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      Adult Child Maintenance


      Adult Child Maintenance

      Adult Child Maintenance 1024 576 Dorter

      Child Maintenance Application

      Child Maintenance for children aged over 18 years

      If you are a parent with a child who is nearing their 18th birthday, you may be able to seek adult child maintenance for your child or children.

      To successfully apply for financial assistance from the other parent, you must show that the maintenance is ‘proper’ in the circumstances, meaning it is necessary to assist a child to complete his or her education, or because the child has a mental or physical disability.

      An application for adult child maintenance can be made by a parent or the child.

      An application for adult child maintenance will take into consideration two primary factors:

      1. The financial support required for the child: and
      2. Each parent’s financial capacity to pay, and the level of financial support already provided for the child and any other dependents.

      The order will cease to be in force if maintenance was granted for educational purposes and that course comes to an end. Equally, if a child is granted maintenance because of a disability and the child no longer has that disability, the maintenance will cease.

      The financial needs of the child

      An application for adult child maintenance will consider the ‘proper needs’ of the child and will consider the age of the child, the level of education being sought and the parent’s expectations in relation to their child’s education.

      A maintenance order does not necessarily impose the child’s university fees on the parents but rather considers the child’s reasonable ongoing living expenses to enable them to complete their education and will take into account the child’s income and earning capacity.

      Necessary expenses may include a contribution towards their living expenses and the purchase of textbooks and equipment. However, HELP-HECS payments for student fees are not deemed to be a necessary expense. The Family Court has previously ruled that university students can earn an income whilst studying fulltime and are capable of assisting with the ongoing costs of studying.

      For adult children with a special need or disability, expenses associated with their need or disability can also be considered.

      Examples of Adult Child Maintenance cases

      In Re AM [1], a 28-year-old daughter developed a disability as an adult requiring ongoing care which prevented her from working. The daughter sought a maintenance order against her father. The father argued that the disability must carry over from childhood for him to meet the requirement. The Court stated that there is no aged-based limitation and the disability as referred to in the Family Law Act refers to the consequence of the disability rather than the cause.

      In Charlton & Crosby [2] the mother sought financial assistance for a child over 18 who was living with her and studying full-time at university. The child was estranged from the father.

      The mother sought a maintenance order for the child’s weekly expenses arguing the child was unable to work whilst completing his studies. The father argued the child was able to work part-time and assist with his expenses.

      The court determined that the mother and father were expected to provide a ‘level’ of financial support as the child was not capable of fully supporting himself. The court ruled that because the father was estranged from the child it was not proper for both parents to contribute equally, as was sought by the mother. The court ordered that the father meet 20% of the child’s expenses.

      In O’Dempsey and Van Raay [3], the court considered the meaning of a course of education. The adult child sought maintenance from his father to transfer his pilot training course from part-time to fulltime to complete the course in 12 months. The court determined that a pilot training course is a course of education and the meaning of ‘education’ is not limited to statutory categories of education.  However, the father in this case was not ordered to pay maintenance as it took into consideration the child’s current income and his capacity to pay for the course as a part-time student.

      In FM v FM [4], a mother was unsuccessful in her application for adult child maintenance for her 19-year-old daughter who had cerebral palsy and was intellectually impaired. The mother did not satisfy the requirement that her daughter was unable to work in any capacity or was unsuitable for employment.

      In Wadsworth and Wadsworth [5], a father successfully overturned an order for adult child maintenance for his twin sons on the basis that they refused to work whilst completing their university degrees. The judge found that the children’s refusal to work justified a reduction in maintenance.

      The Full Court in Everett & Everett [6], considering an appeal against an order made for adult child maintenance, made the following observations:

      1. It is not a necessary element, before adult maintenance can be ordered, that there be a warm relationship between the parent and the child;
      2. An application for an adult child maintenance order should not include a detailed examination of the relationship between the child and the respondent; however
      3. The attitude or behaviour of the child to the respondent could be a special circumstance which, if not taken into account, would result in an injustice or undue hardship.

      If you have any questions about adult child maintenance or would like to know if your child could obtain financial assistance as an adult, please contact us on (02) 9929 8840.

      Tim Russell

      Rebekah Dorter

      [1] Re AM (Adult Child Maintenance) (2006) FLC 93-262.

      [2] Charlton v Crosby [2010] FMCAfam 207.

      [3] O’Dempsey and Van Raay (1990) FLC 92-178.

      [4] FM v FM (1997) FLC 92-738.

      [5] Wadsworth & Wadsworth [2013] FCCA 2043.

      [6] Everett & Everett (2014) FLC 93-604.