Oliversson & Suleimenov - [2025] FedCFamC1A 22

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oliversson & Suleimenov [2025] FedCFamC1A 22

Appeal from: Oliversson & Suleimenov [2024] FedCFamC2F 1378

Appeal number: NAA 249 of 2024

File number: BRC 2090 of 2024

Judgment of: AUSTIN J

Date of judgment: 19 February 2025

Catchwords: FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the primary judge summarily dismissed the application of the appellant wife seeking the husband pay adult child maintenance for the parties’ elder child – Where the wife was ordered to pay the husband’s costs of and incidental to the application – Where the wife appeals on grounds of legal, factual and discretionary error – Where the paramountcy principle does not apply to adult child maintenance applications – Where the primary judge correctly considered the factors prescribed by s 117(2A) of the Family Law Act 1975 (Cth) in making the costs order – Appeal dismissed – Mother’s Application in an Appeal to adduce further evidence dismissed – Costs ordered in a fixed sum in the husband’s favour.

Legislation:
Family Law Act 1975 (Cth) Pt VII, Div 7, ss 60CA, 65AA, 66L, 102QAB, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Number of paragraphs: 40

Date of hearing: 19 February 2025

Place: Brisbane

The Appellant: Litigant in person

Counsel for the Respondent: Ms Pendergast

Solicitor for the Respondent: Barry Nilsson Lawyers
ORDERS

NAA 249 of 2024
BRC 2090 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS OLIVERSSON

Appellant

AND:
MR SULEIMENOV

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 31 October 2024 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliversson & Suleimenov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the dismissal of the wife’s appeal brought from orders made…

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.

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Details

Case: [2025] FedCFamC1A 22
Decision Date: 19 February 2025

CaseChat Overview and Summary

The appeal was brought by Ms Oliversson against Mr Suleimenov, contesting orders made by a judge of the Federal Circuit and Family Court of Australia regarding adult child maintenance for their elder child. The wife sought orders for the husband to pay adult child maintenance for their elder child, who had recently attained majority and was living in Europe. The husband opposed the application and sought its dismissal along with an order for the wife to pay his costs. The wife appealed the primary judge’s decision to dismiss her application and to order her to pay the husband’s costs.

The court considered three grounds of appeal: legal error, factual error, and discretionary error. The court found that the primary judge correctly applied the law, considered the relevant factors under section 117(2A) of the Family Law Act 1975 (Cth), and made an appropriate costs order. The wife's application to adduce further evidence was dismissed as it would not likely produce a different result and the evidence could have been presented at the original hearing. The paramountcy principle did not apply to adult child maintenance applications, and the wife failed to establish that maintenance was necessary for the child to complete education or due to a disability. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed, the application to adduce further evidence be dismissed, and the wife pay the husband’s costs of the appeal in the sum of $10,000. The form of the order is subject to minor corrections or variations as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 249 of 2024

BRC 2090 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS OLIVERSSON

Appellant

AND:

MR SULEIMENOV

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 31 October 2024 is dismissed.

2. The appeal is dismissed.

3. The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000.

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).

Background

Background to the litigation

These reasons explain the dismissal of the wife’s appeal brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 September 2024 in adult child maintenance proceedings contested between the parties under Pt VII, Division 7 of the Family Law Act 1975 (Cth) (“the Act”).Background The parties married in 2005, separated in 2013, and were later divorced. They have two children. The husband paid child support for them under a binding Child Support agreement struck in 2017, but his liability to pay child support for the elder child expired upon her attainment of majority in March 2024 (at [8] and [69]). In February 2024, just before the elder child attained her majority, the wife filed an Initiating Application seeking orders compelling the husband to pay adult child maintenance for her pursuant to s 66L of the Act. By his Response filed in May 2024, the husband sought the application be summarily dismissed pursuant to s 102QAB of the Act, with costs (at [13]). The summary dismissal application was entertained by the primary judge in September 2024 and resisted by the wife (at [25]). The parties agreed the hearing would be conducted by way of submissions without any cross-examination on the evidence-in-chief they each elected to file (at [17], [20], [22], [23] and [36]). The primary judge correctly recited the applicable legal principles governing the dispute (at [26]–[32]). As properly recognised (at [32]), pursuant to the provisions of s 66L(1) of the Act, the wife’s adult child maintenance application would fail unless the payment of maintenance was necessary to either enable the adult child to complete education or due to her disability. It was common ground the elder child completed her secondary education in November 2023 (at [9]), travelled to Europe in May 2024, and intended staying in Europe for at least the remainder of 2024 (at [14], [44] and [55]). She was not currently studying and had no more than tentative plans to undertake tertiary study in 2025, which was hypothesised to be a fine arts course not commencing until late 2025 (at [41]). Consequently, at the time of hearing in September 2024, the wife could not establish the payment of maintenance was necessary for the adult child to complete education. That might possibly be the case in the future, but not then or now. As to the second alternative, the wife contended the adult child suffered from “mental health issues”, which she articulated to be “PTSD or anxiety”. However, as was observed by the primary judge (at [48]–[49]), the wife adduced no medical evidence to verify the child suffers from any form of “disability”. The primary judge noted the distinction between the adult child having a diagnosed medical condition and labouring under a disability, which are quite different things (at [51]–[53] and [56]). The adult child is certainly not physically disable. The only question could be whether she is psychologically disable, but it may be wondered how the wife could persuasively contend for that finding when she is travelling independently in Europe and harbours expectations of tertiary education and gainful employment thereafter.

