Financial support for children over 18

Do you have a child over the age of 18 in need of financial support? In certain circumstances, support may be available through the family law system.

What is adult child maintenance and how is it different from child support?

Financial support provided for a child over the age of 18 by a parent (or in some rare cases, a step-parent) is called adult child maintenance. This is different from child support, which is provided for children under the age of 18. Adult child maintenance payments can be made periodically or as a lump sum. If periodic, orders are usually made for a fixed period of time ─ for example, until the child completes their tertiary education.

Adult child maintenance is governed by the Family Law Act 1975 (Cth) (the Act), and applications must be made to the Federal Circuit and Family Court of Australia (Court). Child support, on the other hand, is generally dealt with by Services Australia, outside the court system.

Who can apply for an adult child maintenance order?

An adult child maintenance order can be applied for by:

• either or both of the child's parents
• the child
• a grandparent of the child, or
• any other person concerned with the care, welfare or development of the child.

When can I apply for adult child maintenance?

The Court can make an adult child maintenance order after the child has turned 18, or when the child is 17, to take effect when the child turns 18.

What criteria must be satisfied to successfully obtain an order for adult child maintenance?

The Court is only able to make an order for adult child maintenance if it is satisfied that the provision of maintenance is necessary either:

1. to enable the child to complete their education (education limb), or
2. because of a disability of the child (health limb).

In this context, "necessary" is distinct from "desirable" and involves a consideration of reasonableness.

Education limb

It has long been accepted that continuing maintenance to enable a child to undertake tertiary education is appropriate.

When determining whether maintenance is "necessary" to enable the child to complete their education, the Court will consider several factors, including:¹

• whether the course to be pursued is going to help the child earn an income
• whether the child appears to be qualified to pursue and profit from the course
• whether the child has scholarship assistance or other income
• what hardship would result to the child if they had to abandon the course through lack of means, and
• whether the parent being asked to pay has the means to assist.

Any fees that can be deferred under HECS-HELP schemes will not ordinarily be claimable, except in cases involving international students, where these fees must be paid up front and are therefore likely to be a necessary expense.²

Further, it will normally be premature to apply for adult child maintenance for tertiary education before it is established what course the child will undertake and whether they have been offered a place in the course.³

Applications under the education limb must provide detailed and specific evidence of the expenses that are "necessary" for the child to complete the education, together with detailed evidence regarding the child's personal financial circumstances.⁴

Health limb

This limb covers both partial and total disabilities, as well as temporary and permanent disabilities.⁵ One-off capital costs may also be considered.⁶

To be successful, applications under this limb must provide evidence:

• from an appropriately qualified practitioner addressing the child's disability and the impact of the child's disability on their day-to-day life,⁷ and
• specifically addressing the question of the child's earning capacity, with consideration of specific types of employment, as well as the relationship between potential employment (or lack thereof) and the child's disability.⁸

What factors will the Court consider?

Presuming one of the two above limbs is satisfied, in deciding whether or not to award adult child maintenance and/or deciding the quantum to be awarded, the Court must consider the following two steps.

Step 1: What is the financial support necessary for the maintenance of the child?

This step requires the court to consider:

• the proper needs of the child, taking into account:
  • their age
  • the manner in which the child is being educated
  • any special needs of the child, and
  • any relevant findings of published research in relation to the maintenance of children.
• the income, earning capacity, property and financial resources of the child (including the capacity of the child to earn or derive an income).

Step 2: What financial contribution should be made by a party to the proceeding?

This step requires the Court to consider:

• the income, earning capacity, property and financial resources of the party, which includes the capacity of the party to earn and derive income, including assets capable of producing income
• the commitments of the party that are necessary to enable the party to support themselves or any other child or person that they have a duty to maintain
• the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (taking into consideration the income and earning capacity forgone by the parent or other person in providing that care)
• any other special circumstances that would result in hardship to any person, if not considered.

As part of its enquiry, the Court must disregard any entitlement of the child or any other person to an income tested pension, allowance or benefit.

What expenses can be claimed?

The Court must be satisfied that the adult child maintenance is "necessary" (as opposed to desirable) to enable the child to complete their education or because of a disability.

Expenses that could be considered necessary for either the education or health limb include:

• accommodation costs
• utilities
• food
• clothing
• toiletries
• haircuts
• telephone bills
• medical and dental expenses
• pharmaceutical expenses
• motor vehicle expenses.

In some cases, modest entertainment and holiday expenses may be considered "necessary" under the health limb. Expenses associated with the relevant field of study may also be included under the education limb, for example internet fees, computer requirements or the cost of textbooks.

How much adult child maintenance should I seek?

There is no set formula for determining how much adult child maintenance ought to be sought in an application. It may be helpful to use the figure payable under the child support scheme as a guide. However, some courts have taken the view that the child support formula should be used as a final check, rather than as a starting point.

In addition to considering the child support formula, it is also advisable to:

1. carefully itemise the child's necessary expenses, noting the categories outlined above
2. calculate the shortfall between the adult child's "necessary" expenses and the surplus income of the applicant
3. consider the likely surplus funds available to the respondent (income minus necessary expenses, including expenses associated with other children) to pay a maintenance order.

If the total list of the child's expenses exceeds the reasonable capacity of the potential paying parent, the Court may not examine all expenses but instead assess an estimate figure for which there is a realistic prospect of obtaining an order.

When do orders for adult child maintenance end?

An order for adult child maintenance will end in several circumstances, including if the child ceases the relevant education or ceases to have the relevant disability. The payee has a duty to inform the payer as soon as practicable regarding the change in circumstances.

An order for adult child maintenance will also end if the child is adopted, marries or enters into a de facto relationship, or upon the death of the child or the payee (unless, in the latter case, the order is expressed to continue in those circumstances).

How do I make an application for adult child maintenance?

Before filing an application with the Court, you must ensure you comply with the pre-action procedures. You must then file an Initiating Application (outlining the orders you are seeking) together with several other pieces of supporting documentation, including a Financial Statement. Other requirements in relation to the service of your court documents can be found on the Court website.

For further assistance with your application for adult child maintenance, please do not hesitate to contact our specialised team of family and relationship lawyers to discuss your options.

¹ C v C (1962) 4 FLR 461, 465

² Ming & Leong [2022] FedCFamC2F 973

³ Osborne v Osborne (1972) 1 NSWLR 469, 481

⁴ Dorsett v Godard [2020] FAMCA 969

⁵ Re AM [2006] FamCA 351, [114]

⁶ Cumpton & Rainford [2020] FCCA 3441

⁷ Eccheli v Eccheli [2024] FEDCFAMC1F 234

⁸ Northam & Northam [2019] FCWA 240; Hickman & Hickman [2022] FedCFamC2F 1447

⁹ Ganter v Grimshaw (1998) 23 FamLR 39.