Brito and Jalaba
[2011] FMCAfam 1065
•10 October 2011
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 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.
ADDITIONAL CONSIDERATIONS
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.
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to weight it should give to the child’s views.
Noting the young age of the child, his views will not be taken into account.
Section 60CC(3)(b) – The nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
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.
[X] also spends time with other members of the paternal family including the grandparents. [X] has a good relationship with the paternal grandparents. There is nothing to suggest that [X] does not have a good relationship with the other members of the paternal family.
Unfortunately it is not so easy for the mother. Her extended family all live in Israel. [X] has therefore, to date, not been able to form any relationships with the extended maternal family.
Section 60CC(3)(c) – The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
Both parents understand the importance of the other parent’s role in [X]’s life.
The parents have facilitated and encouraged a close and continuing relationship between the child and the other parent.
Since late 2010 the child has been living eight nights per fortnight with the mother and six nights per fortnight with the father. Each parent has been facilitating the other parent’s time with the child. The child is well settled at his childcare centre situated at [E]. The evidence from that childcare centre reveals that the child is happy, content and making good progress.
The child speaks openly in each household about the other parent. The parents understand the importance of this.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom or she has been living.
There is no proposal from either party for the child to be “separated” from either of his parents. The only difference of opinion between the parties relates, in essence, to the precise arrangements by which [X] shall live in the mother’s household and by which [X] shall live in the father’s household.
Section 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Brisbane has, of course, grown into a large and busy city. The father lives on the south side of Brisbane in the suburb of [C]. The mother lives on the north side of Brisbane in the suburb of [N]. The mother is hopeful of moving somewhat closer to the city in the suburb of [E] (or nearby). There will always be practical difficulties in terms of travelling time, travelling expenses, traffic, et cetera in facilitating time with each parent. These are difficulties which face many separated families.
One solution put forward by the father is an order from the Court requiring the mother to move to the south side of Brisbane. I do not consider such an order to be appropriate in the circumstances of this case. I accept that the Court does have the power to issue such a mandatory injunction – compelling a parent to live in a particular place – (note the decision of the Full Court of the Family Court of Australia in Sampson & Hartnett (No. 10) [2007] FamCA 1365). However, that power, as noted by the Full Court, ought only be exercised sparingly – and then only if it is in the best interests of the child. I do not consider that it would be in the best interests of the child to compel the mother to move to the south side of Brisbane. I accept that the mother does not want to leave the north side. I accept the mother’s evidence that, essentially, she is happier and more at ease on the north side of Brisbane. In the aftermath of an acrimonious separation, the mother now finds herself well settled in north Brisbane. Noting that the mother has been the primary carer for the child since the child’s birth, I consider that it will not be in [X]’s best interests to compel the mother to live in a particular place – where she does not want to live.
Concerning practical difficulties and expenses et cetera, there is another relevant topic which impacts upon this consideration. That is the question of the child’s schooling. I will address that separately under the heading of education which I will refer to under Section 60CC(3)(m).
Section 60CC(3)(f) – The capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that each of the parents in this case has the capacity to provide for the needs of [X] including [X]’s emotional and intellectual needs. I note the report of Dr W. I refer to that report in more detail later in these reasons. He noted (essentially) that both parents have the ability to parent [X].
The father has several tertiary degrees. I have not doubt that the father has the capacity to provide financially for the child.
The mother is in the process of completing a diploma in [omitted]. I have no doubt that the mother has the capacity to also provide financially for the child.
The paternal grandfather certainly also has the capacity to provide financially for [X] and has generously offered to pay for a private school education. The father’s case in that regard was originally framed in terms of a particular school (namely the [G] School). But noting the way the case was actually conducted on behalf of the father – the offer to pay for a private school education (made by the paternal grandfather) was not confined to one particular school.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
[X], through the efforts of his mother, is able to speak Hebrew. The mother is fluent in English and Hebrew. It will be a great benefit to [X] if he also is able to become bilingual.