Evidence

Evidence Before The Court

These were the relevant orders made by the primary judge:1. The Initiating Application filed on 19 February 2024 is dismissed.…3.The [wife] will pay the [husband’s] costs of and incidental to the Initiating Application fixed in the sum of $22,405, with the payment to be made within 6 months of the date of this order.The application to adduce further evidence By an Application in an Appeal filed on 31 October 2024, the wife sought leave to adduce further evidence in the appeal, being her affidavit filed in support of the application. The affidavit annexes a series of documents, with the text of the affidavit being the wife’s commentary upon the content and significance of the documents. The annexures are:(a)an undated statement supposedly signed by the adult child (Annexure 1), in which she confirms she is living in Europe and has not yet made any decision about either the nature of the tertiary education in which she will enrol or the venue of her study;(b)various documents procured from the adult child’s treating medical practitioners (Annexure 2) which, taken at their highest, confirm her diagnosis with Post Traumatic Stress Disorder and anxiety;(c)correspondence between the parties about the litigation (Annexure 3), demonstrating nothing aside from their righteous belief in their respective positions;(d)correspondence between the wife and the adult child since she has been in Europe (Annexure 4), which the wife believes verifies the child’s emotional fragility; and(e)a government information brochure about adult child maintenance (Annexure 5), which evidently does not supplant the requirements of s 66L of the Act. The primary purpose of admitting further evidence in an appeal pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is to help vindicate a ground of appeal by demonstrating appealable error (CDJ v VAJ (1998) 197 CLR 172). Further evidence should not be admitted in the appeal if it would not likely produce a different result, if it could or should have been led at first instance had the wife wanted to obtain and adduce it, or its reception would obliterate the distinction between appellate and original jurisdiction (CDJ v VAJ at [55], [109], [111], [114], [116], [140]-[151], [169] and [186.9]). Those considerations militate against the reception of the further evidence proffered by the wife, making it unnecessary to separately address the apparent inadmissibility of the evidence or its likely lack of probative value (CDJ v VAJ at [115], [136] and [137]). The application to adduce further evidence is dismissed.The appeal The appeal is brought from the two orders made by the primary judge, extracted above. The three grounds of appeal within the Notice of Appeal filed on 30 September 2024 are a narrative extending over five type-written pages, so they are not reproduced here in the interests of brevity. The grounds tend to principally assert legal error (Ground 1), factual error (Ground 2) and discretionary error (Ground 3), though the discursive way in which the grounds are particularised makes clear the wife’s grievances are not confined by those descriptors.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 249 of 2024 BRC 2090 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS OLIVERSSON Appellant
AND:	MR SULEIMENOV Respondent

Appeal from:	Oliversson & Suleimenov [2024] FedCFamC2F 1378
Appeal number:	NAA 249 of 2024
File number:	BRC 2090 of 2024
Judgment of:	AUSTIN J
Date of judgment:	19 February 2025
Catchwords:	FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the primary judge summarily dismissed the application of the appellant wife seeking the husband pay adult child maintenance for the parties’ elder child – Where the wife was ordered to pay the husband’s costs of and incidental to the application – Where the wife appeals on grounds of legal, factual and discretionary error – Where the paramountcy principle does not apply to adult child maintenance applications – Where the primary judge correctly considered the factors prescribed by s 117(2A) of the Family Law Act 1975 (Cth) in making the costs order – Appeal dismissed – Mother’s Application in an Appeal to adduce further evidence dismissed – Costs ordered in a fixed sum in the husband’s favour.
Legislation:	Family Law Act 1975 (Cth) Pt VII, Div 7, ss 60CA, 65AA, 66L, 102QAB, 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Number of paragraphs:	40
Date of hearing:	19 February 2025
Place:	Brisbane
The Appellant:	Litigant in person
Counsel for the Respondent:	Ms Pendergast
Solicitor for the Respondent:	Barry Nilsson Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	19 FEBRUARY 2025