GUSTA and GUSTA - [2018] FCWA 164

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GUSTA and GUSTA [2018] FCWA 164
CORAM: THACKRAY CJ
HEARD: 16 - 19 JULY 2018
DELIVERED : 24 AUGUST 2018
FILE NO/S: PTW 7003 of 2017
BETWEEN: MR GUSTA
Applicant
AND
MS GUSTA
Respondent

Catchwords:

CHILDREN - With whom a child spends time - Relocation - Where the mother seeks to relocate to [Town A] for a defined period – Mother has previously made allegations suggesting there may have been sexual abuse by the father of the child which were found to have no factual foundation - Accepted neither parent would expose the child to harm - Order for equal shared parental responsibility - Practical difficulty of the father spending time with the child if mother permitted to relocate considered - Found in the child’s best interests to remain living in Perth - Mother not permitted to relocate - Father to spend substantial and significant time with the child although not as much time as the father proposed or as little as the mother proposed

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hedges
Respondent	:	Ms Farmer

Solicitors:

Applicant	:	Dimond Family Lawyers
Respondent	:	Carr & Co

Case(s) referred to in decision(s):

Sawant & Karanth [2014] FamCAFC 235

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The mother and the father are unable to agree about arrangements for their daughter [Lilly], aged four years. In particular, the father opposes the mother’s proposal to take Lilly to live in [Town A] until Lilly begins her secondary education in Perth. There is also a dispute as to whether the father should spend six consecutive nights a fortnight with Lilly during his rostered periods off work. The mother does not consider Lilly will cope with that arrangement and proposes that she have not more than four nights a fortnight with the father.

Background

2The parties met in 2009, commenced cohabiting in 2010, and married in 2012. Lilly, who is their only child, was born [in] 2014. She was only two when the parties separated in April 2016. Neither parent has re-partnered, although the father has a girlfriend.
3The father is aged 44 years. He is [a tradesperson], currently employed as a manager on a remote [location] in Western Australia. He spends eight days at the location and then six days in Perth. The father was previously married, but has no children other than Lilly.
4The mother is aged 51 years. She owns and operates [businesses] in Perth. She also has a 25 per cent stake in her family’s [restaurant] near [Town A] and assists in its running. She has two sons from a previous marriage, [Robert] and [Joe], both of whom are young adults.

Early care arrangements for Lilly

5The mother is a wealthy woman and the father was able to give up his work [as…

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 GUSTA and GUSTA

Details

AGLC: GUSTA and GUSTA [2018] FCWA 164
Case: [2018] FCWA 164
Decision Date: 24 AUGUST 2018

CaseChat Overview and Summary

In the Family Court of Australia, the case of GUSTA and GUSTA involved a dispute between the parents of a child regarding the mother's proposed relocation to a different city for a specified period. The mother sought to move to another town with the child, while the father opposed this relocation, arguing that it would negatively impact the child's ability to maintain a relationship with him. The case raised issues concerning the welfare and best interests of the child, the parents' respective roles in the child's life, and the implications of the mother's past allegations against the father.

The court had to determine whether the mother's relocation would be in the best interests of the child, considering the potential impact on the child's relationship with both parents. The judge examined the evidence provided by both parties, including expert opinions, and assessed the child's needs and the parents' capacity to meet those needs. The court also took into account the mother's previous allegations of sexual abuse against the father, which were found to have no factual basis. Despite the absence of any evidence to suggest that either parent would intentionally harm the child, the court found that the mother's proposed relocation would be detrimental to the child's best interests.

After carefully considering the evidence and arguments presented, the court determined that the child should remain living in Perth. The judge held that the father's ability to spend time with the child would be significantly impacted if the mother were allowed to relocate, and that this would not be in the child's best interests. The court also noted that both parents were committed to ensuring the child's welfare and had a genuine desire to maintain a relationship with the child. The final orders included an arrangement for equal shared parental responsibility, with the father spending substantial and significant time with the child, albeit less than the father had proposed and more than the mother had suggested. The mother was not permitted to relocate, and the court made clear that the father's time with the child was to be protected and prioritised.

Orders