
Yes, in certain circumstances, parents of an adult child may bring a child maintenance application. Section 66F of the Family Law Act (FLA), provides that ‘either or both parents, the child, a grandparent or any other person concerned with the child can bring a child maintenance application’.
The relevant provisions under the FLA that deal with child maintenance orders are:
66L FLA – Child Maintenance Order – Children who are 18 or over
(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
(3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.
66J FLA – Matters to be taken into account in considering financial support necessary for the maintenance of child
(1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a) the matters mentioned in section 66B; and
(b) the proper needs of the child (this is expanded on in subsection (2)); and
(c) the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2) In taking into account the proper needs of the child the court:
(a) must have regard to:
(i) the age of the child; and
(ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii) any entitlement of the child or any other person to an income-tested pension, allowance or benefit.
(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
66K FLA – Matters to be taken into account in determining contribution that should be made by party etc.
(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a) the matters mentioned in sections 66B, 66C and 66D; and
(b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and
(c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and
(e) any special circumstances which, if not considered in the particular case, would result in injustice or undue hardship to any person.
(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that does not produce but are capable of producing income.
(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a) any entitlement of the child, or the person with whom the child lives, to an income-tested pension, allowance or benefit; and
(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
66VA Children who are 18 or over: change of circumstances
(1) A child maintenance order made under section 66L:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child;
stops being in force if the child ceases that education or ceases to have that disability.
(2) The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances.
(3) Any amounts of maintenance paid under the child maintenance order after it stops being in force may be recovered in a court having jurisdiction under this Part.
Cases that deal with adult child maintenance orders include:
Re AM (Adult Child Maintenance) [2006] FamCA 351
Facts: The child was the applicant – she suffered from psychical disability (multiple conditions including urticarial vasculitis arthritis, anorexia, osteoporosis, depression, vitamin D deficiency etc). Sought maintenance from both her parents – periodic payments of $2.2k to support the reasonable cost of personal care and living expenses, plus a lump sum payment of $149k for structural alterations to her home.
The first respondent was her father – who denied legal liability for maintenance on the basis that her disability didn’t manifest itself in childhood and that his duty of support ceased on her 18th birthday.
The second Respondent was her mother – who accepted she had a continuing statutory to support her daughter.
Assessment process used in this case:
- What level of financial support is necessary for the (reasonable) maintenance of the applicant in the future?
- What should the respective financial contributions of each of the respondents be? (considering the financial circumstances of each respondent)
- How long should the periodic order be made to last?
Held:
- There is no express age based limitation found in s 66L(1)(b) and none should or needs to be implied. If such restriction was intended it could and should have been clearly stated. Therefore, there is nothing to suggest that relief should be denied solely because the applicant was fit and well on his or her eighteenth birthday.
- The advantages of s 66L(1)(b) are not limited to ‘dependent’ disabled adult children. While the degree and duration of post-majority dependency undoubtedly has discretionary significance in all adult child maintenance, it is likely to assume more importance in the context of ‘education’ rather than ‘disability’ claims.
- Although there may be cases where the court’s residual discretion could be exercised to deny a s 66L claim even though all the statutory preconditions to relief had been satisfied, this is not one of them. Neither the date of disability nor the period of dependence has a disentitling effect.
- Likewise, the strained filial relationship was relevant to quantum but not liability.
- Notwithstanding the preference for finality in s 81, it cannot always be achieved and finite orders for periodic maintenance may sometimes have to be made to avoid economic injustice or undue hardship even in cases of permanent or total disability.
Adams & Simpson [2008] FMCAfam1327
Facts: the mother was the applicant and father was the respondent. Mother sought periodic adult child maintenance of $145 per week. Child had Asperger’s Syndrome and Postural Hypotension. Child was in receipt of disability support pension and had never worked in paid employment. Mother contended that the child was not capable of employment. Father contended the child was capable of working and also that the father did not have capacity to make the payments.
- The onus lies on the applicant to satisfy the Court of the child’s disability.
- Must also show that the child has no earning capacity. (see s66J FLA)
Held: Application dismissed.
- The child had an ongoing mental disability and was in support of disability mentioned. This does not relieve him of the onus of convincing the court that he lacks the capacity to work and earn an income so that the payment of maintenance is necessary for him.
- The child completed his schooling in 2005 and in 2006 the mother organised for the child to attend two programs to help him find work, but he could not complete either.
- In 200 the child attended a rehabilitation service – but the mother made no further steps to assist him in obtaining work.
- The expert witnesses indicated that he could work in paid employment. The mother’s expert also recommended that the child should seek assistance from a psychologist.
- Judge said that until these steps were taken, it could not be found that the child had a lack of earning capacity. On the balance of probabilities, the judge was not convinced that the child was totally unsuited for any kind of employment, and therefore that maintenance was necessary.
If you have any questions in relation to adult child maintenance orders, please contact our Family Law Team on 1300 557 819.