Having regard to the mother’s Jewish heritage, she is keen (understandably) to foster in [X] an understanding, love and involvement of the Jewish tradition and the Jewish faith. This includes the Hebrew language.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Both of the parents in this case have an appropriate attitude towards the child. As noted earlier, I have reached the conclusion that they have a close and loving relationship with the child.
The mother has fully accepted the responsibilities of parenthood and this has been demonstrated by her actions since the child’s birth.
I am also satisfied that the father has accepted the responsibilities of parenthood – subject to one particular point. I note that the father is a well educated man. He has several university degrees. But I do note that his current child support assessment is less than $10.00 per week. The father is actually paying, by way of child support, the amount of $50.00 per week. Frankly, I consider that the payment of a higher amount to the mother would more readily demonstrate that he has unconditionally accepted the responsibilities of parenthood. I have no doubt that the father provides very well for the child when the child is in his care.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
As noted earlier, there are allegations of family violence. I refer to my comments made earlier herein in relation to Section 60CC(2)(b). The comments I made in relation to that subparagraph are also relevant to Section 60CC(3)(j).
Section 60CC(3)(k) is not relevant.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Clearly it would be beneficial if an order could be made which is less likely to lead to the institution of further proceedings in relation to the child. To that end, a decision concerning the child’s education should be as detailed as the evidence will allow. I will refer to that aspect later in these reasons.
Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant.
Report of Dr W
Dr W (child, adolescent and adult psychiatrist) provided a report dated 10 October 2010. His report is annexed to an Affidavit filed 4 November 2010.
Dr W concluded that the mother does not suffer from either a major depressive disorder or a bipolar affective disorder. Furthermore, Dr W considered that there is, “not enough independent evidence to support a diagnosis of a personality disorder of any type in Ms Jalaba”. Dr W stated further that he had no concerns about the mother’s ability to parent her son. He also considered that, “as the main carer for [X] throughout his life (the mother) should continue to have a prominent role in his care. She does not require psychiatric intervention”.
Dr W went on to state:-
“Ms Jalaba had apparently been refused financial and accommodation support but once she identified herself (to Centrelink) as being abused these logistical hurdles were quickly overturned and she was provided with money and housing. While she alleged that she was slapped once and used for sex on one occasion without her permission, the majority of her allegations of abuse centre around Mr Brito’s verbal denigration, emotional and financial abuse and control. She has difficulty expressing any incidents of this abuse to either myself or the family report writer but now feels unable to communicate directly with Mr Brito as a result of this alleged abuse. The most compelling evidence of his emotional abuse that Ms Jalaba could recount was Mr Brito’s ‘looks of disappointment’ if his meals weren’t ready on time. I find it difficult to understand how somebody who [occupation omitted] could be intimated by a man who spends his time playing World of Warcraft.
I do not believe Mr Brito has a psychiatric disorder or is a danger to either Ms Jalaba or [X]. He should continue to exercise frequent and significant access with [X] but physical contact between the parents should be minimised by neutral handovers preferably at Day care or school”.
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’s evidence
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.”
To my mind the evidence of Ms Q from the witness box was clear. Because of the lack of cooperative communication between the parents, she considered that an equal time arrangement would not be in [X]’s best interests.
The parents in this case are unable to communicate verbally. They can only communicate via email. Unfortunately, the evidence reveals that there is a large amount of email traffic passing between these parents.
Ms Q’s opinion is that the child should live primarily with the mother. Furthermore, for the rest of 2011 and for all of 2012 (in 2012 [X] will be in his prep year of school) the current arrangements are appropriate – according to the evidence of Ms Q.
From 2013 (when [X] will be in grade one at school) Ms Q would support an arrangement whereby [X] lived nine nights per fortnight with the mother and five nights per fortnight (in a row) with the father. In addition, Ms Q would like to see some additional time in the off week with the father – taking the form of after school time up until after dinner. Such additional time could encompass soccer training for instance. (In relation to these matters generally note the evidence of Ms Q at page 102 of the Transcript).
