Adult Child Maintenance: What is it?

In Australia, both parents have a duty to financially support and properly maintain their children until the age of 18. Child support is the payment from one parent or carer to the other parent or carer for the benefit of the child.

Child support payments are typically determined by:

1. An assessment by the Commonwealth Government Department known as Services Australia (which includes what is colloquially called the Child Support Agency); or
2. A private agreement between the parents, which may or not be formalised in a Child Support Agreement.

For more information about child support assessments and Child Support Agreements, see here Child Support: What do I need to know? | Coulter Legal

However, in some situations, a parent may be required to financially support the other parent even after a child turns 18. This is called Adult Child Maintenance. Whether or not a parent is required to pay the other parent Adult Child Maintenance is determined by the Federal Circuit and Family Court of Australia (the Court).

Who can apply for Adult Child Maintenance?

Either the parent or the child can apply for an Adult Child Maintenance order against the other parent/s. In some circumstances, a grandparent or a person concerned with the child’s care, welfare and development may also apply for an Adult Child Maintenance order. A “warm familial” relationship is not required.

The application for an Adult Child Maintenance order can be made once the child that is subject to the order turns 17, however if an order is made for the parent to pay Adult Child Maintenance it will not commence until the child turns 18.

When will a Court make an Adult Child Maintenance order?

Section 66L of the Family Law Act 1975 (Cth) states that a Court must only make an order for Adult Child Maintenance if it is satisfied that the payment of maintenance is necessary:

• To enable the child to complete his or her education (this includes tertiary education and/or an apprenticeship); or
• Because of the disability of the child.

Even if one or both of the above is satisfied, the Court will not automatically make an Order for Adult Child Maintenance. The power is discretionary.

There are several factors a Court will consider when determining whether an Adult Child Maintenance order is necessary. This includes, but is not limited to, the following:

1. The financial needs of the child. This includes, but is not limited to:
   1. Food;
   2. Housing;
   3. Transport;
   4. Education fees (including school books);
   5. Doctor fees;
   6. Medication;

2. The financial circumstances of both parents (e.g., income, property owned, financial resources, personal expenses, expenses they pay for any other children/financial dependents);
3. Whether the child is able to financially contribute to their own expenses – such as working while studying;
4. If a child has a disability, whether the child’s disability means they cannot, and potentially may never be able to, financially support themselves.

After considering the above, the Court may make an order that requires one or both parents to pay the other parent or adult child such sum as is reasonable necessary in the circumstances of the case. In one case, the payment of HECS fees was not considered reasonably necessary given the payment is based on income and debt owed to the Commonwealth.

How long do you need to pay Adult Child Maintenance for?

Adult Child Maintenance starts when a child turns 18 unless otherwise stated by the Court. The Court has discretion to order one parent pay Adult Child Maintenance for as long as they deem it necessary.

Usually, the Court will order that Adult Child Maintenance stops when:

1. The child finishes their studies;
2. On a set date – e.g., when the child turns 25;
3. The child no longer has a mental or physical disability.

End dates for children that have a disability can be difficult for a Court to determine given the complexities that some disabilities present – particularly if a disability is permanent.

Summary

In summary:

1. The Federal Circuit and Family Court of Australia has the discretionary power to order a parent/s pay Adult Child Maintenance to the other parent/adult child after children turn 18.
2. The Court must not make an order for Adult Child Maintenance unless:
   1. The child is studying; or
   2. The child has a disability.

3. If the child is studying or has a disability, when determining whether an order for Adult Child Maintenance is necessary, the Court will consider, among other things:
   1. The financial needs of the child;
   2. The financial circumstances of both parents;
   3. Whether the child is able to financially contribute to their own expenses;
   4. The severity of the child’s disability.

4. An order for Adult Child Maintenance will end at the discretion of the Court. Adult Child Maintenance typically stop:
   1. When the child finishes their studies; or
   2. Obtains a specific age; or
   3. When they have recovered from their disability (if recovering is possible).

How we can help

It is important to seek legal advice before starting negotiations or issuing proceedings regarding Adult Child Maintenance. The Family & Relationship Law Department of Coulter Legal can navigate the process, appear on your behalf and advise on the likelihoods of success and legal costs to help you work through the options.