Breitner & Breitner - [2025] FedCFamC2F 196

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Breitner & Breitner [2025] FedCFamC2F 196

File number(s): MLC 15122 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 7 February 2025

Catchwords: FAMILY LAW – Application for adult child maintenance – Where mother seeks an order for adult child maintenance on the basis that it is necessary to enable the adult child to complete university studies – Where child no longer lives with mother – Where father contributes financially to adult child and has done so throughout his minority – Application for summary dismissal of mother’s application – No reasonable prospect of success in circumstances where adult child does not live with mother and father has and continues to make significant contributions to adult child – Where adult child does not wish to be involved in proceedings – Where application for adult child maintenance for parties’ older adult child previously dismissed and costs ordered – Application for adult child maintenance dismissed.

Legislation:
Evidence Act 1995 (Cth) s 131

Family Law Act 1975 (Cth) section 66L

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.09(1)

Division: Division 2 Family Law

Number of paragraphs: 26

Date of hearing: 7 February 2025

Place: Melbourne

The Applicant: In person

Counsel for the Respondent: Mr Barbayannis

Solicitor for the Respondent: Arkadia Family Law
ORDERS

MLC 15122 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BREITNER

Applicant

AND:
MR BREITNER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The amended initiating application of the applicant mother filed 28 June 2024 be and is hereby dismissed.

AND THE COURT NOTES THAT:
A.In the event an application for costs is made, both parties would be permitted to attend the court electronically rather than in person.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

These are the settled reasons of two judgments delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Breitner & Breitner

Details

AGLC: Breitner & Breitner [2025] FedCFamC2F 196
Case: [2025] FedCFamC2F 196
Decision Date: 7 February 2025

CaseChat Overview and Summary

Ms Breitner filed an application for maintenance for her adult child, asserting that the maintenance was necessary to enable the adult child to complete university studies. Mr Breitner opposed the application and sought its dismissal on the basis that the applicant did not have a reasonable prospect of success. The adult child was not involved in the proceedings. The matter came before the Federal Circuit and Family Court of Australia, which had to determine whether the application for maintenance was likely to succeed. The court considered the fact that the adult child did not live with the applicant, and that the respondent had made significant contributions to the adult child's support throughout their minority. The court also noted that the adult child had expressly declined to be involved in the proceedings. The court concluded that there was no reasonable prospect that the application would succeed.

The court dismissed the application and noted that if an application for costs was made, both parties would be permitted to attend the court electronically rather than in person. The form of the order was subject to the entry in the Court's records, and the copy of the Court’s Reasons for judgment could be reviewed to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

MLC 15122 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BREITNER

Applicant

AND:

MR BREITNER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The amended initiating application of the applicant mother filed 28 June 2024 be and is hereby dismissed.

AND THE COURT NOTES THAT:

A. In the event an application for costs is made, both parties would be permitted to attend the court electronically rather than in person.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 15122 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	7 February 2025
Catchwords:	FAMILY LAW – Application for adult child maintenance – Where mother seeks an order for adult child maintenance on the basis that it is necessary to enable the adult child to complete university studies – Where child no longer lives with mother – Where father contributes financially to adult child and has done so throughout his minority – Application for summary dismissal of mother’s application – No reasonable prospect of success in circumstances where adult child does not live with mother and father has and continues to make significant contributions to adult child – Where adult child does not wish to be involved in proceedings – Where application for adult child maintenance for parties’ older adult child previously dismissed and costs ordered – Application for adult child maintenance dismissed.
Legislation:	Evidence Act 1995 (Cth) s 131 Family Law Act 1975 (Cth) section 66L Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.09(1)
Division:	Division 2 Family Law
Number of paragraphs:	26
Date of hearing:	7 February 2025
Place:	Melbourne
The Applicant:	In person
Counsel for the Respondent:	Mr Barbayannis
Solicitor for the Respondent:	Arkadia Family Law

MLC 15122 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BREITNER Applicant
AND:	MR BREITNER Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	7 FEBRUARY 2025