Ms Q had the opportunity to see the parties and the child on more than one occasion. The reports were prepared one year apart. Ms Q assessed [X] to have a “close and loving relationship with each of his parents”.
I accept the evidence of Ms Q. My view is that Ms Q has given much consideration to [X]’s relationship with each parent and, furthermore, Ms Q has properly identified the lack of cooperative communication between the parties as a critical factor in this case.
Israel
The mother was born in Israel. Her parents and two sisters still live in Israel. The mother would like [X] to visit Israel. As noted earlier, the child is, or is on the way to becoming, bilingual in English and Hebrew. The mother is teaching the child aspects of the Jewish faith and Jewish traditions.
My view is that it is in the child’s best interests to, at some stage, visit Israel. This will be a benefit to the child because the child has relatives (members of the maternal family) living in Israel. The mother filed an Application in a Case in late September 2011 seeking an order allowing her to travel to Israel from 12 October 2011. The mother wants to take the child to Israel now so that the child could spend time with the maternal grandfather who has suffered from some ill health. The mother has set out her reasons for the urgency of the travel in an Affidavit filed 28 September 2011. To my mind, there is no medical evidence that would lead the Court to conclude that there is an urgent need to travel to Israel as a result of the maternal grandfather’s health.
That is not the end of the issue. It may well be convenient for the mother to travel to Israel with the child from 12 October 2011. However, there are other considerations. The issue has to be decided according to the best interests of the child. Note the decision of His Honour Federal Magistrate Connolly in Edgar & Dunshea [2005] FMCAfam 359 (1 April 2005).
The father is concerned about the child travelling to Israel in the near future. The father filed an Affidavit by leave on 3 October 2011. The father annexed a copy of the Australian Government’s Department of Foreign Affairs and Trade travel advice for Israel, the Gaza Strip and the West Bank as at 29 September 2011.
I note the first dot point from page one of the Australian Government’s travel advice:-
“We advise you to exercise a high degree of caution in Israel due to the high threat of terrorist attack. Attacks could occur at any time and anywhere in Israel”.
In the mother’s Affidavit filed 28 September 2011 she does not provide evidence confirming that she would not travel to the town or region of Ashdod. That is where the maternal grandmother lives. That is of concern because the Australian Government’s travel advisory information is as follows:-
“We strongly advise you not to travel to areas around the Gaza Strip in Southern Israel due to the possibility of mortar and rocket fire. In 2011, the Israeli cities of Ashdod (30 kilometres to the north of the Gaza Strip) and Be’er Sheva (40 kilometres to the east of the Gaza Strip) have been struck by rockets fired from the Gaza Strip”.
The mother, by her counsel (Mr McGregor), informed the Court on 3 October 2011 that she would agree not to travel to Ashdod. The mother wants to take the child to Tel Aviv in order to visit her father. The maternal grandparents are separated and live in different parts of Israel.
The mother’s actual evidence in her Affidavit filed 28 September 2011 states in paragraph 7, inter alia:-
“I am seeking orders as part of the substantive proceedings for [X] and I to be able to travel to Israel to see my family from time to time …”
I have come to the conclusion that the current travel warnings in relation to Israel generally and including the travel warnings concerning the region around the town of Ashdod are such that it would not be in the child’s best interests to visit Israel from 12 October 2011. An order directing the mother to only travel to certain parts of Israel is neither practical nor enforceable.
The nature of the current travel advisory warnings concerning Israel are so severe – that it is not in the child’s best interests to visit Israel in the near future as requested by the mother.
That is not to say that, at some stage in the future, it would not be appropriate and in the child’s best interests to visit Israel in order to spend time with the extended maternal family. The travel warnings no doubt change and are updated.
