LUSITO & LUSITO

Case [2011] FMCAfam 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUSITO & LUSITO [2011] FMCAfam 55

FAMILY LAW – Parenting – lesbian relationship – child aged 8 years the biological child of one party – sperm donor father unknown – parties in relationship at time of child’s conception – child in primary care of non-biological parent since separation – both parties assessed to have significant psychological disorders – entrenched parental conflict – evidence of psychological splitting by child.

FAMILY LAW – Parenting – where provisions of s.60H(1)b)(i) met – non-biological parent found to be “parent” under the Family Law Act 1975.

FAMILY LAW – Parenting – where non-biological parent found to be primary carer – where child’s primary attachment found to be with biological parent – child expresses wish to live with biological parent – order that child live primarily with biological parent and have substantial and significant time with non-biological parent – order for modified sole parental responsibility order because of entrenched parental conflict, nature of co-parenting relationship and parties’ psychological vulnerabilities – expert evidence that biological mother unable to engage with non-biological parent and likely impact on her.
Family Law Act 1975 (Cth), ss. 60B(1), 60B(2), 60C, 60CC, 60CC(2), 60CC(3), 60CC(4), 60H, 60H(1)(b)(i), 61DA, 61DA(1), 61DA(2) – (4), 65C, 65DAA
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Goode & Goode (2006) FLC 93-286
Collu & Rinaldo [2010] FamCAFC 53
MRR v GR [2010] HCA 4
Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Re Mark [2003] FamCA 822
Bagley & Snell [2010] FamCAFC 8
Gottspiel & Rufus [2009] FamCA 512
Simpson & Brockman [2010] FamCAFC 37
Baker & Landon [2010] FMCAfam 280
Wilson and Anor & Roberts and Anor (No.2) [2010] FamCA 734
Maurice & Barry [2010] FamCA 687
Re J and M: Residence Application [2004] FMCAfam 656
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Runcorn & Raine [2008] FamCA 837
Pottinger & Bainton [2009] FamCA 124
Applicant: MS J LUSITO
Respondent: MS D LUSITO
File Number: BRC6775 of 2009
Judgment of: Purdon-Sully FM
Hearing dates: 27 & 28 October & 7 December 2010
Date of Last Submission: 7 December 2010
Delivered at: Brisbane
Delivered on: 21 January 2011

REPRESENTATION

Counsel for the Applicant: Ms McDiarmid
Solicitors for the Applicant: Cooper Grace Ward Lawyers
Counsel for the Respondent: Mr Jordan
Solicitors for the Respondent: DA Family Lawyers
Counsel for the Independent Children’s Lawyer: Mr Foley
Solicitors for the Applicant: Harrington Family Lawyers

ORDERS

  1. That the Independent Children’s Lawyer prepare a Minute of Orders to reflect this decision within seven (7) days of today’s date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC6775 of 2009

MS J LUSITO

Applicant

And

MS D LUSITO

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This case concerns a dispute between the applicant, Ms J Lusito, and the respondent, Ms D Lusito, in respect of the parenting…

Continue reading LUSITO & LUSITO

Sign in free to access the full text

Details
AGLC
LUSITO & LUSITO [2011] FMCAfam 55
Case
[2011] FMCAfam 55
Decision Date

CaseChat Overview and Summary

The case involved a dispute between two women in a lesbian relationship regarding the parenting of their eight-year-old child. One of the women was the biological mother, while the identity of the sperm donor was unknown. Both women had been in a relationship at the time of the child’s conception. The child had been primarily in the care of the non-biological parent since the separation of the parties. Both parties were assessed to have significant psychological disorders, and there was evidence of entrenched parental conflict and psychological splitting by the child.

The legal issues before the court included determining whether the non-biological parent qualified as a "parent" under the Family Law Act 1975 and whether it was in the child's best interest to live primarily with the biological parent or the non-biological parent. The court had to consider the provisions of section 60H(1)(b)(i) of the Act, which recognises a person who has assumed responsibility for the care, welfare, and development of a child as a "parent." Additionally, the court had to weigh the child's wishes, the nature of the co-parenting relationship, and the psychological vulnerabilities of both parties.

The court found that the non-biological parent qualified as a "parent" under the Family Law Act due to the provisions of section 60H(1)(b)(i) being met. Despite the child’s primary attachment to the biological parent and the child's expressed wish to live with the biological parent, the court determined that it was in the child's best interest to live primarily with the biological parent but to have substantial and significant time with the non-biological parent. The court also issued a modified sole parental responsibility order due to the entrenched parental conflict, the nature of the co-parenting relationship, and the psychological vulnerabilities of the parties. Expert evidence indicated that the biological mother was unable to engage with the non-biological parent, and the court considered the likely impact on the child.

The final orders included the preparation of a Minute of Orders by the Independent Children’s Lawyer within seven days of the decision date, reflecting the court's determinations regarding the child's primary residence and parenting arrangements.

Orders

Orders of the court

1.

That the Independent Children’s Lawyer prepare a Minute of Orders to reflect this decision within seven (7) days of today’s date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.