Hickman & Hickman - [2022] FedCFamC2F 1557

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hickman & Hickman [2022] FedCFamC2F 1557

File number(s): MLC 3658 of 2022

Judgment of: JUDGE BLAKE

Date of judgment: 17 November 2022

Catchwords: FAMILY LAW – ADULT CHILD MAINTENANCE – where child suffers from epilepsy – where the respondent father disputes the severity of the epilepsy and contends the child can maintain some employment – where medical evidence of specialist is not on affidavit and is hearsay – specialist’s evidence not taken into account – where evidence of general practitioner is child cannot undertake any employment – where evidence of general practitioner is conclusionary – where general practitioner admitted he had not considered all forms of employment when he stated child could not be employed – evidence of general practitioner not persuasive and not accepted – HELD provision of maintenance not necessary because of a physical or mental disability

Legislation:
Family Law Act 1975 (Cth), ss 66B, 66C, 66G, 66J, 66J(1)(c), 66J(3)(b), 66K, 66L, 66L(1), 66L(1)(a), 66L(1)(b), 66VA

Evidence Act 1995 (Cth), s 140

Cases cited:
Everett v Everett [2014] FamCAFC 152

Northam & Northam [2019] FCWA 240

Paul & Paul [2012] FamCAFC 64

Re AM [2006] FamCA 351

Zubcic v Zubcic and Ors [2018] FamCA 129

Division: Division 2 Family Law

Number of paragraphs: 40

Date of hearing: 4 November 2022

Place: Melbourne

Counsel for the Applicant: Mr N Eidelson

Solicitor for the Applicant: Victoria Legal Aid

Advocate for the Respondent: Dr J Van Beveren

Solicitor for the Respondent: Van Beveren Lawyers
ORDERS

MLC 3658 of 2022

BETWEEN:
MS HICKMAN

Applicant

AND:
MR HICKMAN

Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

17 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The Application filed 7 April 2022 and the Amended Application filed 5 October 2022 be dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Hickman & Hickman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:

This is an application for maintenance for a child aged over 18 years of age. The application is brought by the mother on behalf of the child Ms B born in 2000 (‘Ms B’). The application is opposed by the father.
For the reasons that follow, I have decided to dismiss the application.
background
The parents commenced a relationship…

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 Hickman & Hickman

Details

AGLC: Hickman & Hickman [2022] FedCFamC2F 1557
Case: [2022] FedCFamC2F 1557
Decision Date

CaseChat Overview and Summary

This is an application for maintenance for a child over the age of 18 years. The mother applied on behalf of the child, Ms B, who suffers from epilepsy. The father opposed the application, claiming that Ms B’s epilepsy does not prevent her from undertaking employment. The Court had to decide whether the maintenance was necessary because of Ms B’s mental or physical disability. The Court considered the evidence from Ms B’s neurologist and general practitioner, but found that it was insufficient to demonstrate that Ms B’s epilepsy prevented her from undertaking any form of employment. The Court also noted that the mother had not proved that Ms B does not have the ability to earn income and does not have any earning capacity. The Court found that the provision of maintenance was not necessary because of Ms B’s epilepsy and dismissed the application. The Court did not make any orders for maintenance.

Orders