Breitner & Breitner
[2025] FedCFamC2F 196
•7 February 2025
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 read. The substance is unchanged.
BACKGROUND
The father in this matter, Mr Breitner (‘the Father’), is the respondent to an application for adult child maintenance pursuant to section 66L of the Family Law Act 1975 (Cth) (‘the Act’), and the applicant for the application for summary dismissal of the mother, Ms Breitner (‘the Mother’), pursuant to rule 10.09(1)(c) and (d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’). For convenience, both applications are within one document of settled reasons.
Legal Principles
Those sections referred to above are as follows:
Section 66L Children who are 18 or over
(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
(2)A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a disability of the child.
(3)A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.
[emphasis added]
Rule 10.09Application for summary orders
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
(2)An application under this rule must be made by filing an application in accordance with the approved form.
[emphasis added]
Adult child no longer living with Mother
The context is that it is common ground that at or around Christmas, whilst these proceedings were pending, the child, Mr C, now 19 and studying at university, ceased to live with his mother and moved to live with the Father’s mother (‘the Paternal Grandmother’) and intends to do so for some considerable time.
EMAILS ALLEGED TO BE ATTEMPTS TO NEGOTIATE
This matter was dealt with as a preliminary issue.
In the context of that dispute, or those events, the Mother emailed the Paternal Grandmother on a number of occasions between 5 January and 15 January, wherein she made certain statements to the Paternal Grandmother. In the course of these proceedings, it has been necessary for me to deal with other evidence, whether it was excluded by section 131 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) and, after some discussion, those matters were agreed upon and material was deleted. Counsel for the Father, the applicant on the summary dismissal application, sought to take the Court to the affidavit of the Father filed on 28 January 2025 and the emails of the Mother to her former mother-in-law (being the person with whom Mr C is living at the moment). And the reference to that material was objected to by the Mother on the basis that it was excluded by the provision of section 131 of the Evidence Act, which provides:
Section 131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if:
(a)the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
(b)the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
(c)the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or
(d)the communication or document included a statement to the effect that it was not to be treated as confidential; or
(e)the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
(f)the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or
(g)evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
(h)the communication or document is relevant to determining liability for costs; or
(i)making the communication, or preparing the document, affects a right of a person; or
(j)the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(k)one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.
[emphasis added]
Because the Mother was a litigant-in-person, I had previously brought to her attention the provisions of section 131(1) and (2). After inquiry from the parties, there being no objection to whether I read the impugned material to determine its admissibility, I did so and have heard submissions from the Mother.
The person asserting inadmissibility bears the evidentiary burden of satisfying me that it is inadmissible. Independently of that, I may come to the view that material is inadmissible. Having read the material and heard the submissions – and it is unnecessary that I go to the detail of it – I am unable to see how this is an attempt to negotiate a settlement of the dispute about adult child maintenance for Mr C. Rather, taken as a whole with the inevitable communication of an unhappy relationship between two adults who once had the relationship of being mother-in-law and daughter-in-law (and this being only one person’s statements) it is, on its face, a ventilation of various unhappinesses that can arise in family relationships. But more significantly, it is a request to provide evidence of Mr C's expenses whilst he lives with his paternal grandmother for the purpose of being put before me in these proceedings.
Emails not an attempt to negotiate
I am not satisfied that this communication is excluded by section 131(1) of the Evidence Act. And I will permit counsel to refer to it. And given rule 8.15(3)(e) – that a document to be used in conjunction with an affidavit must not be accepted as evidence in the proceeding unless it is tendered in evidence at the hearing of the application and accepted into evidence by the court – I take it that counsel for the Father is implicitly seeking to tender this document, and ‘MRB-01’ to the Father’s affidavit of 28 January will be an exhibit in the proceeding and will be known as ‘MRB-01’. That is, the annexure as it is described.
SUBSTANTIVE PROCEEDINGS: SUMMARY DISMISSAL
In the matter of Breitner, an application for adult child maintenance pursuant to section 66L comes before the Court originally listed for final hearing. The application is made by the mother of the child, Mr C, against Mr C’s father. Mr C is now 19 years of age, and it is common ground he is studying at a university in a major Australian city. It is common ground that the parents separated in 2013 and, about 10 months later, entered into final consent orders, including a binding child support agreement. That agreement provided that the father of the children, Mr C and Mr D[1], was to pay periodic child support and 100 per cent of all private school fees. It is common ground that he paid over the journey – whilst Mr C and Mr D were in their minority – child support in the order of $400,000 and private school fees in the order of $500,000.
