Whilst family lawyers may spend many hours working for clients with children under 18 concerning maintenance payments, it often comes as a shock to some clients when they are told by their family lawyers that maintenance payments can also be ordered by the Family Court for children over 18 years of age.
It is an assumption, not just in Australia, but in most countries that, when a child turns 18 they are considered an adult, and thus any child support or maintenance payments by the absent parent are no longer required to be paid. In fact, in Australia, they can end before a child turns 18 if, for example, the child marries, is adopted, or becomes financially self-sufficient.
However, as family law currently exists, an application can be made for “adult child maintenance”, and this is contained in the Family Law Act, Section 661. We must state at the outset that applications cannot be made simply because an adult child continues to live with one of their parents who happens to be divorced, but instead only when one of several specific circumstances exists.
Circumstances In Which Adult Child Maintenance Can Be Ordered
As we have mentioned, adult child maintenance is not simply granted because a divorced parent wants financial assistance to help feed their adult child. Once they turn 18, an adult child is not usually subject to orders from the Family Court given that legally they are considered an adult, and that applies also to financial matters such as child support.
However, family law does recognise that there are a narrow set of circumstances where it would be appropriate for the adult child’s absent parent to make a financial contribution. The circumstances that apply are:
#1 – The adult child suffers from a serious illness
#2 – The adult child has a physical disability
#3 – The adult child has a mental disability
#4 – The adult child is in secondary or tertiary education and wishes to complete their education
For #4, “Education”, secondary school, college, private college, and university are all regarded as valid education centres. Some apprenticeships may also be regarded as education to grant adult child maintenance.
Agreement vs Court Order
As with divorces, if a couple can agree on the basis for and the amount payable in relation to adult child maintenance then they can outline their agreement in writing and submit this to the Family Court for approval. This is called an “adult child maintenance court order”. This agreement can also be made between the adult child and their absent parent.
Where no agreement exists between the parents, then either the parent seeking the adult child maintenance, or the adult child, needs to make an application to the Family Court against the absent parent for an adult child maintenance order. This can be done if the child is 17 on the basis that it comes into effect when they turn 18 or can be done any time after they turn 18.
Calculating How Much Adult Child Maintenance Is Payable
The amount of adult child maintenance that is payable takes several factors into account. The first is that the contribution made is designed to cover the necessary expenses of the adult child. Obviously, this will vary depending on the reason the adult child maintenance is being grated. For example, for education, it can be for books and study materials, whereas for a disabled child, it could be for medical expenses and therapies.
Another factor that is considered is any income that the adult child earns. There is an expectation that adult children will make some form of contribution to their financial needs if they can, such as securing a part-time job. That obviously would not apply to adult children with disabilities.
The third factor that is considered is the financial position of each of the parents including their income, expenses, and other finical resources they might have. In addition to this, how much each parent needs to care for themselves and others they are responsible for, such as their other children, is also used in the calculation.