Adult Child Maintenance
Child Maintenance for children aged over 18 years
If you are a parent with a child who is nearing their 18th birthday or if you are negotiating a property settlement and you anticipate that you will be required to support your child after their 18th birthday, you may be able to seek adult child maintenance for your child or children from the other parent.
Adult child maintenance is financial assistance for children over 18 years old, typically to help them complete their education or if they have a disability that limits their ability to support themselves.
This is a separate area of family law to child support.
Unlike child support for children under 18 (administered through Services Australia (Child Support)), adult child maintenance is governed by Section 66L of the Family Law Act 1975 (Cth) and must be sought through the Federal Circuit and Family Court of Australia.
Under the Family Law Act 1975 (Cth), maintenance can be ordered if it is "necessary":
to enable the child to complete his or her education, or
because of a disability of a child.
An application for adult child maintenance can be made by:
either or both of the child’s parents;
the child;
a grandparent of the child; or
any other person concerned with the care, welfare or development of the child.
In proceedings for a child maintenance order, the Court may make such child maintenance order as it thinks “proper”.
In proceedings for the making of a child maintenance order, the Court must:
1. consider the financial support required for the child; and
2. determine the financial contribution, or respective financial contributions that should be made by a party or the parties towards the financial support necessary for the maintenance of the child.
A child maintenance order made to enable the child to complete his or her education would not necessarily impose the child’s whole university fees on the parents but may impose the child’s reasonable ongoing living expenses to enable them to complete that education.
Necessary expenses may include a contribution towards their living expenses and the purchase of textbooks and equipment.
HELP-HECS payments for student fees are not deemed to be a necessary expense.
The Federal Circuit and 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.
When does a child maintenance order end?
A child maintenance order ends, unless the order provides otherwise:
1. upon the death of the child, payer or person entitled to receive payments;
2. if the child is adopted, marries or enters into a de facto relationship; or
3. if the child ceases the education, or ceases to have the disability.
Arrears of maintenance payable when the order ceases to be in force may be recovered.
Examples of Adult Child Maintenance cases
In Re AM 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 1975 refers to the consequence of the disability rather than the cause.
In FM v FM 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 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 considering an appeal against an order made for adult child maintenance, made the following observations:
It is not a necessary element, before adult maintenance can be ordered, that there be a warm relationship between the parent and the child;
An application for an adult child maintenance order should not include a detailed examination of the relationship between the child and the respondent; however
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 our family law firm on (02) 8488 7840.