[1] The older child of the parties.
After separation, Mr D and Mr C lived with their mother. They spent some limited time with their father as their parents lived in different cities. Mr D’s mother issued an application for adult child maintenance for Mr D during his year 12 education, anticipating the end of the child support assessment, or child support agreement, which ceased when he completed year 12. The purpose of the application, I am satisfied, was to assist him with his secondary school education. It is common ground that three days after that application, Mr D ceased living with his mother. In September of that year, the parties entered into final orders whereby Mr D’s mother’s application for adult child maintenance was either withdrawn or dismissed, and there was an order that she pay costs in the sum of somewhere in the region of $10,000 to $20,000.[2]
[2] The parties disagree as to the sum.
At the same time, or thereabouts, as that application was being dismissed and a costs order was being made, it is common ground that Mr C commenced casual work, as teenagers do. He was then in year 10. It is common ground that upon Mr C obtaining 18 years, his father assisted him with not insubstantial funds to purchase a motor car and then, after he had a car accident, assisted him with not insubstantial funds to repair that motor car. It is common ground that Mr C completed his secondary education and is a high achieving student relative to the community at the end of 2023. It is common ground that Mr C’s father provided him with some financial support directly to him by way of pocket money or spending money, health insurance, mobile phone bills, car registration, insurance, basic car repairs, as well as an online subscription. The quantum of those fees is slightly disputed, but it is in the order of somewhere between $200 and $300 per week (the parties’ different estimates).
The Mother’s case
In December 2023, Mr C’s mother filed an application against his father seeking adult child maintenance for Mr C. That matter was contested Mr C’s father. The background is that both parents are highly, and university educated and professionally qualified. In the background, from the perspective of this section 66L application, Mr C’s father repartnered and has a baby son, E. It appears incontrovertible that Mr C’s father supports his new partner and child in the relationship. It is alleged by the Mother in the application before me that in 2024, whilst Mr C was living with her, he did quite well or even, on one view, exceptionally well at university.
The hearing of this application was listed to be heard at the final hearing in October 2024 and the parties filed trial material accordingly. The court was unable to accommodate that matter being heard in October, and the matter was relisted to today. In the meantime, over the Christmas 2024 period, it is common ground that Mr C ceased to live with his mother and moved to live with his paternal grandmother. The Mother’s case is that there is a legal obligation of the parents to support Mr C because Mr C is attending university education and that it is necessary for an order to be made, in part, because there is an income disparity between the parents.
It is further the Mother’s case that she would wish to contribute to the support of Mr C, to the extent that she is able to, and that she has recently contributed to him. And for the purpose of this application, I accept that she has done so. It is also the Mother’s case that the Paternal Grandmother, with whom Mr C lives, does not want to accept any money from her for Mr C’s support and has refused to provide her bank account details to facilitate the Mother providing any financial support.
It is also the Mother’s case that Mr C does not support this case. And that is because he has a strong wish for his parents to avoid any conflict or litigation. It is her case that Mr C, and earlier her older son Mr D, do not have a proper understanding of what supporting themselves means. However, it is the Mother’s case that Mr C has demonstrated, or if not demonstrated, expressed a firm desire to support himself, as the Mother says her older son Mr D did. The Mother says that both parents have a legal and moral obligation to support their children to the extent they can reasonably be expected to, given their respective incomes and other obligations of support.
And it is clear that the Mother’s case rests on her history and the history of the children’s father and their respective parents, all of whom have achieved university education. And in Ms Breitner’s environment, to complete a university education is an ordinary, everyday and even, I infer, necessary qualification to get on with life. Many would agree with her about that. It is clear that it is Ms Breitner’s preference that both parents financially support Mr C in his endeavour to complete a tertiary education. That preference is admirable, to the extent that I am permitted to make such judgments. But this is not a court of morals or a court of broadly commenting on parental obligations or the manner of parenting adult children.
The Father’s application for summary dismissal
It is the Father’s case that he has adequately and generously supported both Mr C and Mr D over their journey. The Mother strongly disagrees with that and sees that the Father has not adequately supported his children and does not now. Whether that is so or not, and the extent of that difference does not inform the immediate task that I have. The Father’s application is that there is no reasonable likelihood of success of the Mother’s application in the circumstances where – and this is prior to the Christmas change of accommodation – Mr C is an adult, notwithstanding he is undertaking university education, and he, to some degree, supports himself by part-time employment and his father supports him financially on a regular basis, and on an ad hoc basis when requested, and that Mr C does not want any such application or court orders about his support to be made. And it was contended that in those circumstances, the application should be dismissed.
