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Adult children living at home

What do you do if you want them to leave?

It's not uncommon for older people to find themselves sharing their home with an adult child. Adult children may want to move in with their parents because they have lost their job, had a relationship breakdown or for some other reason.

You may be thinking about offering your child a temporary 'refuge' until they are able to support themselves again. You may already be in this situation. Or perhaps your children never moved out of home in the first place.

However, it is not unusual for older people to want their adult children to leave their home because they are abusive and disrespectful, because they don't make any financial contribution or contribute to the house work, or simply because the arrangement isn't working anymore.

Prevention is better than cure

Although your parental obligations end once your child becomes an adult, it is understandable that you will continue to be concerned for your children's ongoing welfare. However, your welfare is equally important. It's up to you if you want to have your adult child in your home or not, and it's OK to say no.

If you do decide to let your child live with you it's important that you are both clear about how this will work so that there won't be any misunderstandings down the track.

Think about setting the ground rules before you agree to share your home. It is a good idea to have a written agreement that you both sign and date.

The agreement can cover things like:

  • how long will they stay?
  • will they pay you money?
  • will they contribute to household bills?
  • can they have friends visit or to stay overnight?
  • will you provide any domestic services for them or will they be responsible for their own laundry and meals?
  • will they be required to share in the cleaning and general upkeep of the home?
  • can they smoke or drink in the home?
  • if they break the rules how much notice will you give them to leave?

Both of you should keep a copy of the agreement.

You can use a special Residential Tenancy Agreement if you want your child to pay rent and be a tenant in your home.

You can get a Residential Tenancy Agreement form from most newsagencies and stationary stores, or online from NSW Fair Trading www.fairtrading.nsw.gov.au or the Real Estate Institute of NSW www.reinsw.com.au

They live with me already. Can I make them leave?

As the owner or renter of your home you have a right to say who lives there. Even if you invited someone into your home, you have a right to change your mind.

However, there is no easy way to make someone leave your home if they refuse to go, especially when it is your son or daughter. You may want them out but still be concerned about their welfare and your relationship with them.

You have a few options if you want your child to leave.

Ask them to leave

Choose a suitable time to have a conversation with your child – if possible when neither of you is tense or angry nor rushed for time. Be direct about why you want them to leave. Set a non-negotiable timeframe for this to happen. Remember – it is your home.

Try mediation

If talking doesn't work, a Community Justice Centre (CJC) may be able to help you. A CJC is a free government service that helps people, including families, resolve disputes by talking to each other in a safe and informal environment. It is voluntary and people can't be forced to attend. See the 'Where can I get legal help and more information' section for details of CJCs.

Use the law

If mediation also fails then you might have to take legal action against your child. The type of legal action you can take will depend on your situation. You should talk to a lawyer about whether the law can help you.

How can the law help?

The law may be able to help if your child is a tenant in your home, they threaten or assault you or they are trespassing on your property.

Your child is a tenant in your home

The law may regard your child as a tenant in your home if you have agreed to let them live in your property in return for them paying you money or caring for you or doing maintenance on the house.

If this is the case you may be able to ask the Consumer Trader and Tenancy Tribunal (CTTT) to help you evict them.

You should talk to a lawyer about whether your child is a tenant. They may not be a tenant but a boarder or lodger, in which case you will have to take different steps.

Your child threatens or assaults you

You don’t have to tolerate violent behaviour from your child or anyone else. If they have made threats or been violent towards you, you can tell the police and they may be charged with a criminal offence.

You can also apply to a Local Court for an Apprehended Violence Order (AVO) – a court order that prohibits or restricts your child’s behaviour. The police may help you with this or you can apply to the court on your own.

The court can make an 'exclusion order'. This means your child will have to move out of the home and can also prohibit them from approaching the property. They can be charged by the police if they disobey the order. An exclusion order can be made even if your child co-owns or co-rents the property with you.

See the 'Where can I get legal help and more information' section for details of where to get help for domestic violence.

