SELKIRK & SELKIRK
[2019] FamCAFC 63
•10 April 2019
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:
[2018] FamCA 852
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 consent that part of the orders shall be set aside. The remainder of the appeal will be dismissed and the Court is of the unanimous opinion that it does not raise any question of general principle. My reasons in short form follow (see s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”)).
3. The parties were in a same sex marriage or de facto relationship (depending upon whether or not their Country B marriage is recognised in Australia). There are three children of the relationship. The respondent carried all three to term and is the biological mother of the elder twins born in 2010 (aged eight) and the appellant is the biological mother of the youngest child born in 2014 (aged five).
4. The parties separated in October 2016. The respondent commenced parenting and property proceedings in December 2016 and interim consent orders were made on 12 December 2016 and 4 April 2017 relating to parenting arrangements.
5. The consent orders made by Rees J on 4 April 2017 provided that the children live with the respondent and spend time with the appellant four nights per fortnight, for block periods of five nights in each school holiday period and three blocks of five nights in the summer school holidays.
6. The applications before the primary judge were contained in an Application in a Case filed by the respondent to this appeal on 13 April 2018 (further amended on 1 August 2018). In that application the respondent sought, amongst other things, to cease the children’s overnight time with the appellant and to restrain the parties from allowing the children to share a bed with any adult other than the parties themselves.
7. The appellant filed a Response to the Application in a Case on 6 June 2018, resisting the orders sought by the respondent and seeking, amongst other things, the following:
a) An increase in the time the children spend with the appellant from four nights a fortnight to five nights a fortnight in school terms (Order 4) and to further increase to six nights a fortnight once the appellant had “obtained accommodation” (Order 5);
b) An increase in the time the children spend with the appellant during the school holidays to equal time (and on a week about basis in the December/January holidays) (Orders 6 and 7);
c) The children spend time with the parties on the parties’ birthdays and with the appellant each Christmas (Orders 8, 9 and 10);
d) The children have a FaceTime call with the appellant each week (Order 11);
e) A discharge of Order 20 made by consent on 4 April 2017 in relation to video games which would mean the parties would thereafter be at liberty to exercise day to day parental responsibility in relation to video games (Order 2); and
f) A discharge of the undertaking given by the appellant to the court on 4 April 2017 not to go within 25 metres of the respondent’s residence (Notation 27).
8. The primary judge made orders in relation to video games and who can share a bed with the children but otherwise dismissed the interim applications sought by each of the parties and ordered that the consent orders made on 4 April 2017 continue. The primary judge expedited the final hearing and recommended that the parties appoint a single expert, being a qualified child and family psychiatrist, to prepare a family report for the final hearing. His Honour also made some recommendations in relation to further drug testing.
9. Counsel for the respondent informed us that the matter has since been placed in a judicial docket and a final Less Adversarial Trial has commenced, an Independent Children's Lawyer has been appointed and an order made for a forensic psychiatrist to provide a Chapter 15 report with interviews scheduled in October 2019.
Application in an appeal to rely upon further evidence filed 26 march 2019
10. By consent, the appellant has been granted leave to adduce further evidence contained in an affidavit sworn by her on 7 April 2019.
Grounds of Appeal
11. The Further Amended Notice of Appeal filed 20 February 2019 sets out 11 grounds of appeal which I shall deal with in turn.
Ground 1
The trial judge did not admit into evidence documents tendered by the Appellant during the hearing, which resulted in the documents not being placed on the court file for consideration when determining this matter. The following documents were the subject of the procedural error:
a. Affidavit of [the respondent] filed 22 December 2016 paragraph 60;
b. Letter lifted from [N] Court File signed by Leading Senior Constable “LSC” [M];
c. Tender Bundle to Affidavit of [the appellant] dated 1 August 2018; and
d. Tender Bundle to Affidavit of [the appellant] dated 16 August 2018.
12. This ground asserts that the primary judge did not admit certain documents into evidence and as a consequence, that evidence was not taken into account. At the interim hearing the appellant’s summary of argument indicated documents a) and b) were relied upon. The two tender bundles were of documents referred to in the two affidavits upon which the appellant relied before the primary judge.
13. It is an agreed fact that the primary judge did not mark these documents as exhibits. Also, despite the evidence given as to the appellant’s memory in her further evidence, the transcript and the exhibit sheet demonstrates that the primary judge did not mark the exhibits to the respondent’s affidavit as exhibits in the hearing either. However, all documents were handed up to the primary judge.
14. At [34] and [35] of the reasons, the primary judge set out the documents the appellant was permitted to rely upon. They included:
• Paragraph 60 of the respondent’s affidavit filed 22 December 2016;
• The letter lifted from N Court file signed by LSC M;
• The affidavit of the appellant filed 1 August 2018; and
• The affidavit of the appellant filed 16 August 2018.
