Adult Child Maintenance Order

In Australia, separated parents have a legal responsibility to financially support their minor children through child support and child maintenance. Parents usually pay child support until the child turns eighteen; however, they may be expected to continue financial support for their adult child when the child is still dependent because of ongoing education, special needs or disability. The Department of Social Services regulates both child support and child maintenance according to Part VII of the Family Law Act 1975, which specifies that parenting orders must be made with a focus on the child’s (or adult child’s) best interests. This article looks at adult child maintenance orders, with a particular focus on the factors that influence court orders.

Adult Child Maintenance Orders

The Federal Circuit and Family Court of Australia only makes an Adult Child Maintenance Order when it is satisfied that the adult child needs financial support to finish their education, or because they cannot support themselves due to a mental or physical disability.

As such, Adult Child Maintenance is only available to someone who:

1. is over 18 years of age
2. who in in tertiary studies or has a disability, and
3. who is no longer in the Child Support System.

There is no set formula when calculating adult child maintenance, it is up to the court to make an assessment from the reasonably relevant factors. The law tries to strike a balance between ensuring the financial stability of dependent adult children and protecting parents from unreasonable and indefinite financial responsibility for their child.

Courts are likely to consider the following factors when deciding the amount of the order:

• the adult child’s essential expenses
• any efforts the adult child is making to support themselves. Adult children in education are expected to contribute to their own upkeep by working in their free time. An adult child with a disability may be required to provide medical evidence to that effect and
• each parent’s capacity to provide financial support for the adult child, given their income, earning capacity, financial resources and other expenses.

An adult child’s essential expenses generally does not include entertainment, but does include:

• food, housing, utilities, household supplies and transport
• study related expenses such as books, computer equipment, internet usage, TAFE fees (but not government student loans such as HELP-HECS)
• medical expenses, such as doctors’ visits, optical, dental, prescriptions
• expenses relating to their disability for an adult child with special needs, and
• sometimes clothing, hairdressing, toiletries, car and phone expenses.

An Adult Child Maintenance Order will specify when the payment ceases, such as:

• when the adult child finishes their education by completing their qualification. The court may order that the maintenance does not continue if the adult child chooses to pursue further study
• at the end of a set time period, such as a certain number of years
• when an event occurs, such as if the adult child fails a course of study, or
• when the adult child no longer has a particular disability or illness that impacts their ability to financially support themselves.

Case study

One notable issue is whether an Adult Child Maintenance order is appropriate if there is no positive relationship between the parent and the adult child. Previously, the court had noted that there was no need for there to be a ‘warm relationship’ between the parent and child for the court to make an order for maintenance. Rather, it is an objective test of what is reasonable in the specific circumstances, given the parents’ resources and the adult child’s own financial position.

The Federal Magistrates Court recently addressed this question in a case where the father was asked to pay financial support to his adult son when he had no contact with him. In this case, the three children had lived with their mother since their parents separated, and there had been no relationship between the father and the adult child for the previous six years.

In this case, the court considered whether the adult child required financial support given:

• his needs, age and the parents’ expectation for his education
• his capacity to earn income
• the income, property and financial resources of each parent
• the amount of child support that the father has paid in the past
• the mother’s assertion that the eldest son was the most affected by the separation of his parents and that she did not want to push him given he had ‘crashed’ at the end of his first year of university, and
• the adult child’s weekly expenses for food, clothing, education, fares and entertainment, though not the board he paid to his mother for living in her home.

The court determined that there was a legitimate expectation in the family that the parents would financially support the children through their education to the best of their ability. However, the court did find that the adult child should provide half of his own financial needs. The court also found that the parents had similar incomes and earning potential. However, as the adult child had been estranged from the father for several years, it was not necessarily proper for the parents to provide equal support. The court noted that the father would not be involved in the adult child’s academic decisions, would most likely not receive thanks for the financial support, and could not enjoy the adult child’s academic achievements. The court therefore ordered the father to contribute 20% of the adult child’s expenses. If the adult child stopped attending university or started full-time employment, the father was to be advised, and unused amounts refunded.

For any family law advice, please reach out to Go To Court on 1300 636 846 for assistance.