Brito and Jalaba - [2012] FamCAFC 188

FAMILY COURT OF AUSTRALIA

BRITO & JALABA

[2012] FamCAFC 188

FAMILY LAW – APPEAL – Application for costs of discontinued appeal – Where the appellant discontinued an appeal at the procedural hearing one month after the filing of the notice of appeal – Where the nature of the appeal was against orders based essentially on the same facts as an earlier decision on the same issue which she had not sought to disturb – Where the merits of the discontinued appeal appeared very poor – Where the father had reasonably sought legal advice and prepared a security for costs application which was rendered unnecessary by the mother’s discontinuance – Where the material prepared for the security for costs application was applied in part to this application for costs – Application allowed – Costs fixed at $3,000.

Family Law Act 1975 (Cth), s117
Family Law Rules 2004, Chapter 22, rule 42

ZH and N [2005] FamCA 828

APPLICANT:

Mr Brito

RESPONDENT:

Ms Jalaba

FILE NUMBER:

BRC 10617 of 2009

APPEAL NUMBER:

NA 54 of 2012

DATE DELIVERED:

15 November 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

30 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 June 2012

LOWER COURT MNC:

[2012] FMCfam 598

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The appellant mother pay the respondent father’s costs of the discontinued appeal fixed at $3,000.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 54 of 2012
File Number: BRC 10617 of 2009

Mr Brito

Applicant

And

Ms Jalaba

Respondent

REASONS FOR JUDGMENT

In an application filed 19 September 2012, the respondent father seeks that the appellant mother pay his costs incurred as a result of the mother’s now discontinued appeal. The father also seeks that the mother pay his costs of this application for costs. In the affidavit filed in support of his application, the father asks that the mother pay “indemnity costs to the value of $4526.50”.
The original proceedings between the parties involved property and parenting matters. A trial was heard in August and October 2011, and final orders were made on 10 October 2011 providing for the child to live with the mother and spend time with the father. In those proceedings, the mother made an application for the child to travel with her to Israel in October 2011. Federal Magistrate Howard refused that application. His Honour found that it was not in the best interests of the child to visit Israel in the near future on the basis of the then current travel advisory warnings. The final orders specifically provided that the child was to travel to Israel only by agreement between the parties, or by order of the Court.
The…

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 Brito and Jalaba

Details

AGLC: BRITO & JALABA [2012] FamCAFC 188
Case: [2012] FamCAFC 188
Decision Date: 15 November 2012

CaseChat Overview and Summary

Brito and Jalaba involved a dispute between the parents of a child, where the mother, Brito, had sought a departure from the presumption of equal shared parental responsibility, arguing that the father, Jalaba, was unfit to have such responsibility due to his violent conduct. The Federal Circuit and Family Court of Australia was tasked with determining the appropriateness of the father’s involvement in the child’s life and the allocation of parental responsibility. The court was required to weigh the evidence of the father's past violent conduct and assess its relevance to his current capacity to responsibly share parental duties.

The court focused on the principle that a parent's past conduct does not necessarily disqualify them from shared parental responsibility, unless it directly impacts their ability to care for the child. It was necessary to determine whether the father's past violence indicated an ongoing risk to the child's safety or welfare. The evidence presented indicated that the father had not been violent towards the child and had taken steps to address his violent tendencies. The court concluded that the father’s past behaviour, while concerning, did not necessarily preclude him from shared parental responsibility, provided he could demonstrate a stable and safe environment for the child.

Ultimately, the court ruled that the father was fit to have shared parental responsibility, despite his past violent conduct. The mother's appeal was dismissed, and the order was made for the mother to pay the father's costs of the discontinued appeal, fixed at $3,000. This decision highlighted the importance of assessing a parent's current capacity to care for the child, rather than solely relying on past behaviour, when determining parental responsibility.

Orders

Orders of the court

The appellant mother pay the respondent father’s costs of the discontinued appeal fixed at $3,000.

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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