When it comes to providing financial support for children, disagreements between parents can often arise, particularly in cases where parents have separated. These disputes often intensify when a child turns 18 and the child support regime no longer applies. So, what are the options if your adult child is unable to support themselves?
When can a parent claim adult child maintenance?
In Australia, there is no legal obligation on parents to financially maintain children over the age of 18. In fact, the law provides that a court must not make an order for adult child maintenance unless it is satisfied that it is necessary to enable the child to complete his or her education or because the child has a mental or physical disability.1
If a court is satisfied that it should make an order for adult child maintenance, it is then empowered to make such an order as it considers proper, having regard to the level of financial support necessary and the capacity of each of the parents to contribute to that support.2
A practical example of adult child maintenance
Adult child maintenance was recently considered in the case of Rustam & Faraz (No 2).3 In that case:
- The mother, the adult children, and their brother, aged 17, lived in Country D, about an hour from City E.
- The parties separated in 2009. At that time, the family were all living in South Australia. The mother returned to Country D with the children shortly after separation in 2010.
- On 9 November 2015, the parties entered into a Binding Child Support Agreement for the three children. The Agreement provided for the father to pay the mother $20,000 per annum for each child until they each turned 18 years old (indexed for the relevant CPI plus 5 %).
- The father ceased paying for adult child Mr C, on his 18th birthday, in 2018. The second of the adult children, Ms B, turned 18 in 2021. On 22 November 2021, the Court made an order for the father to pay $470 per week by way of interim adult child maintenance for Ms B.
- Mr C attended the University in City G, which was several hours from the mother’s home. At the time of the trial, he was close to the end of his first year of a degree course. If he finished the course within three years, he would complete it in 2024. The mother submitted that Mr C would then need to complete post graduate studies to become a health professional and that it would take a further two to three years. Mr C had been diagnosed with ADHD.
- Ms B was completing her secondary education. She had been diagnosed with learning difficulties and had an IQ in the borderline range. She was also diagnosed with performance anxiety and ADHD.
- The mother’s adult child maintenance application was premised on Ms B pursuing three courses of tertiary study, contemporaneously, after she completed her secondary education. The first being in allied health, the second to become a sports educator and the third, a music educator. The application was also based on Ms B having a disability.
- The mother was receiving $29,412 per annum from the father for their 17-year-old child pursuant to the Binding Child Support Agreement. The mother’s adult child maintenance application sought the same amount for each of the adult children, together with 50% of Mr C’s tertiary education fees. She proposed that the payments continue until each of the adult children commences full time employment or they cease to be enrolled in their education for a period of six months, or in the case of Ms B if she marries or forms a de facto relationship. Otherwise, the payments would terminate in 2027 for Mr C and 2030 for Ms B.
The trial Judge determined that the mother’s application with respect to Mr C should be dismissed. This was concluded on the basis that, among other things:
- On the evidence, the trial Judge was not satisfied that Mr C was incapable of any work based upon his ADHD.
- There was no evidence before the Court about the exact nature of Mr C’s current study requirements.
- There was no evidence that either the mother or Mr C had seriously considered options for employment in the town near the university, on the University Campus (such as tutoring) or near the mother’s home in the university holidays.
- There was no evidence that options for employment during the holidays near the mother’s home have been explored.
For Ms B, the trial Judge determined that the father should pay $329 per week by way of adult child maintenance until she completed her secondary education. The trial Judge concluded that:
- It was accepted that Ms B has intellectual and learning difficulties and that she has also been diagnosed with ADHD.
- In relation to Ms B’s special needs, and in particular the additional time she had taken to complete her secondary education, that she would not have the capacity to obtain paid employment whilst she was at school to contribute to these costs.
- The father had capacity to, and should, contribute to Ms B’s living expenses given the parents’ respective financial positions. This included consideration of the father having historically managed to meet his obligations under the Binding Child Support Agreement.
What are the takeaways for someone considering seeking adult child maintenance?
What the recent decision in the above case highlights is three important issues. First, that the Court will make orders requiring the contribution to adult children’s expenses in appropriate circumstances. Second, it demonstrates the importance of properly preparing such an application and presenting all necessary evidence. Third, adult child maintenance will only be ordered in limited circumstances and that ordinarily an adult child should support themselves.4
1 See s 66L of the Family Law Act 1975 (Cth).
2 See ss 66G, 66H and 66J of the Family Law Act 1975 (Cth).
3  FedCFAMC2F 389.
4 See e.g., In the Marriage of H (1981) 7 Fam LR 451.