What is Adult Child Maintenance?
A child over the age of 18 may be able to receive financial support from a parent. Adult Child Maintenance can be considered if the child is completing their secondary or tertiary education, has a serious illness or has a physical or mental disability. The child will not be able to get Adult Child Maintenance if they are married or living in a de facto relationship. The Federal Circuit and Family Court (‘the Court’) has the power under section 66L of the Family Law Act 1975 to order Adult Child Maintenance.
Who can apply for a child maintenance order?
An Adult Child Maintenance Order can be applied for by:
- either or both of the child’s parents; or
- the child; or
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
How to apply for Adult Child Support Maintenance?
An application should be first sought under the Child Support (Assessment) Act 1989. You can apply for maintenance through Services Australia (Child Support).
The Court also has the power to make child maintenance orders pursuant to the Family Law Act 1975, but only where a party cannot apply for child support under the Child Support (Assessment) Act 1989.
What is considered when determining whether financial support is necessary for an adult child?
In deciding what support is ‘necessary’, the Court will consider, the proper needs of the child, and the income, earning capacity, property, and financial resources of the child. Those ‘necessary expenses’ can include:
- the adult child’s share of food, household supplies, utilities, housing and transport;
- educational expenses – books, electronics and tuition fees; and
- doctors/specialists fees, prescriptions etc.
What is considered when determining the contribution that should be made by a parent
In determining the contribution from each party, the Court will consider:
- their respective income, property and financial resources;
- any commitments to maintain themselves or another child they have a duty to maintain;
- the direct and indirect costs incurred by the party living with the child in providing care for the child; and
- any special circumstances which, if not considered, would result in injustice or undue hardship to any person.
When considering an order for a child undertaking tertiary education, the Court would consider the following:
- Whether the course pursued by the child is going to help the child earn an income;
- Whether the child appears to be qualified and able to gain financial derivatives from the course;
- Whether the child has scholarship assistance or other income streams;
- What hardship would result to the child if they had to abandon the Court through lack of means; and
- Whether the parent asked to pay has the means to assist.
When reflecting on ‘proper needs’, these do not specifically extend to course fees and educational expenses; instead, these needs are those that would be seen as reasonably necessary to enable the child to complete their education, such as accommodation and food expenses.
Relevant case law
MASTERTON & ANOR [2012] FMCAfam 913
- Adult Child Maintenance – Father ordered to pay $1,000 per semester for the adult son’s tertiary education.
- In Cosgrove (1996) FLC 92-700 Warnick J considered that the following matters were likely to bear upon the exercise of the discretion to make a maintenance order in respect to a child over eighteen years of age:
(i) whether the relationship of dependence between the child and parents had ceased and the application amounts to a restoration of that dependence;
(ii) the period between the initial end of dependence (if any) and the application;
(iii) whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself;
(iv) other assistance, benefits or education which the child has received;
(v) the ability of the child to complete the course in question;
(vi) the likelihood of the child completing the course in question;
(vii) the financial capacity of the child to maintain himself/herself to the completion of the “education”;
(viii) the financial circumstances of those persons responsible for support of the child (generally the parents);
(ix) the filial relationship between the child and the person from whom maintenance is sought.’
“In my view, the most salient factor in this regard is Mr M’s own income earning capacity.”
BALLANTYNE [2015] FCCA 500
- Adult Child Maintenance – Backdated order for the father to pay $230 per week for the maintenance of a disabled adult child despite the child’s bank savings of $85,000.
- The order was made for three years.
EVERETT [2014] FamCAFC 152
- Father tried to appeal the decision of Adult Child Maintenance because he did not have a relationship with his daughter.
- “It is not a necessary element, before Adult Child Maintenance can be ordered, that there be a warm relationship between the parent and the child.”
- However, the lump sum order to enable the child to buy a car to get to and from the university was set aside as does not amount to a necessary expense when other means of transport are available.
- He was still required to pay weekly payments to contribute financially towards medical expenses and education.
Check out other interesting articles: