Gotch & Gotch

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.