In Australia, parents have a legal responsibility to financially provide for their children. Typically, this responsibility ends when the child turns 18 and is a legal adult who is presumably able to provide for themselves. However, there are some circumstances when a parent might continue to financially support a dependent adult child, because of disability, illness, or ongoing education. When this ongoing child support is ordered by the Federal Circuit and Family Court of Australia (the court) or the Family Court of Western Australia, it is known as an Adult Child Maintenance Order.
Child support
Services Australia (Child Support) regulates parents’ financial support for children until the age of 18. Child support is paid from one parent to the other parent for the benefit of the child. Typically, the parent who has the majority of care for the child receives the payment from the other parent, but this is not always the case. In cases where there is a significant disparity in parental income, child support may be paid even when the child resides equally with each parent.
Child support may cease before a child is 18 if the child is adopted, becomes self-sufficient, marries or enters into a de facto relationship, or passes away. If a child turns 18 before they complete their final year of secondary school, the parent receiving child support payments (or the child themself) can apply (before the child’s birthday) to extend the payment until the child completes the school year.
What are adult child maintenance orders?
There are also circumstances when a parent might need to continue to provide financial support after a child turns 18 and finishes secondary school. Section 66L of the Family Law Act 1975 allows the court to make an Adult Child Maintenance Order when the adult child needs financial support to complete their education or training, has a serious illness or disease, or has a mental or physical disability.
The court has held that the term “education” is broadly defined to include secondary and tertiary education, TAFE courses, and apprenticeships. In cases of continued education, the court balances the parents’ resources against the child’s actual and potential resources when determining the claim. In fact, the court might decide that the child has other means to finance their education, such as deferring study, enrolling part-time, or obtaining part-time work. In Wadsworth & Wadsworth (2013), the court reduced the amount of Adult Child Maintenance when the child unreasonably refused to accept casual employment during a university holiday.
If an adult child requires ongoing financial support because of medical reasons, the main consideration for the court is whether the child is incapable of supporting themselves financially because of his or her condition. When an Adult Child Maintenance Order is made on medical grounds, the end date is uncertain, as the child may never be capable of financially supporting themselves.
One consideration when it comes to the granting of Adult Child Maintenance Orders is the strength of the relationship between child and parent. There have been questions as to whether it is proper for a parent to pay financial support to an adult child when there is no relationship between the parties. The court held in Everett & Everett (2014) that when granting a maintenance order, there does not need to be a “warm” relationship between the parties, or even regular contact, but the order must be reasonable in light of the relationship between the parent and child (Wadsworth & Wadsworth (2013)).
Calculating adult child maintenance
Of course, parents can come to an agreement between themselves on adult child maintenance. However, if the parents cannot agree, either the parent or the child themselves can request that the court make an Adult Child Maintenance Order. The court has wide discretion to determine the terms of such an order. For example, the court can determine the precise duration of the order and whether the maintenance should be paid in instalments or in a lump sum.
The court assesses the maintenance amount according to various factors, including the adult child’s necessary expenses, which include food, accommodation, transport, household supplies, medical needs, and study expenses (not including HECS loans). Costs such as vehicle, entertainment, and social expenses are not generally considered to be necessary expenses.
The other part of the Ccourt’s assessment is based on each parent’s financial position. The Full Court found in Everett & Everett (2014) that it should refuse an order for adult child maintenance if it will cause undue hardship to one parent. In determining the contributions of each party, the court considers the parent’s respective income, assets, and other financial resources, any existing commitments they have, particularly to another child, the costs incurred by the custodial parent and any special circumstances that must be considered to avoid injustice or undue hardship.
The court decides whether to grant an Adult Child Maintenance Order on a case-by-case basis of what is reasonable given the specific circumstances. Find out more about Taylor Rose family law services by calling 1800 491 469.
