An order for a parent to pay maintenance for an adult child is still rare. However, today’s children over the age of 18 are finding the road to financial independence harder and therefore adult child maintenance issues have become more common. It’s not lazy children; most of the time, it’s a changing economy.
Parents, caregivers or adult children may seek an order for maintenance if maintenance is necessary:
- to enable the young adult to complete his or her education; or
- because of a physical or mental disability.
Generally, the sticky issue is not whether maintenance is due. Rather, the questions are how to calculate it and how it should be paid.
Who can apply and when?
Under section 66L of the Family Law Act, a parent, grandparent or any other person concerned with the care, welfare or development of the child may apply for maintenance for the child from a parent. This application can be made when the child is 17 in anticipation of an 18th birthday or at times thereafter.
It is quite common for a child embarking on university or other advanced studies to make an application seeking support from financially well-off parents.
In terms of physical or mental disability, it is also common for the carers of children transitioning from the Child Support System to seek further maintenance. There is no upper age limit in the law, although other factors and resources may be considered.
In determining the amount of maintenance that should be paid, courts balance:
- How much financial support the child needs, not limited to subsistence needs and considering the child’s other resources and earning ability; and
- Each parent’s financial position, including earning capacity, support obligations toward other dependents and income forgone by having a child live with the parent.
Within these two considerations, specific facts like the child’s course of study, the likelihood of success, financial outlook or health prognosis may also come into play. University students are often presumed to be capable of working on a part-time basis while they study. An adult child with a degenerative condition might not be presumed to be able to continue to contribute income past a certain set time.
Whether the parent and child have a warm personal relationship is not a factor that courts will consider when determining whether maintenance is due or the amount of maintenance that would be appropriate. Modern decisions acknowledge that estrangement may affect how maintenance is to be paid, however.
How will it be paid?
Where a parent has cooperated with respect to previous maintenance payments, instalments are usually the most appropriate method of payment. In situations where a payer has been recalcitrant or parent and child are long-estranged, a court may order a lump sum. Other creative options exist including a transfer of property or the requirement that a portion of a lump sum payment be invested in a way that can be counted on to produce future income.
Courts may order maintenance payments for an adult child seeking further education or for a disabled adult. If you have questions about seeking maintenance for your adult child still living at home, (or for yourself, if you are that individual) please call us at 1800 770 780. The attorneys at Owen Hodge Lawyers would be happy to advise you.