GUSTA & GUSTA

Case [2020] FamCA 228

FAMILY COURT OF AUSTRALIA

GUSTA & GUSTA [2020] FamCAFC 228

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother sought to relocate with the child from Perth to Town A – Relocation found not to be in the child’s best interests – Weight challenges – Consideration of whether “compelling reasons” for relocation were impermissibly required – No error of fact or law established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother has been wholly unsuccessful and the father has incurred unnecessary expense – Mother in stronger financial position – Costs order made against the mother.
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65DAA, 69ZN(6), 93A(2)
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Beckham & Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6
Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133
APPELLANT: Ms Gusta
RESPONDENT: Mr Gusta
FILE NUMBER: PTW 7003 of 2017
FIRST APPEAL NUMBER: WEA 5 of 2019
SECOND APPEAL NUMBER: WEA 4 of 2019
DATE DELIVERED: 11 September 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Perth
JUDGMENT OF: Ryan, Kent & O'Brien JJ
HEARING DATE: 16 October 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE:

21 November 2018 &

4 January 2019
LOWER COURT MNC: [2018] FCWA 259;
[2019] FCWA 2

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Ingleby
SOLICITOR FOR THE APPELLANT: Carr & Co
COUNSEL FOR THE RESPONDENT: Mr Hedges SC
SOLICITOR FOR THE RESPONDENT: Dimond Family Lawyers

Orders

  1. The mother’s Application in an Appeal filed 1 February 2019 to adduce further evidence be dismissed.

  2. Appeals WEA 5 of 2019 and WEA 4 of 2019 be dismissed.

  3. The mother pay the father’s costs in the amount of $30,000 within one (1) month of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gusta & Gusta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF…

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AGLC
GUSTA & GUSTA [2020] FamCA 228
Case
[2020] FamCA 228
Decision Date

CaseChat Overview and Summary

The appeal concerned parenting orders made by the Family Court of Australia. The mother sought to relocate with the child from Perth to Town A, but this application was ultimately found not to be in the child's best interests. The mother appealed this decision, challenging the weight given to certain factors and arguing that the court impermissibly required "compelling reasons" for the relocation.

The primary legal issue before the Full Court of the Family Court was whether the primary judge erred in fact or law in determining that the proposed relocation was not in the child's best interests. A secondary issue related to the costs order made against the mother.

The Full Court found no error of fact or law in the primary judge's decision. The court reasoned that the primary judge had properly considered all relevant factors in assessing the child's best interests and had not imposed an improper burden on the mother to demonstrate "compelling reasons" for the relocation. The court dismissed the mother's application to adduce further evidence on appeal and dismissed the appeals themselves.

The Full Court ordered that the mother pay the father's costs in the amount of $30,000, noting that the mother had been wholly unsuccessful, the father had incurred unnecessary expense, and the mother was in a stronger financial position.

Orders

Orders of the court

1.

The mother’s Application in an Appeal filed 1 February 2019 to adduce further evidence be dismissed.

2.

Appeals WEA 5 of 2019 and WEA 4 of 2019 be dismissed.

3.

The mother pay the father’s costs in the amount of $30,000 within one (1) month of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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