15. The question arises as to what use the primary judge was to make of the documents referred to in this ground of appeal. In an early exchange between counsel for the respondent and the primary judge his Honour indicated his preference to adopt the proposition that he not be burdened with needing to consider exhibits (of which there was a large volume) unless “there’s contested issues that you need to be taken to particular documents and we will deal with them as it arises” (Transcript, 17 August 2018, p.6 lines 11-12). Counsel for the appellant did not object to that proposed course. In the context of interim hearings, this is a course to be recommended.
16. During submissions, counsel for the appellant took the primary judge to specific documents in the appellant’s tender bundle(s).
17. Whilst the primary judge permitted the appellant to rely upon exhibits in her affidavit and the other two documents, the interim hearing proceeded upon the express understanding that particular documents tendered would be referred to if a contested issue arose. No reference was made to the documents particularised in this ground. In these circumstances, there was no obligation on the primary judge to rummage through a large volume of documents so as to try and discover those which might possibly be relevant to an issue.
18. There is no merit in Ground 1.
Ground 2
The trial judge failed to correctly identify the Appellant’s proposed orders in accordance with the legislative pathway for interim cases as enunciated in Goode & Goode [2006] FamCA 1346, and therefore failed to consider the competing proposal made by the appellant when determining this matter.
19. This complaint is that the primary judge did not identify nor engage with particular aspects of the orders sought by the appellant, including a move to six nights a fortnight when she had “obtained accommodation”, school holiday time, Christmas time, the parties’ birthdays and FaceTime calls each week.
20. It is agreed that the appellant at trial made no submissions with respect to these applications. Rather, the approach taken by counsel (who then appeared for the appellant) was to deal with the critical point as to whether the appellant had made out a case to change the existing orders. The submissions assumed a working knowledge of the orders sought and did not descend into each and every aspect of them. No criticism should be made of the approach taken by counsel for the appellant which was plainly an efficient use of the available time and ensured that the essence of the case for change was made and understood. His Honour adopted the same approach and having determined that it was not in the best interests of the children for the orders to be changed, it was not necessary for him to specifically address each and every component of the proposed changes. After all, they were, as the appellant properly agreed, “minor matters”.
21. There is no merit in Ground 2.
Ground 3
The trial judge failed to follow the proper legislative pathway as contained within section 65DAA by failing to consider whether an order for equal time was reasonably practicable, having regard to section 65DAA(5).
22. This ground asserts that the primary judge failed to properly consider s 65DAA(5) of the Act. That section is applicable to a determination whether a time order is reasonably practicable for the purposes of ss (1) and (2) of s 65DAA. Those two subsections are only enlivened if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child. No such order exists in this case nor did the primary judge propose to make or was asked to make any such order. Accordingly, the primary judge did not err in failing to follow what the appellant calls “the proper legislative pathway” contained within s 65DAA including a consideration of the factors in s 65DAA(5).
23. There is no merit in Ground 3.
Grounds 4 & 5
(4) The trial judge failed to take into account material considerations in determining there had been family violence, including the matters listed in section 60CC(3)(k).
(5) The trial judge made an error of fact in determining that there had been family violence.
24. These grounds are based upon an apparent finding by the primary judge at [128] of the reasons in the following terms, “In this case there has been family violence as set out earlier”.
25. The only earlier references to family violence in the judgment were at [117], [118] and [119] of the reasons.
26. At [118], the primary judge recorded the appellant’s evidence that there had been an occasion where the respondent approached the appellant in an aggressive manner and the appellant pushed her away.
27. Apart from that, the balance of what the primary judge records are competing allegations by one party against the other in relation to violence.
28. I am of the view that when the judgment is read as a whole it is clear that at [128], his Honour was intending to refer to allegations of family violence as opposed to making a finding that family violence had occurred. This is because all his Honour had done previously was record allegations and not make findings. It appears that some words have been unfortunately omitted. Before us, all parties agreed that this interpretation was available. This is sufficient to dispose of Grounds 4 and 5.
29. In any event, the question would arise as to how any finding of family violence influenced the primary judge’s decision. The appellant asserts that it has affected the primary judge’s approach to releasing her from her undertaking not to approach the former matrimonial home and his readiness to make an order restraining the children coming into a bed that she shared with another adult. There is nothing in the judgment that would indicate that any issue of family violence impacted upon either of those determinations.
30. There is no merit in Grounds 4 and 5.
Grounds 6 & 7 - Video Gaming
(6) The trial judge took into account irrelevant considerations and failed to take into account material considerations and evidence in making Order 3.
(7) Order 3 is oppressive and against the weight of the evidence.
31. Order 3 made by the primary judge on 24 September 2018 is as follows:
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.