This is a case involving significant conflict between the parties. The mother has no other family in Australia – apart from [X]. The mother has no significant assets in Australia. In the future, if the mother is visiting Israel with the child – the mother could well be tempted not to return to Australia. In the particular circumstances of this case (noting especially the significant conflict between the parties) I consider that it is appropriate to order that the mother lodge a bond if she wishes to travel to Israel with the child in the future. I accept the uncontradicted evidence of the father that the mother’s family are wealthy. No attempt was made to lead evidence by the mother to contradict this evidence or explain the nature of her parents’ wealth. I infer that it was the mother’s extended family who were going to pay for her planned trip to Israel from 12 October 2011. In the light of the evidence I have concluded that the mother will have access to funds (from her family) to lodge a bond when she travels to Israel. That bond should be in the amount of $15,000.00.
Health
Unfortunately, the parties have been at cross purposes on the issue of health. Mr Selfridge of counsel has suggested certain orders that would require the parties to attend upon particular doctors and I do consider that such an approach is appropriate in this case.
Education
As noted earlier, the paternal grandfather has offered to pay for a private school education for the child. The mother is, it seems, philosophically opposed to private school education. The father himself was education at [C] School in Melbourne.
The father gave consideration to [B] School and the [G] School.
Mr Drysdale of counsel, on behalf of the father, also suggested to the father (and he agreed) that the [R] School could also be appropriate.
I am prepared to take judicial notice of the fact that the [R] School is non-denominational. There was no further evidence led, though, concerning the academic and extra curricular curriculum at the [R] School. The parents in this case do not have the financial wherewithal to personally pay for a private school education for the child. The Court cannot make an enforceable order against the paternal grandfather on this issue. My view is that there should not be an order for a private school education for [X] based upon the current evidence and the current way the case is framed.
As noted earlier, the father lives at [C] and, because his step daughters attend the [W] School (apparently close to [C]) he is not in a position to move from the south side of Brisbane. I do not consider that the [W] school is in the child’s best interests. That school is on the south side of Brisbane – whereas the child will be living primarily on the north side.
The mother currently lives at [N] but is hoping to obtain a housing commission home in the [E] area. The mother, it seems, has been on a waiting list for quite some time.
Given that the final orders will provide for a nine/five split across a fortnight (as well as additional time in the off week), my view is that it will be in the child’s best interests if a school can be located somewhere between the two parties. Ms Q accepts that this approach is a “potential solution”. (Note Transcript page 93 line 10). A suitable school located between the two parties should be found.
I note the argument put forward on behalf of the mother that the child has been attending the [E] Child Care facility. The argument is to the effect that it would benefit the child to attend a primary school in that general area.
Noting that the child will not even commence his prep year until 2012, I consider that the child will have an ample opportunity to make friends during his prep year in the lead up to grade one. There is no evidence that the child has any difficulty forming friendships. Because of the child’s young age – this is not the type of case where a “change of school” consideration needs to be taken into account.
Mr McGregor (counsel on behalf of the mother) referred the Court to the decision in Eden & Eden-Proust [2011] FamCAFC 138.
There is, to my mind, an essential factual difference between that case referred to by Mr McGregor and the case currently before the Court. I note the comment by Thackray J on page 14 of the decision in Eden – to the following effect:-
“It makes sense for a child to attend the school closest to the home in which he spends the majority of his weekdays”.
This is a concept which would have more weight in some cases than in others. In particular, in the current case before the Court there is no evidence confirming the suburb in which the mother will be living. The other currently lives in the suburb of [N]. That suburb is on the north side of Brisbane. The mother wants to move to the [E] area. The mother is awaiting a housing commission home. The mother has been on that waiting list for some time with no luck. Whilst it may well be the mother’s preference to obtain a house in the [E] area – it has not yet happened and there is no guarantee that it will happen. There is simply no evidence to confirm precisely in which suburb the mother is likely to obtain a house. There is nothing in the decision (referred to by Mr McGregor of counsel) of Wainder & Wainder [2011] FamCAFC 155 (22 July 2011) that alters my view in this regard.
There may be scope for the mother to consider basing herself in a suburb closer to the city of Brisbane than [N] or [E] – but nonetheless remaining firmly on the north side of the Brisbane River – in accordance with the mother’s stated wishes.
