Oliversson & Suleimenov
[2025] FedCFamC1A 22
•19 February 2025
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 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN J:
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.
Absent any real likelihood of the wife sustaining her claim for adult child maintenance on either of the two permissible grounds, her application was summarily dismissed (at [58]–[59]).
Her Honour then turned to the question of costs and determined it was appropriate to make an order compelling the wife to pay the husband’s party/party costs of the proceedings in the fixed sum of $22,405, giving her six months within which to pay (at [93]–[95]).
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.
It is evident that Ground 2 relates exclusively to the summary dismissal order (Order 1), Ground 3 relates exclusively to the costs order (Order 3), and Ground 1 relates to both orders.
It is easier to sequentially address the appealed orders rather than the grounds of appeal.
Order 1 – the dismissal order
The miscellaneous complaints made about this order within Grounds 1 and 2 and in the wife’s Summary of Argument include these:
(a)the wife was denied a fair hearing;
(b)the adult child maintenance application was dismissed without the adult child’s best interests being taken into account;
(c)the primary judge ignored “crucial domestic violence testimony” given by the wife;
(d)the primary judge ignored evidence given by the wife about the adult child’s “current financial and mental health situation”; and
(e)the primary judge made factual findings not supported by the evidence.
Each complaint can be discounted.
The summary dismissal hearing was conducted fairly. The primary judge informed the wife of the procedure which would be deployed and she was advised of the availability of a duty lawyer from whom she could take advice (at [16]–[17]). The matter was stood down to enable the wife to confer with the duty lawyer and other support workers (at [19]). She was provided with copies of relevant legislative provisions (at [18]). When the hearing resumed, the wife confirmed she had filed all the material upon which she relied (at [20]) and was permitted to rely upon that material (at [22]). She was not cross-examined. She was evidently not denied procedural fairness. It is difficult to imagine how the primary judge could have given the wife any further latitude or accommodation.
The paramountcy principle (s 60CA and s 65AA), which requires children’s best interests to be accorded paramountcy, only applies when the Court is petitioned to make a parenting order under s 64B of the Act. Here, the primary judge was not being asked to make a parenting order in respect of a minor. The wife’s application was instead exclusively for an adult child maintenance order under Pt VII, Div 7 of the Act, to which dispute the paramountcy principle did not apply.
It is simply untrue to assert the wife’s evidence was ignored, as it was expressly considered (at [22]). Given she was not cross-examined, her evidence was accepted at its highest. None of her evidence was rejected, though the primary judge found it lacked the probative value the wife believed. Her evidence about the adult child’s “financial and mental health situation” was neither ignored nor rejected.
Given the limited bases upon which an adult child maintenance application can succeed under s 66L of the Act, the financial circumstances of both the wife and the adult child were only relevant to the extent it was demonstrated that such maintenance was needed to enable the adult child to complete education or due to her disability. But neither of those conditions was engaged by the evidence. The inexpert evidence adduced by the wife about the adult child’s diagnosis with PTSD and anxiety did not prove she was disable. On the contrary, the wife expects the adult child to fulfil her potential by undertaking tertiary studies at some indistinct point in the future.
The wife’s evidence about the husband’s past commission of family violence was irrelevant to the prospects of her application for adult child maintenance. Her contention that the evidence was relevant to explain the background to the dispute is rejected.
The wife did not identify any factual findings unsupported by the evidence, in which event that complaint falls away.
Order 3 – the costs order
The miscellaneous complaints made about this order within Grounds 1 and 3 and in the wife’s Summary of Argument include these:
(a)by making the costs order, the primary judge indulged in an “utter abuse of…power” and “abused her discretion”;
(b)the primary judge did not take into account the factors prescribed by s 117(2A) of the Act;
(c)the wife’s financial means were far less favourable than the husband’s;
(d)the costs order was punitive; and
(e)the costs order was not in the children’s best interests.
The wife did not condescend to explain how the costs order was either an “utter abuse of power” or beset by the legal error of not considering the provisions of s 117(2A) of the Act. Her Honour correctly quoted the legal principles governing the costs application (at [62]–[66]), then went on to consider each of the factors prescribed by s 117(2A) of the Act (at [67]–[79]). No relevant factor was overlooked and, conversely, no irrelevant factor was considered, so there was no discretionary error either.
Her Honour found the costs order was warranted because: the wife’s financial circumstances did not preclude a costs order; neither party received legal aid; the correspondence sent by the wife to the husband’s lawyers likely increased his costs; the adult child maintenance application was wholly unsuccessful; and, properly advised, the wife would not have brought it.
Although the wife’s income was found to be significantly less than the husband’s (at [68] and [74]), she owns a house in which she enjoys substantial equity of about $465,000 (at [71] and [74]) and her financial circumstances were otherwise unclear (at [67], [70] and [72]). The wife’s submissions implied her less favourable financial circumstances ought to have been singularly dispositive and resulted in the dismissal of the costs application, but unmeritorious litigation is no less unmeritorious because it is pursued by a self-represented person who claims impecuniosity (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
Plainly, the costs order was not punitive because the primary judge said it was not (at [82]), even if the wife perceives otherwise. Costs orders are never punitive and are only ever compensatory (Latoudis v Casey (1990) 170 CLR 534 at 543, 563 and 566–567).
The husband’s principal application for indemnity costs was refused (at [91]). Her Honour instead settled upon a sum reflecting the husband’s scale costs rather than his actual costs (at [91]–[93]). Normally, as was the case here, the award of costs is only a partial indemnity of the costs actually expended by the successful litigant (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [22], [33] and [60]).
Finally, the children’s best interests were not a consideration which influenced the outcome of the costs dispute under the terms of s 117 of the Act. As already observed, the paramountcy principle, enacted within s 60CA and s 65AA of the Act, only governs disputes over parenting orders under Pt VII of the Act. This was not a parenting dispute.
Disposition
The appeal is dismissed.
The husband initially sought indemnity costs of $36,363.05, but otherwise party/party costs of $21,702.24, which the wife opposed in all respects.
The claim for indemnity costs was abandoned. Party/party costs are awarded though because the appeal was wholly unsuccessful and should not have been brought, which considerations weigh more heavily than the wife’s proclaimed impecuniosity. The wife alleged she is now employed and earning an annual income of $110,000, but even if that is entirely spent meeting her expenses, her asserted lack of spare income and capital is not a shield protecting her from a costs order to partly recompense the husband for defending ill-considered litigation.
On the question of quantum, the husband’s scale costs were miscalculated at $21,702.24. The correct calculation was $17,222.78, but even that was a solicitor/client assessment using scale fees. A true party/party assessment using scale fees would yield a lesser amount. Because the appeal was misconceived, it made the husband’s task of defending the judgment easier. Resorting to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), party/party costs are fixed at $10,000.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 February 2025
0
5
3