Kusic & Kusic - [2023] FedCFamC2F 577

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kusic & Kusic [2023] FedCFamC2F 577

File number: DGC 3167 of 2021

Judgment of: JUDGE BLAKE

Date of judgment: 19 May 2023

Catchwords:
FAMILY LAW – Parenting – where child lives with mother – where child wishes to live with father because of her connection to the local community – bests interests considered – child should live with mother.

FAMILY LAW - Parenting – rights of parents to live where they choose – whether mother should relocate to Suburb B – whether father should relocate to Suburb C – relocation of parents not ordered.

FAMILY LAW - Child support – application to discharge child support order made by Court – evidence insufficient to make such an order.

Legislation:
Child Support (Assessment) Act1989 ss 117(4), 117(5), 117(5A), 117(6), 117(7), 117(7A), 117(8), 123A, 124, 125 129, 131

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 65DAA(1), 67Z, 67ZA, 102NA, 117.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.13.

Cases cited:
Adamson & Adamson [2014] FamCAFC 232

Sampson v Hartnett (No 10) [2007] FLC 93-350

Division: Division 2 Family Law

Number of paragraphs: 99

Date of hearing: 1, 2 & 23 February 2023

Advocate for the Applicant: In Person

Solicitor for the Applicant: None

Advocate for the Respondent: In Person

Solicitor for the Respondent: None

Solicitor for the Independent Children’s Lawyer: Mr Lynch
ORDERS

DGC 3167 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KUSIC

Applicant

AND:
MR KUSIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BLAKE

DATE OF ORDER:

19 may 2023

THE COURT ORDERS THAT:
1.The Orders made by the Court on 17 June 2019 be discharged except for the following orders which remain in full force and effect:
(a)Order 3 relating to the father’s obligation to pay $50 per week in additional child support; and
(b)Declaration 1 to the effect that the mother is entitled to make any application as she may be advised in Country D in respect of the father’s military pension.

2.The mother have sole parental responsibility for X born in 2010 (‘the child’).
3.The mother must notify the father of any proposed decision relating to the long-term care and welfare of the child.
4.The child live with the mother.
5.The child spend time with the father as follows:
(a)Every alternative weekend from 6.00 pm on Friday until 6.00 pm on Sunday (or 6.00 pm on Monday if Monday is a public holiday or pupil free day);
(b)For one half of the term 1, term 2 and term 3 school holidays as follows:
(i)For the first half of school holidays from 6.00 pm on the last day of the school term until 5.00 pm on the second Saturday of the school holidays in odd-numbered years and in alternative years thereafter; and
(ii)For the second half of school holidays from 5.00 pm on the second Saturday of the school…

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 Kusic & Kusic

Details

AGLC: Kusic & Kusic [2023] FedCFamC2F 577
Case: [2023] FedCFamC2F 577
Decision Date

CaseChat Overview and Summary

Kusic & Kusic is a matter in which the parents of a child, X, were required to make parenting orders for X. The primary dispute was whether X should live with her mother in Suburb C, or her father in Suburb B. The mother had purchased a home in Suburb C and moved there with X. The father opposed the move. The court heard evidence from the parents, the child, a child psychologist and a child court expert. The court found that X’s best interests would be served by her living with her mother in Suburb C, and spending alternate weekends and half of all school holidays with her father in Suburb B. The court also found that neither parent had the capacity to parent X, and that the mother should have sole parental responsibility for X. The court also declined to discharge an order for the father to pay child support to the mother.

Orders