Given the high level of conflict in this particular case, I do consider it will be in the child’s best interests if the schooling issue can be finalised once and for all within the context of these current proceedings. The parties should submit proposals for schooling by way of short Affidavit and a letter containing a submission so that the final order can contain the name of a primary school (and possibly a high school) depending upon the submission.
Section 60CC(4) [Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent]
The comments and reasons given in relation to Section 60CC(3)(i) are relevant to this subsection.
Section 61DA Presumption of equal shared parental responsibility when making parenting orders
In this particular case I consider that the presumption does apply. Concerning the allegations of family violence, it will noted that I have taken the view that it will not be in the child’s best interests for any particular findings to be made in that regard. I also note the comments of Dr W that each party’s claims are unsubstantiated by any independent evidence. Further, I note the evidence of Ms Q that the domestic violence referred to by the parties in no way impacted upon the child.
Even if my view is incorrect and the presumption is rebutted – I would nonetheless make an order for equal shared parental responsibility in any event (irrespective of Section 61DA).
In my view, these parents do need to communicate (even if it is only by email) in relation to the important issues in [X]’s life.
There needs to be some orders also dealing with the ongoing resolution of parental conflict and dispute.
Section 65DAA
Because there is to be an order for equal shared parental responsibility the Court is, of course, required to consider Section 65DAA. Section 65DAA(1) states:-
“65DAA(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Having regard to the level of conflict between the parties; the inability to communicate in a cooperative manner and the opinion of Ms Q to the effect that equal time with each of the parents is contra indicated – I have reached the conclusion that an order for equal time would not be in the child’s best interests.
I should also consider the question of reasonable practicability. If the child attends a school which is situated somewhere between the mother’s residence and the father’s residence then it would be reasonably practicable for such an order to have been made.
There is nothing in the decision of the High Court in MRR v GR [2010] HCA 4 which would indicate against a finding that it would be reasonably practicable for such an order to be made.
However, having already concluded that it would not be in [X]’s best interests for an equal time order to be made – such an order will not be made.
Section 65DAA(2) – Substantial and significant time
65DAA(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
The current orders that are in place are orders which would come within the “definition” of, “substantial and significant time” which is contained in Section 65DAA(3) of the Act.
Having regard to the matters set forth in Section 65DAA(5) and noting the reasons stated earlier concerning “reasonable practicability” I am of the view that if the child attends a school situated somewhere between the parents then I consider that the parents do have and will have the capacity to implement an arrangement for substantial and significant time with each of the parents. I do consider that the parents will be able to communicate at a sufficient level to implement an arrangement whereby the child lives primarily with the mother and spends substantial and significant time with the father. The proposed final orders do come within the definition of “substantial and significant” time.
Conclusion
I have reached the conclusion that it would be in [X]’s best interests to live primarily with the mother. For the rest of 2011 and throughout 2012 – the current arrangements should remain in place. From the beginning of the school year in 2013 the child should live primarily with the mother (nine nights per fortnight) and then spend substantial and significant time with the father (five nights in a row per fortnight). In addition, the child shall spend time in the off week with the father from after school until, say 7.30 p.m.
Holiday time should be shared. There should be appropriate orders for Father’s Day, Mother’s Day and family birthdays.
There should also be appropriate orders concerning travel to Israel. There should also be appropriate orders covering both Jewish holidays and celebrations as well as Christian holidays and celebrations. I accept that the father is from a Christian background.
PROPERTY
The parties in this case were also unable to agree on property settlement orders. The parties appear to have very little by way of property.
Nonetheless the Court is required to adopt the usual four step approach. The four step approach has been confirmed by the Full Court of the Family Court of Australia in cases such as Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. The four steps outlined in Hickey & Hickey are:-
a)ascertain the net property pool;
b)assess the contributions made by the parties as required by section 79 of the Act;
c)consider the matters contained in section 75(2) of the Act; and
d)ensure the order proposed be just and equitable.