32. The second sentence of Order 3 made 24 September 2018 was made without either party seeking that order and without any notice being given to the parties that his Honour contemplated making that order. As already indicated, the appeal against that part of the order will be upheld and shall be set aside by consent.
33. The appellant does not press the balance of Grounds 6 and 7.
Ground 8 – Sleeping in Bed
The trial judge took into account irrelevant considerations and failed to take into account material considerations or evidence in making Order 7
34. The respondent sought an order that “both parties be restrained from allowing the children to be in a bed with any adult, other than the respondent or the appellant”.
35. Order 7 made by the primary judge is as follows:
Pending further order the [appellant] is restrained from having any of the children share her bed whilst there is any other adult person in that bed with her.
36. The appellant’s first complaint is that his Honour did not make an order as sought by the respondent, that is, there was no mirror order made against the respondent even though the respondent had sought it. The appellant, however, resisted any order being made and cannot complain that she was successful in resisting the order being made against the respondent.
37. The reasons the primary judge gave in relation to this issue are as follows:
139. Until the nature of the relationship between the [appellant] and [Ms G] is specifically defined by the [appellant], (i.e. is she in a committed and intended long term relationship with [Ms G] as “a couple” or are they merely friends?) it may be inappropriate for the children to share a bed with them or see them in passionate embraces or actions. Clearly the [appellant] sees that as appropriate because she has said that she does not sleep in the same bed as [Ms G] when the children are staying. The [appellant] has said [Ms G] sleeps on the lounge.
140. Whether it is or is not appropriate for the [appellant] to be sharing a bed with [Ms G] and one of the children, it is a circumstance which is troubling for the [respondent] and until the whole of the parenting arrangement and the nature of the familial relationships can be properly assessed it is preferable to avoid antagonistic behaviour by either party.
141. I do not propose to make an order restraining the [appellant] from sharing her bed with any other person, however, until there is evidence which the trial judge can assess as to the impact upon the children, I do propose to restrain the [appellant] from sharing her bed with any of the children whilst at the same time sharing it with another person. In so doing I note that it is the [appellant’s] case that she has not done this in the past and I assume, would not do so pending the determination of the final parenting orders to be made in this case.
38. The appellant challenges these findings on a number of bases:
• The appellant’s evidence was that the children had only ever shared a bed with her;
• There was no evidence of the children being potentially exposed to “passionate embraces or actions”;
• Ms G’s evidence, contained in her affidavit filed 1 August 2018, was that “the [appellant] and I have a close personal friendship” and that “We are not in a de facto relationship or any other relationship”; and
• The appellant’s evidence on that point was “[Ms G] and I also have a very close personal relationship outside the workplace”.
39. However, the respondent disputed the nature of the relationship between Ms G and the appellant. The respondent said in her affidavit filed 8 August 2018, that “…so far as I am aware they are in a relationship”.
40. The respondent also set out at some length in her affidavit her concerns relating to the children being exposed to any new relationship between the appellant and another person.
41. His Honour acknowledged that there was an issue as to the nature of the relationship between the appellant and Ms G. The interim restraining order was made in the context of a disputed contention which was yet to be tested. It was protective of the children in the short term and was designed to assuage some of the antagonism between the parties which would clearly be in the children’s best interests.
42. There is no merit in Ground 8.
Grounds 9, 10 & 11 - Spend time Arrangement
(9) The trial judge failed to provide proper and adequate reasons as to why it was not in the children’s best interests to spend equal time with the parties in accordance with the presumption contained within section 65DAA(1).
43. The appellant asserts that the primary judge was required under s 65DAA(1) of the Act to consider whether or not it would be in the children’s best interests to spend equal time with their parents. As discussed earlier, there was no order for equal shared parental responsibility and none was proposed by the primary judge (and none was sought by either party). Consequently, the provisions of s 65DAA(1) were not enlivened.
44. There is no merit in Ground 9.
(10) The trial judge failed to consider and provide proper and adequate reasons as to why it was not in the children’s best interests to spend a full weekend with the appellant, where he found it was in their best interests to spend substantial and significant time with the appellant.
45. The appellant relies upon a finding at [133], where the primary judge said “The order I propose to make will afford the parties close to equal shared time with the children and I find that to be in their interests.”
46. The order that the primary judge made was to leave a four nights a fortnight arrangement in place and at [126] the primary judge said:
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
47. Before his Honour, counsel for the appellant made submissions as to why an extension of time to an entire weekend would be in the children’s best interests. The primary judge made reference to those submissions in the reasons at [85] as follows:
Contrary to the wishes of the [respondent], the [appellant] sought more time with the children, to an entire alternate weekend. In recognition that the children are older than when initial consent orders were made, she submitted that adding the Friday night to give the children the whole weekend with the [appellant] is more tenable. She submitted that there are objective advantages to a more equal division of time between the parents, which might include easier handovers at school.
