Many families face additional challenges of having adult age children who have a disability requiring high levels of care. When parents in these situations separate, there is even more for them to consider.
In short, no, not under the Family Law Act.
The Family Law Act only provides for arrangements to be made about children who are defined as being under 18 years old.
In general, yes.
There are a number of things that parents in these circumstances need to take into account.
Firstly, most parents have a common interest to ensure that the needs of their child are catered for currently, and in the future. These needs will depend on many circumstances of their child, including their child’s prognosis and other assistance (such as the National Disability Insurance Scheme (NDIS)) that may be available.
In some circumstances, it might be expected that major home modifications are required, or that significant ongoing therapy is required, and so on.
While the parents may experience difficulties with each other, often the common interest of providing for their child’s needs will motivate them to work collaboratively to address those needs.
It is not usual to provide directly for children in a property settlement, but in circumstances such as these parents may consider setting aside funds, or setting up a trust, for the purpose of their child’s special needs.
Secondly, the role that the parents have taken in the care of their child may affect the weighting of contributions between the parties.
One of the steps in a property settlement requires consideration of varying types of contributions made by the parties.
Clearly the care of a child who requires a high level of care is a relevant factor. Occasionally there are families where one parent did little to nothing to provide care for their child, while the other parent provided all of the very significant care for their child and also juggled employment and household duties. In those circumstances, the markedly differing nature of the parties’ efforts throughout the relationship may have an effect on how contributions percentages are assessed. Note that this example is different from the more common situation where parties “share the load”, which may mean they undertake differing roles within the relationship but both are still making similar contributions overall.
Thirdly, the parent with the primary care of their child, may receive an adjustment in their favour in recognition of their caring role.
Another step in a property settlement requires consideration of a range of factors, many (but not all) of which fall into the category of “future needs”.
Having the care of an adult disabled child may detrimentally affect the carer parent’s health, their employment capacity, and therefore their income.
The carer parent will also have a higher financial burden in providing for their child on a day to day, as well as long term, basis. These factors are all relevant factors which would warrant a percentage adjustment in favour of the parent with the primary care.
Potentially orders or agreements could be made providing for one parent to pay the carer parent spouse/partner maintenance and/or “adult child maintenance”.
Spouse/partner maintenance may be relevant if the carer parent is unable to support themselves because of their caring responsibilities, and the other parent has the capacity to provide financial support.
“Adult child maintenance” is a form of financial support directly for the benefit of the child by one or both of their parents.
The Family Law Act specifically provides for the possibility of such maintenance where it is necessary due to the mental or physical disability of the child, regardless of their age.
Having a child with a disability presents a variety of challenges for parents, and this is typically exacerbated when parents separate.
Family law is a discretionary area of law because of the need to take the unique individual circumstances of the family, and each member of the family, into consideration. When any member of a family has a disability, and especially when it is a child, this will place pressures on the family that require careful attention.
When parents separate, the need for empathetic and specialist assistance is of utmost importance.