A very minor amount of time was spent at the trial of this matter on property issues. Clearly, that is because there is so little to fight over. In paragraph 452 of the husband’s Affidavit filed 11 July 2011 he has listed a table of assets and liabilities. I have not been able to locate any table of assets and liabilities put forward on behalf of the wife.
The table of assets and liabilities set out by the husband is as follows:-
Description
Ownership
Est. value
Assets
Mazda 626 motor vehicle
Ms Jalaba
$6,500
Toyota Landcruiser motor vehicle
Mr Brito
$6,500
Household furniture and effects
Mr Brito
$6,000
Household furniture and effects
Ms Jalaba
$6,000
ING Savings Maximiser Account
Mr Brito
$97
HSBC Account (locked)
Mr Brito
$142
ANZ Access Advantage Savings
Mr Brito
$129
[A] Pty Ltd
Mr Brito
$1,500
[W] Pty ltd
Ms Jalaba
Negligible
Liabilities
ANZ Gold Visa Account
Mr Brito
($6,756)
Loan from Mr B
Mr Brito
($160,820)
Loan from St Vincent De Paul
Ms Jalaba
($568)
Superannuation
[omitted]
Mr Brito
$63,057
Total
($78,219)
To my mind the loan from Mr B must be deleted from the above pool. It is apparent from the evidence that Mr B lent money to his son to assist his son with legal costs. Mr Drysdale of counsel (on behalf of the husband) has conceded that that amount ought not be included in the pool. That leaves a total pool of approximately $82,600.00.
I have accepted the husband’s evidence in relation to the content of the pool. (Subject to the disallowance for the loan from Mr B). This is because the husband clearly has the control of the bank accounts. My attention has not been drawn to any evidence confirming the amount of money in the bank accounts as at the date of separation. I specifically asked Mr McGregor of counsel about that issue. He was unable to assist the Court in that regard. In those circumstances, it seems to me that it is more prudent for the Court to accept the evidence as to the pool as outlined by the husband. In any event the parties separated two years ago. There may well have been changes to the pool in those two years (for any number of reasons).
Contributions
The parties were together from approximately September 2004 until approximately November 2009 – a period of about five years.
From paragraph 273 of the wife’s Affidavit filed 11 July 2011 it is apparent that she had household and personal items to the value of approximately $9,000.00 at the commencement of the relationship.
The wife, with leave, adduced further evidence in chief in the witness box. The wife corrected paragraph 279 of her Affidavit. The wife’s corrected evidence is that she did in fact have an ATM card during the relationship. This was a card that was linked to the husband’s bank account. I accept that the wife had access to the money in that account as needed for family purposes – including expenses for the child.
I do not accept that the husband controlled the wife in respect of finances. It does seem to be the case that the parties had very little spare money. Understandably, therefore, the parties discussed their finances regularly.
The parties, it seems to me, contributed equally to this very modest pool. Whilst it is the case that the husband had available the greater financial contributions at the outset and also made the greater financial contributions during the relationship, the wife nonetheless was the primary carer for the child.
Noting the small pool and the relatively short relationship and noting also the fact that the wife has provided the majority of the post separation contributions in providing and caring for the child – I have reached the conclusion that the contributions based entitlements of the parties in respect of this very modest pool should be assessed at 50/50.
Section 75(2)
As noted previously the wife is currently studying a diploma in [omitted]. She hopes eventually to be able to earn an income as a [omitted]. The mother has no other tertiary qualifications.
The husband is an [occupation omitted] and he is also running a part time [omitted] business. The husband’s income for the most recent financial year (the financial year ended 30 June 2011) was $39,000.00.
Given that the wife will have the primary care of the child and noting that the husband has a greater earning capacity than the wife, my view is that there should be an adjustment under section 75(2) in favour of the wife. That adjustment should, in my view, be 15%.
Justice and equity
In my view an order whereby the wife receives 65% and the husband receives 35% of this modest pool of assets is, in the circumstances of this case, just and equitable.
CONCLUSION
I will allow to the parties 21 days to 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.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Howard FM
Date: 10 October 2011
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