Can one parent force the other to pay school fees?

Whether or not a parent should be forced to contribute to the costs of private school fees, and in what proportions, is not clear cut.  In deciding this issue, the Court will have regard to a number of different factors set out in the legislation, but often the most important issues are:

• Whether there was an intention or agreement, or a reasonable expectation, that the child would attend the particular school, or a similar school.  An example of this might be a pre-separation enrolment in the relevant school.

• Whether there is some reason relating to the child’s welfare, such as some specific need to attend that school, or that type of school. 

• Whether the party being asked to contribute to the school fees can reasonably afford to do so.  It would generally (but not always) need to be shown that they can meet that expense from their income.

If the Court Orders a parent to contribute to school fees, another issue is whether those payments or some part of them should be offset against any periodic child support that parent is assessed to pay.  This issue would usually be dealt with at the same time, and largely depend upon the financial circumstances of the parties and the costs of the particular children.

Can one parent force the other to pay for ‘elective’ medical procedures, such as orthodontics?

When deciding whether to order one parent to pay for, or contribute to, medical expenses for a child, the Court must take into account a number of different factors.  As with the issue of school fees however, there are several factors that often assume importance, namely:

• Whether there was an intention or agreement, or a reasonable expectation, that the child would undergo the particular procedure.

• The consequences of the child not undergoing the relevant procedure.

• Whether the party being asked to contribute to the costs of the procedure can reasonably afford to contribute to the costs of the procedure.

As with the issue of school fees, the fact that a party is very wealthy will not, in and of itself, necessarily lead to a finding that they should contribute to medical costs such as orthodontics.  That will however, be a relevant matter when looking at whether there was a reasonable expectation that the child have the relevant medical procedure. 

Children over 18 years old

The child support regime generally does not apply to children over the age of 18 years, save for the remainder of their final year in secondary school.  

There are some circumstances however where the Court can order ongoing ‘maintenance’ for children over the age of 18.  These are where maintenance is necessary:

• To enable a child to complete their education; or

• Because of a mental or physical disability of the child.

When deciding what maintenance, if any, is proper, the legislation provides for a two-stage approach as follows:

• The first is to assess what financial support is necessary for the particular child. Here the Court looks at a number of factors including the age of the child, the manner in which the child is, or is expected to be, educated or trained, an special needs of the child, and the income, earning capacity, property and financial resources of the child.

• The second step is to determine what contribution, if any, should be made by each parent to the necessary financial support identified in the preceding paragraph. At this point, the Court looks at (among other things) the income earning capacity, property and financial resources of each parent, their other necessary commitments, and the costs they incur while the child is living with them.

The overarching principles the Court has regard to when deciding what order, if any, to make for adult child maintenance is to ensure that children have their proper needs met, and that the parents share equitably (fairly) in those costs.