Koyroyshs & Koyroyshs

Case [2021] FedCFamC1A 54

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Koyroushs & Koyroyshs [2021] FedCFamC1A 54

Appeal from: Koyroyshs & Koyroyshs [2020] FamCA 626
Appeal number(s): EAA 128 of 2020
File number(s): SYC 2276 of 2016
Judgment of: AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
Date of judgment: 5 November 2021
Catchwords:

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge made final parenting orders – International relocation to Eastern Europe found not to be in the child’s best interests – Both parties restrained from removing the child from Australia – Both parties restrained from moving more than 30 kilometres from the child’s school – Procedural fairness – Findings of fact – Weight challenges – Adequacy of reasons – Consideration of evidence by the single expert – Restrictions on travel – Hague Convention – Findings open on the evidence – No error established – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Short marriage – Appeal against final property settlement orders – Contributions – Debts – Weight challenges – Adequacy of reasons – Application of law – Findings open on the evidence – No error established – Appeal dismissed –
Appellant to pay respondent’s costs in a fixed sum.

Legislation: Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:

Beaton & Beaton [2020] FamCAFC 297

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317

Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Deiter & Deiter [2011] FamCAFC 82

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Dublin, Wicklow & Wexford Railway Co vSlattery (1878) 3 App Cas 1155

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Sawant & Karanth [2014] FamCAFC 235

State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3

Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185

Number of paragraphs: 168
Date of hearing: 7 June 2021
Place: Sydney
Counsel for the Appellant: Mr Page QC
Solicitor for the Appellant: Consort Family Law
Counsel for the Respondent: Mr Batey
Solicitor for the Respondent: First Choice Family Lawyers
The Independent Children’s Lawyer: Did not participate in the appeal

ORDERS

EAA 128…

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AGLC
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Case
[2021] FedCFamC1A 54
Decision Date

CaseChat Overview and Summary

The case of Koyroyshs & Koyroyshs involved a dispute between the parties regarding the custody and care of a child. The father, challenging a decision made by the Family Court, appealed to the Full Court of the Federal Court of Australia. The central issue before the court was whether the Family Court judge had erred in his approach to determining the best interests of the child, particularly in relation to the application of the welfare principle. The court also needed to determine whether there was any bias or error in the way the evidence was considered and whether the outcome was unreasonable.

The court examined the Family Court's application of the welfare principle and the factors it considered in reaching its decision. The Full Court assessed whether the Family Court judge had correctly balanced the various factors relevant to the child's welfare, including the child's need for stability and the importance of the child maintaining a relationship with both parents. The Full Court also scrutinised the evidence presented and the conclusions drawn by the Family Court judge to ensure that the decision was based on a sound and logical assessment of the child's best interests.

The Full Court concluded that the Family Court judge had properly applied the welfare principle and had not erred in his approach. The court found that the Family Court judge had given appropriate weight to the relevant factors and had made a decision that was in the best interests of the child. Consequently, the appeal was dismissed, and the decision of the Family Court was upheld. The Full Court also ordered that the mother pay the father's costs of the appeal in the amount of $7,291.88, as the appeal had been wholly unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

His Honour’s reasons for the conclusion reached in [270] are entirely clear. This challenge is not made out.CONCLUSION AND COSTS The appeal will therefore be dismissed. In the event that the appeal failed the father sought an order that the mother pay his costs of the appeal. Although what might politely be termed an “ambit claim” to costs was filed by those acting for the father, in oral submissions counsel for the father sought an order for costs fixed in the sum of $7,291.88. The appeal has been wholly unsuccessful and it is appropriate that an order for costs be made against the mother.

Ratio Decidendi

Legal Principle Established

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