GUSTA & GUSTA

Case [2020] FamCAFC 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).

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

CaseChat Overview and Summary

In the Family Court of Australia, the case of GUSTA & GUSTA involved a dispute regarding the relocation of a child from Perth to Town A. The mother sought permission to relocate with the child, which the father opposed. The court was required to determine whether the relocation was in the child's best interests and whether the mother had established compelling reasons for the move.

The legal issues before the court included whether the mother had demonstrated compelling reasons for relocation and whether the court erred in its assessment of the evidence. The court had to consider the statutory criteria under the Family Law Act and the case law on relocation matters. The judge needed to weigh the evidence and determine if there were sufficient grounds for the relocation that would be in the child's best interests.

The court found no error of fact or law in the primary judge's determination that the relocation was not in the child's best interests. It concluded that the mother had not established compelling reasons for the move, and the evidence did not support a relocation. The appeal was dismissed, and the judge found that the mother was in a stronger financial position compared to the father. Therefore, an order was made for the mother to pay the father's costs of $30,000 within one month of the date of the orders.

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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