Brito and Jalaba - [2011] FMCAfam 1065

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRITO & JALABA

[2011] FMCAfam 1065

FAMILY LAW – Parenting – travel to Israel – education – property.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75(2) & 79

Eden & Eden-Proust [2011] FamCAFC 138
Edgar & Dunshea [2005] FMCAfam 359 (1 April 2005)
Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
MRR v GR [2010] HCA 4
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Wainder & Wainder [2011] FamCAFC 155 (22 July 2011)

Applicant:

MR BRITO

Respondent:

MS JALABA

File Number:

BRC 10617 of 2009

Judgment of:

Howard FM

Hearing dates:

8 & 9 August 2011 & 3 October 2011

Date of Last Submission:

3 October 2011

Delivered at:

Brisbane

Delivered on:

10 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Drysdale

Solicitors for the Applicant:

Barry Nilsson Lawyers

Counsel for the Respondent:

Mr McGregor

Solicitors for the Respondent:

Sarah Cleeland Family Lawyers

Counsel for the Independent Children’s Lawyer

Mr Selfridge

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That within 21 days the parties shall provide to the Court draft orders to reflect the Reasons for Judgment.
The mother’s Application in a Case filed 28 September 2011 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 10617 of 2009

MR BRITO

Applicant

And

MS JALABA

Respondent

REASONS FOR JUDGMENT

BACKGROUND

This is an application for parenting orders involving one child, [X] born [in] 2006.
The Applicant father is Mr Brito. He was born [in] 1973 in Australia.
The Respondent mother is Ms Jalaba born [in] 1972 in Israel.
The parties commenced cohabitation in approximately September 2004.
The parties separated on a final basis in approximately November 2009.
The parties have been unable to agree in relation to parenting orders.
Furthermore, the parties have been unable to agree how to divide their property.

PARENTING

The decision concerning parenting must, of course, bear in mind the paramount consideration set out in Section 60CA of the Family Law Act 1975. That section states:-
“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. The primary considerations are set out in Section 60CC(2). That subsection states:-
“Section 60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
It is apparent from the evidence of the family report writer (Ms Q) that…

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 and Jalaba [2011] FMCAfam 1065
Case: [2011] FMCAfam 1065
Decision Date: 10 October 2011

CaseChat Overview and Summary

In the case of Brito and Jalaba, the primary issue before the court was to determine the best interests of the child, [X], in relation to his living arrangements post the separation of his parents. Both parents had made polarised allegations against each other, which were unsupported by external evidence, as noted by Dr W. Neither parent was found to suffer from any psychiatric condition, and both were deemed capable of providing proper care for [X]. Ms Q, a social worker, provided reports detailing the high degree of mistrust and conflict between the parents, recommending a five and nine days split in living arrangements to mitigate potential harm to the child from parental conflict.

The legal issues before the court included determining the primary considerations outlined in Section 60CC(2) of the Act, which require the court to consider the benefit to the child of maintaining a meaningful relationship with both parents and the necessity to protect the child from physical or psychological harm. The court also needed to consider the additional factors set out in Section 60CC(3), such as the child's relationship with the parents and their respective new partners. The court concluded that it was not in the child's best interests to make specific findings regarding the allegations of domestic violence due to the lack of detailed cross-examination on these issues. The court found that the child had close and loving relationships with both parents and their respective partners, and it was in the child's best interest to maintain a stable living arrangement that minimised conflict and promoted his well-being.

The court's reasoning was based on the evidence presented by the social worker, the observations of the child's relationships, and the potential for conflict to negatively impact the child. The court ordered that within 21 days, the parties must provide draft orders reflecting the reasons for judgment and dismissed the mother's application filed on 28 September 2011.

Orders

Orders of the court

That within 21 days the parties shall provide to the Court draft orders to reflect the Reasons for Judgment.

