A recent New Jersey family law case has made international headlines after 18 year old Rachel Canning sued her parents for financial support, claiming her parents 'abandoned her'.
In this Alert, Partner Alison Ross and Associate Leeann Murphy discuss this case and address the question: "At what point do a parent's financial obligations to their child cease in Australia?"
Background on US case
In response to 18 year old Rachel Canning's law suit for financial support, her parents denied the claims, saying she left voluntarily after being given an ultimatum between either dumping her boyfriend and following house rules, or leaving the house.
The teenager's application sought that her parents pay her outstanding school tuition fees, her future college education, US$650 a week in maintenance for her living expenses and her legal fees. Judge Bogaard rejected the teenager's request for temporary financial support in the first round of hearings, suggesting it could lead to a 'slippery slope' of claims by disgruntled teenagers against their parents.
Ultimately, Rachael moved back home, resolving the issue on a final basis. But what if this had occurred in Australia?
Key points
- In Australia, the Court can order one or both parents to provide financial support to a child over the age of 18, provided certain circumstances are met.
- Expenses associated with the course of study may also be covered (although HECS, Austudy loans and other government loans are typically excluded).
- Applications for adult child maintenance to cover the costs of an adult child's mental or physical disability hinge on whether the child is in such a dependent condition as to be incapable of supporting themself.
Adult child maintenance in Australia
The Child Support Agency regulates parents' financial obligations for their child until the child turns 18 years of age. However, many parents may be surprised to learn that a parent's financial responsibility for their child does not necessarily cease when a child reaches the age of 18.
In Australia, section 66L of the Family Law Act 1975 provides the Court can order one or both parents to provide financial support to a child over the age of 18 (adult child maintenance) if necessary:
- to enable the child to complete their education (including tertiary education, vocational training or an apprenticeship); or
- because of a mental or physical disability of the child.
An application for adult child maintenance can be made by an adult child, a parent, a grandparent or any other person concerned with the care, welfare or development of the child.
Where the application is for maintenance to enable an adult child to complete their education, the Court will consider a number of factors, including:
- the income, earning capacity, property and financial resources of the parents;
- the amount the parents need to support themselves or other children the parent has a duty to maintain;
- the capacity of the adult child to earn an income (although any entitlement to government income and allowances is disregarded);
- whether the course to be pursued by the child is going to help the child earn an income;
- the likelihood that the adult child will finish the course of study;
- the hardship that would result to the child if they have to abandon the course through lack of means; and
- the attitude of the adult child towards the parent.
The Court can also, in its discretion, consider the closeness of the relationship between the child and the parent and, in this regard, the Court is more likely to award adult child maintenance in circumstances where their filial bond is significant.
Recent cases
Recent case law has provided some examples of the Court's approach:
- In the case of Hampson & Bailey [2013] FCCA 1004, a father was ordered to pay $375 per week (which constituted 50 percent of her total expenses) to his 21 year old daughter to complete her tertiary undergraduate degree despite the breakdown of the relationship. The application sought assistance in relation to post–graduate studies, however the Court considered it was not necessary for a parent to provide maintenance for post-graduate studies or a Masters degree.
- Conversely, in the case of Charlton & Crosby [2010] FMCAfam 207, the Court ordered the father contribute to only 20 percent of the child's expenses, since he had been estranged from the child for the past six years. The Court noted that the father would not receive any 'thanks' for the support and would not be able to enjoy the child's academic achievements. The Court ordered the payment be made in a lump sum with the money being released in instalments due to the animosity between the parties.
- In the case of Wadsworth [2013] FCCA 2043, the Court ordered that the adult children's decision not to actively seek any casual or part time employment during university study was a relevant factor in determining the quantum of adult child maintenance payable. The Court reduced the maintenance payable from $1,250 per month to $1,000 per month upon being presented with evidence that the adult children unreasonably refused to accept an offer of casual employment during their university holiday period.
The Court will only award maintenance 'necessary' to enable the child to complete his or her education. This has previously included accommodation costs, food, clothing, toiletries, haircuts, telephone, medical and dental expenses, and motor vehicle expenses.
Expenses associated with the course of study, such as internet fees, computer equipment and study costs may also be covered. However, HECS, Austudy loans and other government loans are typically excluded, as they are not an immediate expense incurred by the adult child and can be deferred to a later date.
Where disability is a concern
In relation to applications for adult child maintenance to cover the costs of an adult child's mental or physical disability, the question asked by the Court is whether the child is in such a dependant condition as to be incapable of supporting themself.
The Court has been more reluctant to award adult child maintenance on the basis of a disability due to the longevity of any such order as outlined in the following case:
- In FM and FM (1997) FLC 92-738, a 19 year old child with cerebral palsy and associated intellectual impairment was denied adult child maintenance on the basis that there was no evidence to establish she was totally unsuited for any employment. Despite the child's 'mobility' and 'intellectual impairment' being significant restrictive factors in gaining employment, the Court found she might be suited to undertake simple packaging work in a supportive atmosphere. The Court was critical of the child's lack of attempts to gain employment.
- On the other hand, in Re: AM (Adult Child Maintenance) (2006) FLC 93-262., a 28 year old who was diagnosed at age 21 with urticarial vasculitis arthritis (a degenerative disease that prevented the applicant from working) was awarded periodic maintenance for five years, which could then be reviewed. The Court noted that a person could still be eligible for adult child maintenance even if the disability arose after the child's 18th birthday.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
