SELKIRK & SELKIRK - [2018] FamCA 852

FAMILY COURT OF AUSTRALIA

SELKIRK & SELKIRK

[2018] FamCA 852

FAMILY LAW – CHILDREN – Interim Parenting – Whether the children should spend more time with one parent – Where there are issues of past drug usage – Drug Testing – Ownership of Embryos.

FAMILY LAW – PROPERTY – Whether there should be an interim Property distribution.

Family Law Act 1975 (Cth)

Bearup and Bearup (1993) FLC 92-412; [1993] FamCA 72
Goode & Goode (2006) FLC 93-286
Marello & Marello (No. 2) [2011] FamCA 799
Marchant & Marchant (2012) FLC 93-520
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz v Archer (2008) 40 FamLR 212

Zschokke and Zschokke (1996) FLC 92-693

APPLICANT:

Ms A Selkirk

RESPONDENT:

Ms B Selkirk

FILE NUMBER:

SYC

7972

2016

DATE DELIVERED:

24 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

17 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson & Mr Longworth

SOLICITOR FOR THE APPLICANT:	SWAAB Attorneys
COUNSEL FOR THE RESPONDENT:	Ms Christie
SOLICITOR FOR THE RESPONDENT:	Tiyce & Lawyers

Orders

The Amended Application in a Case filed by the applicant on 1 August 2018 and the Response to an Application in a Case filed by the respondent on 6 June 2018 are dismissed.
The orders of 4 April 2017 and 13 June 2018 are to continue pending further order subject only to any variation of same set out in these orders.
Pending further order neither parent is to allow the children or any of them to view or participate in any manner in the use of any video game which is rated greater than “PG”. Where any of the children is permitted to participate in the use or observation of a video game which is rated “PG” then one of the parents must be present during the whole of the time any of the children is engaged in the use or observation of the video game to ensure any part thereof is excluded from view by any of the children, should the parent determine it is not age appropriate for the children.
I expedite the hearing of the final Application and Response to the Final Application in this matter.
The court recommends that the parties forthwith appoint a single expert, being a duly qualified child and family psychiatrist, to prepare a Family Report for the final hearing.
The court recommends that if the case has not been allocated a first day hearing date by the end of March 2019, the parties jointly agree to undertake further drug testing in the manner prescribed by the order of 13 June 2018 on the first Monday in April 2019 and the first Monday in July 2019.
Pending further order the respondent is restrained from having any of the children share her bed whilst there is any other adult person in that bed with her.

Note: The form of the order is subject to…

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.

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Details

AGLC: SELKIRK & SELKIRK [2018] FamCA 852
Case: [2018] FamCA 852
Decision Date: 24 September 2018

CaseChat Overview and Summary

In the matter of *Selkirk & Selkirk*, Le Poer Trench J considered applications concerning interim parenting arrangements and property distribution. The dispute involved questions regarding the children's time with each parent, particularly in light of past drug usage, and the ownership of embryos.

The court was required to determine whether the children should spend more time with one parent, the implications of past drug usage on parenting arrangements, and the necessity of drug testing. Additionally, the court addressed the issue of interim property distribution and the ownership of embryos.

Le Poer Trench J made several orders, including dismissing the applicant's Amended Application in a Case and the respondent's Response to an Application in a Case. Existing orders from April 4, 2017, and June 13, 2018, were to continue, subject to variations. These variations included restrictions on video game usage by the children, with a parent to supervise any "PG" rated games to ensure age appropriateness. The court also expedited the final hearing and recommended the appointment of a single expert child and family psychiatrist to prepare a Family Report. Further drug testing was recommended if a hearing date was not allocated by the end of March 2019. Finally, the respondent was restrained from having the children share her bed with another adult present.

Orders

Orders of the court

The Amended Application in a Case filed by the applicant on 1 August 2018 and the Response to an Application in a Case filed by the respondent on 6 June 2018 are dismissed.

The orders of 4 April 2017 and 13 June 2018 are to continue pending further order subject only to any variation of same set out in these orders.

Pending further order neither parent is to allow the children or any of them to view or participate in any manner in the use of any video game which is rated greater than “PG”. Where any of the children is permitted to participate in the use or observation of a video game which is rated “PG” then one of the parents must be present during the whole of the time any of the children is engaged in the use or observation of the video game to ensure any part thereof is excluded from view by any of the children, should the parent determine it is not age appropriate for the children.

I expedite the hearing of the final Application and Response to the Final Application in this matter.

The court recommends that the parties forthwith appoint a single expert, being a duly qualified child and family psychiatrist, to prepare a Family Report for the final hearing.

The court recommends that if the case has not been allocated a first day hearing date by the end of March 2019, the parties jointly agree to undertake further drug testing in the manner prescribed by the order of 13 June 2018 on the first Monday in April 2019 and the first Monday in July 2019.

Pending further order the respondent is restrained from having any of the children share her bed whilst there is any other adult person in that bed with her.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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