48. Senior counsel for the respondent put to the primary judge that there was a threshold issue in the appellant’s case given the existence of the orders of 4 April 2017 arising from Rice v Asplund (1979) FLC 90-725 where counsel said:
But even if her position remains static – we point to the deterioration, but if her position had remained static, there’s nothing that has occurred that would overcome, in our submission, the principle in Rice & Asplund that would invite your Honour or authorise your Honour to proceed, at this stage, to make other orders effectively reconsidering the matter, particularly without any updated or newer report from any expert that calls for it.
(Transcript, 17 August 2018, p. 21 lines 35 – 41)
49. Ultimately, the primary judge decided that there should be no change in the existing order until the court and the parties had the assistance of expert evidence. When looked at overall, the tweaking of the interim parenting orders sought by the appellant were of a minor nature.
50. At [153] and [154] of the reasons, the primary judge said:
153. It is difficult to see how any judge, charged with the responsibility of making orders which are in the best interests of these children to proceed to further alter the time the children spend with each parent without the assistance of a report from a single expert child and family psychiatrist. To that end the parties are urged to engage the services of such an expert to prepare a jointly commissioned report
154. Having regard to all of the matters set out above I conclude it is in the best interests of the children at this time to make no change to the current orders setting out the time they spend with each parent.
51. It was open to the primary judge to conclude that it was in the best interests of the children to wait until there was a full exploration of the evidence at a final hearing (including expert evidence) before the current parenting arrangements were reviewed.
52. There is no merit in Ground 10.
(11) The trial judge erred in finding that the time the children spend with the parties is substantial and significant under the Act.
53. This ground asserts that the primary judge erred in making a finding that the existing interim parenting order provided the appellant with substantial and significant time under the Act.
54. At [94] of the reasons, the primary judge found that “The time which the [appellant] spends with the children fulfils the definition of significant and substantial under the Act.”
55. The definition of substantial and significant time relevantly includes:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
[Emphasis added]
56. The appellant argues that the finding at [94] is erroneous because the orders that were made in April 2017 do not include the parties’ birthdays and Christmas and that since these days are of particular significance to the children and the appellant, the requirements of s 65DAA(3)(b)(ii) and (c) are not satisfied.
57. Provision is made in the current orders for the children’s birthdays, Mother’s Day and Easter (Orders 3(e), 3(d) and (f)).
58. In relation to s 65DAA(b)(ii) of the Act, the time must include occasions and events that are of particular significance to the child. The orders of 4 April 2017 make particular allowance for the children to spend time with the appellant at Easter, on Mother’s Day and on each of the children’s birthdays. This subsection does not suggest that all possible events of particular significance need to be provided for (see Eddington & Eddington (No. 2) (2007) FLC 93-340; Ulster & Viney (2016) FLC 93-722).
59. Sub-section 65DAA(3)(c) of the Act requires that the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. Again, Easter, Mother’s Day and the children’s birthdays fulfil that requirement and the section does not suggest all possible events of special significance need to be provided for.
60. The appellant asserted that because she did not have Christmas Day and her own birthday, then the primary judge was in error to make a finding that the definition of substantial and significant time was met.
61. That is not so and there is no error in his Honour’s finding that the current orders provide for substantial and significant time.
62. In the event that there had been an error (which there was not), the appellant asserted that as a consequence, the primary judge failed to make the orders she sought for time at Christmas and on the parties’ birthdays (Orders 8, 9 and 10). However, there is no evidence in the appellant’s affidavit which went to the issue of Christmas and the parties’ birthdays. Nor is it addressed in the appellant’s case outline and it was not the subject of any oral submissions made on behalf of the appellant.
63. There is no merit in Ground 11.
Costs
64. The respondent has made an application for costs against the appellant seeking the sum of $10,836.33 by way of quantification of party/party costs upon condition that the order not be paid unless the appellant receives a property settlement order which is sufficient to meet the payment.
65. Apart from the second sentence of Order 3, the appeal against the primary judge’s interim orders of 24 September 2018 has been unsuccessful.
66. The appellant has filed submissions going to her current financial circumstances. She concedes, however, that in the event she received a property settlement order in her favour she would be in a position to pay the costs as sought. As indicated, the respondent was prepared to agree that the cost order would be subject to the condition referred to.
67. It is just that a costs order be made in the respondent’s favour in the sum of $10,836.33.
Proposed Orders
68. The orders that I propose are:
(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.
Aldridge j
69. I agree with the reasons given by and the orders proposed by Justice Watts.
Ryan j
70. I also agree and the orders therefore are these:
(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.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 10 April 2019.
Associate:
Date: 30.04.19
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