Gotch & Gotch

Case [2009] FamCAFC 3


FAMILY COURT OF AUSTRALIA

GOTCH & GOTCH [2009] FamCAFC 3

FAMILY LAW – APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – Following trial in 2006 the Federal Magistrate made an order allowing the mother to relocate with the children to the USA and for the father to spend holiday time with the children in Australia – In 2008 the Mother applied to have the place of this holiday time changed to the USA both on an interim and a final basis– Father sought that the mother’s applications be dismissed – Mother stated that the children had expressed to her that they did not wish to travel to Australia but that they did want to see the father - Federal Magistrate dismissed the applications finding that no sufficient change in circumstance (Rice v Asplund) existed – Mother appealed this dismissal stating that the Federal Magistrate should have taken her case at its highest but instead conducted a fact finding exercise – The Federal Magistrate’s reasoning was inconsistent with taking the mother’s case at its highest or as established at face value – Treatment of the mother’s evidence of the children’s wishes involved an error in approach or denial of procedural fairness – Appeal allowed – Application for variation on a final basis and application for dismissal remitted – Mother’s application for interim variation dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Appeal allowed – Costs certificates under the Federal Proceedings (Costs) Act 1981 granted to both parties for the appeal

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Miller & Harrington [2008] FamCAFC 150
Rice v Asplund (1979) FLC 90-725
APPELLANT: Ms GOTCH
RESPONDENT: Mr GOTCH
APPEAL NUMBER: SA 77 of 2008
FILE NUMBER: BRC 5979 of 2007
DATE DELIVERED: 14 January 2009
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: Bryant CJ, Warnick and O'Ryan JJ
HEARING DATE: 8 December 2008
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 11 August 2008
LOWER COURT MNC: [2008] FMCAfam 898

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Nikou SC
SOLICITOR FOR THE APPELLANT: Berry Family Law
COUNSEL FOR THE RESPONDENT: Mr Galloway
SOLICITOR FOR THE RESPONDENT: BM Law

Orders

  1. That the appeal be allowed.

  2. That the orders of 11 August 2008 of the Federal Magistrates Court be set aside.

  3. That the mother’s application for the interim order sought in paragraph 5 of her application filed 30 June 2008 be dismissed.

  4. That, otherwise, the said application and the father’s response filed 6 August 2008 be remitted for rehearing to a Federal Magistrate other than Turner FM.

  5. That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation…

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Details
AGLC
Gotch & Gotch [2009] FamCAFC 3
Case
[2009] FamCAFC 3
Decision Date

CaseChat Overview and Summary

The appeal concerns a family law matter where the mother sought to vary a prior court order to allow her to relocate with the children to the USA and to change the location of the father’s holiday time from Australia to the USA. The father opposed these applications. The Federal Magistrate dismissed the mother's applications, finding that there was no sufficient change in circumstances warranting a variation of the existing order. The mother appealed this decision, arguing that the Federal Magistrate should have accepted her case at its highest and that there was an error in the approach to her evidence regarding the children’s wishes.

The legal issues before the court were whether the Federal Magistrate had erred in law by not accepting the mother’s case at its highest, and whether there was a denial of procedural fairness in the way the mother's evidence was treated. The court found that the Federal Magistrate had indeed failed to accept the mother’s case at its highest and had erred in the approach to her evidence regarding the children’s wishes. The court concluded that this was a significant error, leading to a miscarriage of justice.

Accordingly, the appeal was allowed. The orders of the Federal Magistrate dated 11 August 2008 were set aside. The mother’s application for an interim order was dismissed, while the other applications were remitted for rehearing to a different Federal Magistrate. Costs certificates were granted to both parties for the appeal under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the orders of 11 August 2008 of the Federal Magistrates Court be set aside.

3.

That the mother’s application for the interim order sought in paragraph 5 of her application filed 30 June 2008 be dismissed.

4.

That, otherwise, the said application and the father’s response filed 6 August 2008 be remitted for rehearing to a Federal Magistrate other than Turner FM.

5.

That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

6.

That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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