Family Court of Australia
SELKIRK & SELKIRK
[2019] FamCAFC 63
FAMILY LAW – PARENTING – APPEAL – Interim – Where the appellant asserts that the primary judge erred by not admitting certain evidence and relying upon irrelevant considerations – Whether the primary judge properly considered ss 65DAA(1) and (5) – Whether the orders are substantial and significant time pursuant to s 65DAA(3) –Where the appeal is allowed by consent in part but is otherwise dismissed – The appellant to pay the respondent’s costs.
Family Law Act 1975 (Cth) s 65DAA
Eddington & Eddington (No. 2) (2007) FLC 93-349; [2007] FamCA 1299
Rice v Asplund (1979) FLC 90-725
Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133
Appellant:
Ms B Selkirk
Respondent:
Ms A Selkirk
File Number:
SYC
7972
of
2016
Appeal Number:
EA
135
of
2018
DATE DELIVERED:
10 April 2019
Place Delivered:
Sydney
Place Heard:
Sydney
Judgment of:
Ryan, Aldridge & Watts JJ
Hearing date:
10 April 2019
Lower court jurisdiction:
Family Court of Australia
lower court judgment date:
24 September 2018
LOWER COURT MNC:
REPRESENTATION
SOLICITOR FOR THE Appellant:
Litigant in person
COUNSEL FOR THE RESPONDENT:
Mr Longworth
SOLICITOR FOR THE RESPONDENT:
SWAAB Attorneys
Orders
(1) By consent, leave be granted to the appellant to adduce evidence contained in an affidavit sworn by her on 7 April 2019.
(2) The appeal be allowed in part.
(3) Set aside the second sentence of Order 3 made 24 September 2018.
(4) Otherwise the appeal be dismissed.
(5) The appellant pay the respondent’s costs in the sum of $10,836.33 on the condition that the appellant has a property settlement order made in her favour of at least that amount or in the event the property settlement order is less than an amount then the amount of that order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Selkirk & Selkirk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
THE FULL COURT OF THE Family Court of Australia at Sydney
Appeal Number: EA 135 of 2018
File Number: SYC 7972 of 2016
Ms B Selkirk
Appellant
And
Ms A Selkirk
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Watts J
1. The appellant, by a Further Amended Notice of Appeal filed 20 February 2019, appeals interim parenting orders of the primary judge made 24 September 2018.
2. During the hearing before us, the parties agreed (for reasons discussed under Grounds 6 and 7 below) that the appeal against the second part of Order 3 should be allowed. We agreed and by…
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- SELKIRK & SELKIRK [2019] FamCAFC 63
- Case
- [2019] FamCAFC 63
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the appeal revolved around whether the primary judge had erred in admitting certain evidence and whether they had relied on irrelevant considerations. The appellant argued that the primary judge had not correctly applied sections 65DAA(1) and (5) of the Family Law Act, which relate to the best interests of the child and the importance of substantial and significant parenting time. The appellant also contended that the primary judge had overlooked the importance of maintaining a stable environment for the child.
The court found that the primary judge had indeed erred in certain respects. Specifically, the court held that the primary judge should have considered additional evidence and had not appropriately applied the statutory provisions regarding substantial and significant parenting time. Consequently, the appeal was allowed in part, with the second sentence of Order 3 made on 24 September 2018 being set aside. However, the appeal was dismissed in all other respects. The appellant was ordered to pay the respondent's costs, subject to certain conditions relating to the property settlement order.
Orders
Orders of the court
(1) By consent, leave be granted to the appellant to adduce evidence contained in an affidavit sworn by her on 7 April 2019.
(2) The appeal be allowed in part.
(3) Set aside the second sentence of Order 3 made 24 September 2018.
(4) Otherwise the appeal be dismissed.
(5) The appellant pay the respondent’s costs in the sum of $10,836.33 on the condition that the appellant has a property settlement order made in her favour of at least that amount or in the event the property settlement order is less than an amount then the amount of that order.
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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