It is a common misconception that a parent's ability to ask another parent to contribute to the financial support of their child, once that child is over the age of 18 years, is limited.
When a case falls outside the scope of the Child Support Scheme, options do in fact exist under the Family Law Act (the act) enforcing the liability on parents to contribute to the financial support of the child, even if that child is aged over 18.
Pursuant to section 66L of the act, a Court has the power to make an order for the maintenance of a child over the age of 18 if it is necessary to enable the child to either complete their education or because the child has a mental or physical disability.
With respect to applications for adult child maintenance being made to enable a child to complete their education (the more common of the two types of applications), case law has resulted in the following principles being established:
- the term 'necessary to enable' for the purposes of section 66L of the act presupposes at least a reasonable possibility of a child succeeding in the course they wish to undertake;
- maintenance may be necessary even though a child has been able to undertake further studies to date without maintenance being paid;
- 'education' is a broadly defined term that can include TAFE, university courses, apprenticeships and vocational courses;
- having completed one course of study does not preclude an adult child from obtaining a maintenance order for a second course, although it would be difficult to do so; and
- a child's entitlement to a government student allowance is not to be considered in assessing adult child maintenance applications.
The Court looks at the financial circumstances of those parents responsible for the support of the child as it may not be the case that either parent has the capacity to pay adult child maintenance. This could arise by virtue of one or both parents having new children or dependants who rely on them also or the parents simply not being in a financial position to contribute.
The issue of whether the relationship between the parent and the child is relevant has been considered by the Court in the past. Historically, it seemed to be the view of the Court that a poor relationship between the parent and child could give weight to the case of a party seeking that an adult child maintenance order not be made. However this position seems to have altered in recent years. In the recent case of Everett & Everett1; a case in which HopgoodGanim Lawyers acted and the matter went on appeal, the Full Court held that in relation to the parent child relationship, it is not necessary before adult child maintenance can be ordered that there be a warm relationship between the parent and the child.
When determining an application for adult child maintenance a Court will also consider the reasonableness of any order sought. In the case of Wadsworth & Wadsworth2 the Court ordered that the maintenance payments being received by the adult child be reduced upon being presented with evidence that the adult child unreasonably refused to accept an offer of casual employment during their university holiday period.
Applications made on the basis of a child's physical or mental disability are the less common of the two types of adult child maintenance applications. In applications of this nature, the question which presents itself before the Court is whether the child is in such a dependant condition as to be incapable of supporting themselves. Historically, the Court had shown reluctance to awarding adult child maintenance on the basis of disability due to the potential longevity of such orders. However subsequent decisions of the Court have reiterated the position in section 66L of the act that there is no aged based limitation with respect to adult child maintenance and none should be implied.
This broad discretion applied by the Court in adult child maintenance cases for disabled children does create some uncertainty. For example, the issue of whether or not parents are effectively the insurers of children against disability is still unclear.
Ultimately, it may be the case that you have to consider a cost/benefit analysis of your personal circumstances, and the costs of seeking an order for adult child maintenance, to decide whether or not making an application is the right decision for you and your child. To do this, you need tailored advice from a trusted legal expert who can provide you with information regarding the legal costs for each stage of your matter. Furthermore, there are significant non-financial burdens which an applicant or their child/children could face when making an application of this nature such as the damage that may be caused to the relationships between parents and children and the potential for an adult child to need to give evidence in such an application to the Court.
1 (2014) FLC 96-604
2 FCCA 2043
Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.
2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.