Can I get adult child maintenance?

Pursuant to section 66L of the Family Law Act 1975 (Cth), the court must not make a maintenance order in relation to a child who is over the age of 18 unless the court is satisfied that the maintenance is necessary:

  1. To enable the child to complete his/her education; or
  1. Because of a mental of physical disability of the child.

Cumpton & Rainford

The recent case of Cumpton & Rainford [2020] FCCA 3441 provides an illustration of the courts approach when dealing with applications of this nature.

Background

In this case:

  • The parents were married in 1996.
  • Had two adult children born in 1998 and 2000 respectively.
  • Separated on 19 May 2016.
  • The parties entered into a Financial Agreement on 4 November 2016 (discussed further later).
  • Mr Cumpton did not work as he was the fulltime carer of one of the adult children of the relationship.
  • Ms Rainford earned approximately $70,000.

The case concerned an application from the Mr Cumpton for adult child maintenance in respect of the eldest child.  The court determined that Mr Crumpton had the necessary standing to make the application pursuant to section 66F(1)(a) of the Family Law Act, given he was the father of the child. The court was then required to turn its attention to the maintenance application itself.

Financial Agreement

Ms Rainford contended that Mr Cumpton’s application should be dismissed on the basis that the parties had entered into a financial agreement that precluded them from bringing maintenance applications against one another. In support of her argument Ms Rainford relied on paragraph 5.4 of the agreement which stated:

“5.4. We both wish to enter this Agreement to settle all claims now and in the future for any maintenance, property, financial resources and other financial matters including any claims that may be made under Part VII or any other relevant provision of the Family Law Act.”

In response to this Mr Cumpton argued that section 90E of the Family Law Aw was applicable.  Section 90E states that:

“A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:

  • the party, or the child or children, for whose maintenance provision is made; and
  • the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.”

Mr Cumpton argued that paragraph 5.4 of the Financial Agreement was void, in so far as it referred to maintenance, as it did not specify the name of the child, nor did it specify the name of any other person.

Mr Cumpton’s position was ultimately accepted by the court.

Maintenance

The court then turned its mind to the question of adult child maintenance.

The child for whom the maintenance was sought was born with significant disabilities, being drug-resistant epilepsy and sever intellectual impairment. Following separation, the child remained living primarily with the father. The court accepted the father’s evidence that the child was completely dependent on the father for the majority of her day to day needs.

The making of an adult child maintenance order is a matter of discretion, even if the applicant is able to establish the requisite criteria of section 66L.  In determining if an application is “necessary” the guiding principle for the court is what, in all circumstances, is reasonable (Cosgrove & Cosgrove (No 2) [1995] FamCA 155).

The court determined that the reasonable weekly living expenses of the child were $296.35, and that the items encompassed in this sum were necessary. Noting section 66B(2)(b) of the Family Law Act, that the act required parents to contributed ‘equitably’ rather than ‘equally’ to support their children, the court made an order that Ms Rainford pay Mr Cumpton $120 per week for the care of the child.

Why does this matter for me?

The case of Cumpton & Rainford not only provides an illustration of the approach the court will take in determining applications of adult child maintenance, but also of the importance of ensuring that financial agreements are drafted correctly.  Had the original agreement been drafted differently, Mr Cumpton may not have been successful in his application.

If you are considering applying for adult child maintenance, or are concerned that a financial agreement you have signed may be set aside, please contact one of our team members on 03 9070 9839 or infor@sagefamilylawerys.com.au

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