TIP

If your safety is at risk:

  • Contact police if violence is involved
  • Stay with a relative or close friend or book into a hotel until the threat or abuse stops
  • Change your telephone number once your abusive child has left the home
  • Change the locks to the property

Your child is trespassing on your property

It is a criminal offence - called trespass - for someone to come onto your property without your agreement, or to refuse to leave after you have asked them to, unless they have a legal right to be there. (They will have a legal right to be there if they are a tenant or a co-owner of the property).

If your child is trespassing there are a number of things that you can do.

  • Talk to the police
    Write to your child asking them to leave by a certain date. If they refuse you can try asking the police to help you evict them. However, whether the police will help, and the type of help they will give, can vary. Some police are reluctant to get involved in what they regard as a private dispute between family members.
    The police may want evidence that you own or rent the property. You should also show them a copy of the letter asking your child to leave. If the police agree to try to persuade them to leave this is the easiest way to remove your child from your home. 
  • Send a letter from a solicitor
    You could ask a solicitor to send a letter to your child noting they are trespassing, requesting they leave and threatening legal action if they refuse. 
  • Change the locks
    As the owner of the property you can change the locks and refuse your child re-entry to the property.
  • Apply for a Supreme Court injunction
    If all these options fail, you can ask the Supreme Court for an injunction – a court order directing your child to stop trespassing on your property and to leave the property. If the order is made and they still refuse they will be in contempt of court and can be arrested and gaoled for a period of time.

You will need a lawyer if you decide to do this. Court action is expensive and complex and should be used as a last resort.

TIP

Your child may have a mental illness which makes it difficult for them to function well in the community or live independently. You may feel torn between your desire to provide care, support and accommodation for them, and the need to protect yourself and other people living in your home from abusive behaviour.

The 'Where can I get legal help and more information' section has details of where to get help and support if your child has a mental illness.

Where can I get legal help and more information?

LawAccess NSW

Free telephone legal information, advice and referrals to other services, including your nearest Legal Aid NSW office, Community Legal Centre, private lawyers and other organisations.

Tel: 1300 888 529
TTY: 1300 889 529
www.lawaccess.nsw.gov.au

If you need an interpreter call the Translating and Interpreting Service (TIS) on 131 450 and ask them to call LawAccess NSW.

The Older Persons' Legal Service

Free legal advice and assistance for older people in a range of areas of law.

Tel: (02) 9281 3600 or 1800 424 079
www.tars.com.au

Community Justice Centres

Free government service to help people resolve disputes through mediation. Tel: 1800 990 777 to discuss whether mediation is suitable for your situation.
www.cjc.nsw.gov.au for more information about mediation.

Carers NSW

An association for relatives and friends caring for people with a disability, mental illness, drug and alcohol dependencies, illness or who are frail. Provides information, referrals, support, and counselling to carers.

Tel: (02) 9280 4744 or 1800 242 636
www.carersnsw.asn.au

Mental Health Information Service

Provides information, support and referral to services that can help with mental health issues for you and your family - including community mental health, crisis intervention and treatment services and accommodation.

Tel: 1300 794 99

Domestic Violence Hotline

Provides free and confidential counselling, advice and assistance.

Tel: 1800 656 463

Women's Domestic Violence Court Advocacy Service (WDVCAS)

Your local WDVCAS can help you apply for an AVO to protect you from further violence or abuse or help you find out what options are available to you. It can also help you with housing, financial assistance, counselling and related legal issues.

Tel: 1300 888 529 for a referral to your nearest WDVCAS.

This brochure was produced by the Legal Aid NSW Older Persons’ Legal and Education Program which provides legal advice, assistance and information to older people in NSW.

To find out more about the Program or to request an information session on any topic for your group call (02) 9219 5000.

Other brochures available:

Copies of this brochure can be ordered from the 'order a publication' page.

This publication is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation.

At the time of printing, this information is correct but may be subject to change. For more information contact LawAccess NSW on 1300 888 529.