Is there an obligation to financially support adult children?

Although child support typically ends when a child turns 18 years old, it is possible to obtain adult child maintenance in limited circumstances.

The Family Law Act 1975 (Cth) and Family Court Act 1997 (WA) provide that the parents of a child have the primary duty to maintain the child. This duty has priority over all commitments other than those necessary to enable a parent to support themselves or any other child. The duty is not affected by any entitlement of the child to an income tested pension, allowance or benefit.

It is also possible for the Family Court to make an order requiring a step-parent to maintain a child, but this duty is secondary to the primary duty of the child’s parents. In deciding this, the Court must have regard to the duration of the relationship, the relationship with the child and the previous arrangements for the maintenance of the child.

But does the duty to maintain extend to adult children who are still comfortable in the nest or finding independence?

An administrative child support assessment can only be made in relation to a child under 18 years old. Similarly, a Binding Child Support Agreement can only be made in relation to a child for whom an application for an administrative assessment is entitled to be made.

Where an application cannot be made for an administrative assessment for a child, the Family Court has the power to make such child maintenance orders as it thinks proper, having regard to various factors. However, child maintenance orders also cease being in force when a child turns 18, unless ordered otherwise.

The Family Court can only make a child maintenance order in relation to a child over 18 if the Court is satisfied that the provision of maintenance is necessary:

1. To enable the child to complete their education; or
2. Because of a disability of the child.

An application for a child maintenance order can be made by either parent, the child themselves, a grandparent, or “any other person concerned with the care, welfare or development of the child”.

In determining such an application, the Court must have regard to factors such as:

1. The age of the child;
2. The manner in which the child is being, and in which the parents expected the child to be, educated or trained;
3. Any special needs of the child;
4. The income earning capacity, property and financial resources of the child;
5. The income earning capacity, property and financial resources of the parties;
6. The commitments of the parties necessary to support themselves or other children;
7. The direct and indirect costs incurred by the parent or other person who the child lives with in providing care for the child, including the income and earning capacity forgone by them; and
8. Any special circumstances which would result in injustice or undue hardship to any person.

The Court must disregard any entitlement of the child to an income tested pension, allowance or benefit.

In respect of adult child maintenance in particular, case law has provided the following guidance:

1. The Court may consider whether the ‘nexus’ of dependence between the child and parents has already ceased, such that the application amounts to a ‘resurrection’ of that dependence.
2. The Court may consider the likelihood of the child completing the course in question, whether the course will help the child earn an income and whether some other course may be more in the child’s interests.
3. In this context, disability refers more to consequences than causes. A disabled person “lacks mental power or a physical faculty (or both) and is restricted in the way he or she lives or moves”.
4. It may be necessary to produce evidence from therapists in relation to what types of work a disabled child could perform and for how long.

Once made, a child maintenance order for a child over 18 will only cease to be in force if:

1. The order is discharged or varied by a further order;
2. The child ceases their education or ceases to have their disability, noting that the payee has an obligation to inform the payer as soon as practicable of a change of circumstances in this regard;
3. The child is adopted, marries or enters into a de facto relationship; or
4. The child dies.

If parties are in agreement about adult child maintenance being paid, this can be formalised by filing a Form 11 Application for Consent Orders with the Family Court. It may otherwise be necessary for the Court to determine the matter in accordance with the above principles.

If you would like further advice in relation to adult child maintenance, please contact Lynn & Brown Lawyers to arrange an initial consultation.

About the Author: This article was authored by  Kate Hesford, Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible, but also has experience in court proceedings.

Kate has previously worked at boutique family law firms, as the Legal Associate to the Chief Judge of the Family Court of Western Australia and at Legal Aid Western Australia. She has also completed a Graduate Diploma of Family Dispute Resolution.