It is the Father’s case that after Mr C moved out of his mother’s home and moved to live with his grandmother, that not only should the case be dismissed on its merits, but that in those circumstances combined, there is now no reasonable likelihood of success or, as his counsel put it, a complete impossibility now that Mr C did not live with his mother, in those circumstances, that the Court would make an order that his father pay his mother so that his mother can support Mr C, either by payments to Mr C or, in the event that she would accept them, Mr C’s grandmother. That allegation that there was no likelihood of success was raised with the Court when the issue of section 102NA of the Act arose as, after having spent $50,000 on her previous lawyers, the Mother became unrepresented at a time around about Christmas, or shortly thereafter. And at about that time Mr C no longer lived at his mother’s home.
It is also said that, there being no reasonable likelihood of success, for the proceedings to continue would be both vexatious and an abuse of process. It is also part of the Father’s case that the history of the litigation and the tone of communications between the Mother and the Paternal Grandmother demonstrated a determination to pursue the Father by legal matters in a manner that was entirely inappropriate and of itself harassing and hence, family violence. As I have made clear to counsel, I am unable to make such a finding on an application for summary dismissal when the law requires me to take the applicant mother’s evidence and case at its highest. Hence, these reasons do not include any finding about whether or not the communications and proceedings are family violence. And that is so, notwithstanding that there exists, by consent, a final intervention order that will be in place until the middle of this year.
However, on this hearing, I must take the Mother’s case at its highest, that is:
·that the Father could, if there was an obligation upon him to do so, make a greater regular contribution to Mr C’s welfare and up to the sum of now $4,000 per month plus further expenses, which would be roughly in the order of $50,000 per annum; and
·that she herself wants to and will, subject to her financial circumstances and employment, contribute to Mr C’s support to the extent she is permitted to by Mr C or his paternal grandmother, both of whom bear the primary practical or day-to-day burden of his support at the moment as he lives with his paternal grandmother.
It is also clear on the Mother’s case that Mr C’s grandmother, with whom he lives at the moment, and it is common ground intends to live with for some time, does not seek financial assistance from the Mother. And there is no evidence on the Mother’s case of the Paternal Grandmother seeking any financial support directly from either of the parents.
CONCLUSION
The legal obligation of a parent to support a child once they are over 18 is, for ordinary purposes, entirely governed by section 66L of the Act. It is common ground that Mr C is a good student. The Mother’s case is that unless she is able to obtain an order to pay funds to Mr C and Mr C’s grandmother, notwithstanding neither of them wish to receive those funds, that Mr C will be compelled to work part-time for greater hours than he should, and hence spend less time than he should on his study, and hence not advance himself in life as well as he could, or should. I am satisfied that that is a firm belief of the Mother. On her case, there is no evidence, at its highest, that in fact Mr C would study any harder, save for the possible inference that if he didn’t have to work part-time at all if he was, or his grandmother was, paid more money, then he might do more study. That assumes, of course, that he would not take up a hobby or pursue another one or pursue a love affair with his existing girlfriend or otherwise.
Nonetheless, the bottom line of the Mother’s case that she must meet is that the order that I make is necessary to enable Mr C to complete his education. Were it necessary to make an order to enable Mr C to complete his education – and I apply the meaning of “enable” as “is reasonable in all the circumstances” – which I understand to be the Mother’s case, as opposed to, “it just won’t happen otherwise”. And I do not apply that “won’t happen otherwise” test. But in the circumstance where Mr C does not live with the Mother, and the adult with whom he is living does not want support from the Mother, and there is no evidence that she has asked for support from the Father, I am satisfied that there is no reasonable likelihood of success of that application.
It is unnecessary that I go on to deal with the other part of the application, that it was an abuse of process. But had the hearing proceeded and cross-examination and elaboration of further evidence demonstrated things one way or another, that may or may not have been made out. But it is unnecessary that I rule on that. So, I uphold the application for summary dismissal and I dismiss the amended initiating application of the Mother for adult and child maintenance.
That means it is unnecessary to deal with the section 102NA application and the, if that application was successful, adjournment of the trial. The issue of section 102NA, the Mother’s assistance under the section 102NA cross-examination scheme if section 102NA applied, and the potential adjournment of the trial was agreed by the parties to be dealt with after the summary dismissal application.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 18 February 2025
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