The mother’s Application in a Case filed 28 September 2011 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr W had pointed out earlier in his report that, “this case is based on polarised allegations by both parties about each other that are unsupported by external impartial evidence”. I accept the evidence of Dr W. Neither party sought to cross examine Dr W. As Dr W pointed out, the parties’ respective allegations made against each other were not supported by “external impartial evidence”. Neither party suffers from any psychiatric condition according to Dr W. Both parties are able to properly parent and care for [X]. Ms Q (social worker) provided a family report initially in this case dated 24 March 2010. That report is annexed to an Affidavit filed 29 March 2010. Ms Q’s second report is dated 23 March 2011. It is annexed to an Affidavit filed 25 March 2011. In her later report Ms Q noted the conflict between the parents. Ms Q stated, inter alia:-“94. The parents present as having a high degree of mistrust and feelings of antipathy toward each other. In light of this it is probably best that their communication be kept to a minimum especially in front of [X] so that he does not directly experience their attitudes toward each other.…106. [X] is a much loved child. Each parent is capable of parenting him appropriately. The parents plan to continue living some distance apart which will make an equal shared parenting arrangement impractical. I would also have some concern in the scenario of [X] spending equal time in each household that his parents’ inability to co-operate and their attitude toward each other may cause him problems.” I note the Transcript at page 83 of 9 August 2011 (from line 20):-“Mr Drysdale: May I ask you this: what was the basis for your opinion that the child should live predominantly with the mother?Ms Q: The fact that she had been the child’s primary carer from the outsight – outset; that I thought that she was more overtly supportive with [X] of his relationship with the father and more aware of the importance of that relationship, and, I guess, also because I thought the conflict between the parents meant that a shared equal time arrangement, of which neither of them was proposing at that time, but I did turn my mind to that, might be detrimental for [X] because of the conflict between his parents.” I accept this evidence of Ms Q. It is apparent from Ms Q’s evidence at pages 87 and 88 (9 August 2011) of the Transcript that she is proposing a “five and nine days split”. The further evidence of Ms Q (at page 89 of the Transcript) is that the current arrangements should continue during the child’s prep year (2012). (Note page 89 approximately line 25). In relation to the question of the level of communication and cooperation between the parties I note further the evidence of Ms Q from page 91 of the Transcript:-“Mr Drysdale: Yes. And in some respects, could I suggest that the level of communication with the changeover – with one night a week and on the weekend, isn’t much different from if it’s weekabout?Ms Q: I would say it was very different.Mr Drysdale: And why do you say that?Ms Q: The only – if it’s one night each week, the opportunity to communicate is potentially more, in that they might see each other more, but there’s less chance of them needing to communicate about things that happen. If it’s a weekabout arrangement, everything that happens in that previous week needs to be – or a lot of it needs to be communicated so that that next person knows what [X]’s routine is for the following week, and it might be homework, projects, sporting routines, events. A lot of that can be done by handing on notes and the like, but if something is forgotten, if there’s a problem with that, that can create all kinds of conflict and I would be concerned with these parents that that would be insurmountable for them to cope with that – the kind of conflict and the kind of flexibility that you need to have that kind of an arrangement.Mr Drysdale: Well, there would have to be communication in respect of each night – there’s the same potential for that for each night [X] is spending with the father or the mother, if he’s spending more time with the father?Ms Q: If it’s the same night each week, generally it’s the same routine. There wouldn’t be a great deal of need to communicate about that and then you would have the alternate weekend, and usually weekend activities can be confined to that weekend. So things like homework can be done earlier and sent to school with the one parent. Activities that happen during the week, the father can organise the activities – he has him on the same night, he can organise those activities in his time. If the mother has activities, she knows what nights she has got the child and she can organise that in her week.Mr Drysdale: And - - -?Ms Q: Sorry, her – the nights that she has [X].Mr Drysdale: But the reality is it still involves the parties having to have a level of cooperation and a level of communication?Ms Q: What does?Mr Drysdale: You say it’s less but there still is required to be a level of communication between them, whether it by email or otherwise, because there could be – the child has got something on on the weekend, there’s going to have to be communication about that if it’s the father’s weekend or the mother’s weekend?Ms Q: Well, I would assume that would be similar to what happens now that if there’s something on someone lets them know, but what I’m trying to say is that when the parents know which weekend it is, they can organise those things for their weekend knowing that that’s what is going to be happening. When it’s a weekabout arrangement there’s a lot more opportunities for things to be happening in that other household when you don’t have the child so it’s much more difficult to arrange those things.Mr Drysdale: It simply involves a longer email?Ms Q: It could do. It’s when it’s conflictual and when people need to be flexible that you’re likely to run into problems.Mr Drysdale: What do you think about the father’s view that he considers that once all the court case is over, matters are likely to settle down between them?Ms Q: I was fairly optimistic in my first report about the capacity for that, and that hasn’t unfolded. So I would be fairly sceptical that things would settle down, but I guess it’s always possible.Mr Drysdale: See once final orders are made there’s no benefit to either party in continuing the blue, is there?Ms Q: It depends on what benefit they’re getting out of it in the first place.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. The primary considerations are set out in Section 60CC(2). That subsection states:-“Section 60CC(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” It is apparent from the evidence of the family report writer (Ms Q) that there are benefits to the child in this case of having a meaningful relationship with both the mother and the father. Having had the opportunity to observe the parties give their evidence – I have reached the same conclusion. I accept the evidence of the report writer in that regard. Unfortunately, the parties’ separation and the parties’ relationship post separation have continued to be characterised by conflict. There has been an inability for the parties to converse in a civil manner. I note that there are allegations by the mother of domestic violence against the father. Furthermore, there are allegations by the father of domestic violence against the mother. There was no detailed cross examination by any of the counsel involved in the case on these issues. I do note the evidence of Ms Q concerning the domestic violence. Ms Q’s view was that there was no domestic violence involved in this case which would impact or was impacting upon [X]. In the context of this particular case, I have formed the view that it will not be helpful to these parents for the Court to make any specific findings concerning the allegations of domestic violence. Section 60CC(3) sets out the additional considerations which the Court must take into account when determining what is in a child’s best interests. Noting the young age of the child, his views will not be taken into account. It is apparent that the child has a close and loving relationship with the mother. It is also apparent that the child has a close and loving relationship with the father. These facts were essentially confirmed by the parents in their evidence. It is also confirmed by the evidence of Ms Q. This child is also familiar with the father’s new partner, Ms B and her three daughters. The child has a good relationship with Ms B and the three girls. The mother acknowledged that fact in her evidence. This was confirmed by the father. I had the opportunity to observe Ms B give evidence in the witness box. Ms B impressed me as a sensible and caring person who was well able to assist the father in looking after [X] when [X] is living in their household. It should be noted at this point that in approximately May 2011 Ms B and her three daughters commenced living in the house occupied by the father at [C], Brisbane. The child, [X], is in fact so fond of Ms B’s three children that he was quite upset when he thought that the eldest of the three girls had left and was not returning. [X] calmed down when it became apparent that the eldest daughter was returning. Apparently that child had been spending some time with her own father.