child has a Mental or Physical Disability
To be eligible for adult child maintenance due to circumstances of a mental or physical disability, the child must be so dependent that they are unable to support themselves. Medical evidence must be presented to prove they cannot provide their own income.
The amount of maintenance paid depends on the following key factors:
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- The child’s capacity to earn their own income
- Each parent’s capacity to contribute financially
- The child’s necessary living expenses
How the Courts Assess the Appropriateness of the Child Support Claim
When determining whether to grant child support and in what amounts, the test is an objective one, in that the amounts must be objectively reasonable in the particular circumstances. Necessary expenses for the child include learning equipment and any expenses associated with special needs, but do not include HELP or HECS expenses.
There is an expectation that the child will contribute money to their expenses by way of part- time or casual work if they are capable.
When assessing the parent’s capacity to contribute, their income earnings and their other commitments will all be considered (Bienke v Bienke-Robson (1997) 23 Fam LR 569, 572). This includes any other children they have and/or need to support.
It does not matter how strong or warm the relationship is between the child and the parent making support payments. Under section 66J(1) of the Act, there is no consideration made for the relationship between the child and the parent unless it is a very special circumstance under section 66K(1)(e). However, the courts have been known to lightly consider: how estranged the child is with their father/mother, if the parent will be able to enjoy the child’s academic achievements, if the parent helps with the child’s academia, and if the parent will receive gratitude for the financial support.
Essentially, an estranged parent can be required to pay child maintenance after the child reaches 18 years of age, even if their relationship is limited or there is no relationship between them at all. If the parent wishes the Court to take into account their lack of relationship with the child when making a decision, they must prove failure to do so would result in injustice or undue hardship to themselves or someone else.
How to ensure the child support is actually paid
For the maintenance to be legally binding, the parent or child must apply for a Court Order which sets out the amount of adult maintenance that needs to be paid. Once granted, the parties may then apply to the DHS to register the Court Order.
This makes the child support registrar obliged to enforce the order. If any circumstance changes regarding either parties’ income earning capacity, the child’s education or any other relevant circumstance change, the DHS must be notified to update or adjust the plan accordingly.
Alternatively, if both parents can reach a consensual agreement outside of court, they may submit an application for consent orders. This means the parties are not bound by the s 66L exceptions and can extend the child support payments on any terms they can both agree upon so long as they are still reasonable.
These Orders can also be registered with the DHS.
If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.