Can Children Get Child Support when they turn 18?
The HSC is over. No more paying for excursions and uniforms.
It is an exciting time for you and your 18-year old child. Officially, your child is now an adult.
The Federal Circuit Court and Family Court of Australia make Orders for children until they turn 18 years old. The Court does not make orders for Child Support where an assessment can be sought under the Child Support (Assessment) Act 1989.
It is the Department of Human Services, formerly the Child Support Agency, which administers Child Support.
When a Child turns 18
You are probably thinking that along with fees for schooling and extra-curricular activities you will not have to pay Child Support any more when your child turns 18.
In general terms, this is correct. However, this is not always the case.
If your child has a special disability or is unable to support his/her or their education then a parent may seek extra Child Support to allow that child to complete tertiary studies whether at university, for vocational training or to complete an apprenticeship.
Child Support and Departure Applications
If you are paying Child Support you will be aware that Periodic Child Support is the amount of child support that you pay on a regular basis. This is worked out in relation to your income and the amount of time the children spend in your care.
You may also be liable for non-periodic Child Support such as paying for private school fees.
Alternatively, you may have come to an agreement with your ex-partner where you finalised a lump sum payment in a Binding Child Support Agreement.
If either you or your ex-partner do not agree with an assessment, you can make a Departure Application to the Department of Human Services.
Child Maintenance
Your ex-partner or child may initiate proceedings for you to continue to pay “Child Support” stating that they do not have the financial capacity to complete a tertiary education or other qualification.
If you are ordered to provide financial support for a child aged 18 years or older, you will be paying Adult Child Maintenance.
Either parent, the child, a grandparent or any person who is concerned with the “care, welfare or development of the child” can commence a child maintenance proceeding.
The Family Law Act further outlines the circumstances when a Child Maintenance Order may be made. The Court can only make such an order under limited circumstances: to enable a child to complete education or if a child has a mental or physical disability.
What does the Court Consider?
The child or the person bringing the application must demonstrate that they do not have the capacity to earn sufficient money to support them while they complete their studies or because of their particular disability.
The Court then needs to look at how much financial support is required by the child and the financial capacity of each parent to pay that amount. The child may have been awarded a scholarship which covers the university fees. However, they may still need additional financial support for accommodation and other living expenses.
When assessing the capacity of a parent to pay, the Courts also look at how much the parent is paying to support other children in the family.
The Courts may also consider the likelihood of a child passing exams and achieving the tertiary qualification.
In circumstances where an adult child has a disability or specific need then the expenses associated with the disability will be considered when making an Order for Adult Child Maintenance.
The Adult Child’s Earning Capacity
If the child has the capacity to earn an income to meet their living expenses then a Child Maintenance Order may not be made.
Case law demonstrates that the Courts consider a full-time student capable of earning an income to meet their expenses and should not necessarily expect their parents to continue to support them.
In one case, although the Court did make an order for Adult Child Maintenance, the amount was reduced because the children refused to take on casual employment while studying.
Will it ever end?
Where the financial support is for a child to complete tertiary studies, when the degree or appropriate qualification has been completed, the financial support is terminated. It is not open-ended.
Useful Link
The Federal Circuit and Family Court of Australia has issued on 1 September 2021 (updated 7 July 2022 and 28 November 2022) a Practice Direction which helpfully sets a summary of the steps you will need to take in seeking child support and child maintenance orders. It can be found at:
Please be advised our office will be closed from 5:00pm on 16 December 2022 and reopens at 8:30am on 9 January 2023
This article is for information only and does not constitute legal advice.