When they don’t fly the nest: Care for adult children post separation

It is not uncommon for children of a relationship to continue to reside with their parents after they turn 18 years of age and for that child to continue to rely financially on those parents. The common question we are asked when a relationship breaks down, is whether the support that parent provides that child financially will be taken into consideration when determining a just and equitable outcome in the matter, especially if one or more of the adult children have special needs.

Although the answer is not straightforward, it will depend on the specific facts of each case. When determining a just and equitable outcome for a matter, the court is to consider certain factors relating to the contributions made by each party and their current and future circumstances. The Family Law Act 1975 sets out a list of these considerations which expressly includes:

Section 79(g): commitments of each of the parties to the marriage that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain;
Section 79(h): the responsibilities of either party to the marriage to support any other person; and
Section 79(v): any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

The Court has taken the support of adult children into consideration in property settlements, specifically where there is an ongoing dependency due to special needs, illness and disability. The impact of this support on a party’s future needs and financial commitments will be assessed by the Court to determine whether an adjustment would be appropriate.

The party seeking an adjustment is required to provide evidence of the dependency or likely dependency and what impact that this will have on their financial circumstances.

If a child has not yet turned 18 years of age, and there is evidence that a child will continue to be dependent on a party after their 18^th birthday, the court can consider the anticipated care needs, even though the child is not yet 18 years.

There is no set quantum of adjustment regarding the ongoing care of adult children and will be determined by the evidence by the party seeking the adjustment.

Therefore, although the care of adult children can be taken into consideration in a family law matter, whether an adjustment will be made and the quantum of that adjustment will be dependent on the facts of the matter and the evidence produced.

If you have questions regarding considerations taken into account in a property settlement or would like assistance with your family law matter, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.