It is possible to receive payments from your former spouse for your adult child (that is, a child who has attained the age of 18 years). This is referred to as ‘adult child maintenance’.
Section 66L of the Family Law Act 1975 provides the Court with the power to make an order for the financial maintenance of a child over the age of 18 years, provided that:
- The child requires financial support for the purposes of completing their education or qualification; or
- The child has a serious illness; or
- The child has a physical or mental disability.
Case Study: Everett & Everett [2014]
Let’s consider the Full Court Decision in the case of Everett & Everett.
In this case, an adult child maintenance order was made which required the father to make weekly payments, as well as a one-off lump sum of $10,000 to enable the child to purchase a motor vehicle for transport to and from university. The adult child had ongoing significant health issues.
The father appealed this order, on the basis that there was no ‘warm relationship’ between him and his adult daughter, and that the lump sum order was unreasonable. The Court considered several issues.
1. Medical expenses
The Court held that the father was required to contribute financially towards the child’s ongoing health issues, including payments for private health insurance, and any gap expenses payable to any medical practitioner.
2. Lump-sum payment for new car
The Court set aside the lump sum payment, holding thatthe purchase of a new car for the adult child to get to university does not amount to a necessary expense, when other means of transport are available.
3. Nature of relationship between parent and adult child
The Court held that it is not necessary for there to be a ‘warm relationship’ between the parent and child for adult child maintenance to be ordered. The relationship between parent and child is only relevant if the maintenance order would cause undue hardship to either parent or adult child.
4. Education
The Court held that the term ‘education’ is defined broadly, and can include:
- Secondary education;
- Tertiary education (including university or any vocational course);
- TAFE courses;
- Apprenticeships.
It is interesting to note that the child’s likelihood of success in completing the course is taken into account when considering whether or not an order for adult child maintenance should be granted. This avoids a parent paying ongoing adult child maintenance for an indefinite period, due to the child’s inability to complete their chosen course.
It was also determined that adult child maintenance payments should cease once the child has become qualified for employment. In another case regarding adult child maintenance, a child unreasonably refusing to accept an offer of casual employment during a university holiday period led the Court to reduce payments (Wadsworth & Wadsworth (2013) FCCA 2043).
Extent of serious illness, physical or mental disability
There is uncertainty as to the limitation of adult child maintenance in situations involving children with a serious illness, physical or mental disability. It appears, however, that the main consideration for the Court is whether the child is incapable of supporting themselves due to the dependency of their condition.
Are my financial circumstances relevant?
Yes. The Court will consider your financial circumstances and the financial circumstances of the other parent when determining an application for adult child maintenance. One parent may not be capable of contributing financially to the adult child. The Full Court in Everett & Everett held that if the order for adult child maintenance will result in undue hardship being inflicted on one parent, the order will be refused.
How much financial support will I receive?
The amount of adult maintenance that may be paid to you will depend on several factors, including:
- The adult child’s ‘necessary expenses’;
- Your financial position and the financial position of the other parent;
- How much money you need to support yourself and your adult child.
If you cannot reach agreement with your child’s parent, the Court can decide how much is to be paid by way of adult child maintenance.
What are considered necessary expenses?
This can include costs for the adult child, such as:
- Food;
- Household supplies;
- Accommodation costs;
- Transport;
- Study related expenses, including books and TAFE fees (not including HECS or government loans);
Medical needs; such as doctor’s fees, optical, dental, or other medical expenses.
The Court has held that the following expenses generally do not amount to ‘necessary expenses’:
- Car expenses (see above discussion in Everett & Everett);
- Entertainment;
- Social expenses.
How do I arrange maintenance payments?
Adult child maintenance payments can be arranged informally between parents and the adult child. Alternatively, you can apply to the Court to have the agreement filed as a Court Order by Consent (agreement). We can assist you if no agreement can be reached.
Before initiating Court proceedings, you can arrange family dispute resolution. Your adult child can apply to the Court for adult child maintenance. However, in our experience, parents prefer to do this on their behalf.
How do I receive payments?
If the Order is between both parents: the Order can be registered with the Department of Human Services (Child Support). The Department will then collect payments from the paying parent and forward it to the other parent.
If the Order is between child and parent: this cannot be registered with the Department. Instead, a private agreement must be arranged between the paying parent and adult child.
What happens if the paying parent refuses to obey an order for adult child maintenance?
If a Court order is not obeyed, please contact us and we can take action for you to receive the payments. This is done by way of an Enforcement Application. If the Order is registered with the Department of Human Services, they can enforce the payments on your behalf.
How do payments cease?
Adult child maintenance orders will cease if the adult child:
- Becomes married;
- Is living in a de-facto relationship;
- Completes his/her tertiary education or qualification (the Court may not make an order for a second degree if the adult child decides to continue studying);
- Completes his/her secondary education and does not pursue tertiary education;
- No longer has the particular illness or disability.
What happens if my adult child’s circumstances change?
If you are receiving adult child maintenance, you must inform the paying parent if there are any changes to the child’s education, illness or disability.
