VELDERMAN & VELDERMAN - [2020] FCCA 85

FEDERAL CIRCUIT COURT OF AUSTRALIA

VELDERMAN & VELDERMAN

[2020] FCCA 85

Catchwords:
FAMILY LAW – Contravention – where multiple contraventions alleged – where Respondent raises reasonable excuse – where Respondent denies the contravention.

Legislation:

Family Law Act 1975 (Cth), ss.4, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB 117

Applicant:

MR VELDERMAN

Respondent:

MS VELDERMAN

File Number:

SYC 7114 of 2017

Judgment of:

Judge Morley

Hearing dates:

15 July 2019, 6 August 2019

Date of Last Submission:

6 August 2019

Delivered at:

Sydney

Delivered on:

23 January 2020

REPRESENTATION

Counsel for the Applicant:

Ms Judge

Solicitors for the Applicant:

Justice Family Lawyers

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Santone Lawyers

ORDERS

That the contravention Application filed by the Father on 5 July 2019 and heard on 15 July and 6 August 2019 be further adjourned for further submissions on the issues of appropriate orders and, if relevant, penalty to 9:30AM on 31 January 2020.
That the Application of the Father that the Mother pay his costs for the interim Hearing conducted 8 and 12 April be dismissed.
That the informal Application made by each of the parents in submissions for a variation of the interim parenting orders be heard on 31 January 2020 at which time the Independent Children’s Lawyer will have an opportunity to make submissions.
That, if they have not already done so, each of the parents serve on the Independent Children’s Lawyer a copy of their written submissions on variation of the interim parenting orders as already provided to the Court in Chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7114 of 2017

MR VELDERMAN

Applicant

And

MS VELDERMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons relate to contravention proceedings under Division 13A of Part VII of the Family Law Act 1975 (Cth), being an assertion by the Applicant Father, Mr Velderman, that the Respondent Mother, Ms Velderman, has contravened a number of interim parenting orders made in the current parenting proceedings between the parties.
The parties commenced cohabitation in 2010, married in 2012, and separated on a final basis on 20 August 2017. They remained living under the same roof until 4 March 2018, when the Mother, together with the children of the marriage X, born in 2012, and Y, born in 2015, vacated the matrimonial home at A Street, Suburb B (‘the A Street, Suburb B property’) in the Region C area west of Sydney, and took up residence with the maternal grandmother at Suburb M.
Proceedings were commenced by the Applicant Father filing an Initiating Application on 27 October 2017. The Mother filed her Response on 7 March 2018. The matter has, unfortunately, had a number of interim Hearings along the way. Following an interim Hearing, parenting orders were made by his Honour Judge Harper (as his Honour then was) on 6 July 2018, the orders…

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.

Continue reading VELDERMAN & VELDERMAN

Details

AGLC: Velderman and Velderman [2020] FCCA 85
Case: [2020] FCCA 85
Decision Date: 23 January 2020

CaseChat Overview and Summary

The parties in this matter were the Father and the Mother, who brought a contravention application before Judge Morley concerning alleged breaches of parenting orders. The Father alleged multiple contraventions by the Mother, who in turn denied the contraventions and raised the defence of reasonable excuse.

The court was required to determine whether the Mother had contravened the parenting orders as alleged by the Father, and if so, whether she had a reasonable excuse for any such contraventions. Additionally, the court considered applications for costs and for variation of the interim parenting orders.

The decision indicates that the court did not make final determinations on the contravention allegations or the variation applications at the hearing. Instead, the court adjourned the matter for further submissions on appropriate orders and potential penalties, and to allow for the Independent Children’s Lawyer to make submissions on the variation applications. The Father's application for costs related to an interim hearing was dismissed.

Orders

Orders of the court

That the contravention Application filed by the Father on 5 July 2019 and heard on 15 July and 6 August 2019 be further adjourned for further submissions on the issues of appropriate orders and, if relevant, penalty to 9:30AM on 31 January 2020.

That the Application of the Father that the Mother pay his costs for the interim Hearing conducted 8 and 12 April be dismissed.

That the informal Application made by each of the parents in submissions for a variation of the interim parenting orders be heard on 31 January 2020 at which time the Independent Children’s Lawyer will have an opportunity to make submissions.

That, if they have not already done so, each of the parents serve on the Independent Children’s Lawyer a copy of their written submissions on variation of the interim parenting orders as already provided to the Court in Chambers.

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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