VELDERMAN & VELDERMAN

Case [2020] FamCAFC 243

FAMILY COURT OF AUSTRALIA

VELDERMAN & VELDERMAN [2020] FamCAFC 243
FAMILY LAW – APPEAL – PARENTING – Variation of interim parenting orders – Adequacy of reasons – Approximately three month and 13 day delay between the making of the orders and the delivery of the reasons – Where the delay is troubling but resulted in no practical injustice – Where the delay resulted in the reasons requiring greater scrutiny – Denial of procedural fairness – Where the primary judge erred in taking the Family Report into account under the circumstances of the proceedings – Appeal allowed – Orders set aside – Matter remitted for rehearing – Costs certificates granted to the parties and the Independent Children’s Lawyer for the appeal and the rehearing.
Family Law Act 1975 (Cth) ss 70NBA, 94AAA(3)
Federal Circuit Court of Australia Act 1999 (Cth) s 75
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Au Pui-kuen v Attorney-General of Hong Kong [1980] AC 351
Besser and McCoy (2008) FLC 93-361; [2008] FamCAFC 27
Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Macris & Galanis (2015) FLC 93-681; [2015] FamCAFC 234
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87
Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
APPELLANT: Mr Velderman
RESPONDENT: Ms Velderman
INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers
FILE NUMBER: SYC 7114 of 2017
APPEAL NUMBER: EAA 25 of 2020
DATE DELIVERED: 1 October 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Aldridge J
HEARING DATE: 14 September 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 13 May 2020
LOWER COURT MNC: [2020] FCCA 1015

REPRESENTATION

THE APPELLANT: Self-represented litigant
COUNSEL FOR THE RESPONDENT: Mr Johnston
SOLICITOR FOR THE RESPONDENT: Santone Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moore
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

Orders

  1. The appeal against Orders 14 and 17 made on 31 January 2020 by a judge of the Federal Circuit Court of Australia be allowed.

  2. Orders 14 and 17 made on 31 January 2020 be set aside on and from the first mention of the remitted matter before a judge of the Federal Circuit Court of Australia.

  3. The applications for variation of Orders 1(a) and 1(b) made on 6 July 2018, Order 1 made on 30 July 2018 and Order 2 made on 1 March 2019 be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

  4. There be no order as…

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AGLC
VELDERMAN & VELDERMAN [2020] FamCAFC 243
Case
[2020] FamCAFC 243
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal against certain orders made in a family law case involving the parties, Velderman and Velderman, and their children. The Federal Circuit Court had issued Orders 14 and 17, which were being challenged by the appellant father. The legal issues before the court centred on whether the orders in question were appropriate and whether they should be set aside. The court also had to consider whether certain other orders made earlier in the proceedings should be remitted to the Federal Circuit Court for rehearing by a different judge.

The court found that the orders in question were not appropriately made and should be set aside. The reasoning involved a detailed examination of the criteria for making such orders and whether they had been correctly applied in this case. The court concluded that the primary judge had erred in the exercise of his discretion, leading to the setting aside of Orders 14 and 17. Additionally, the court determined that several earlier orders should be remitted for rehearing by a different judge to ensure impartiality and avoid any perception of bias.

The outcome of the appeal was that Orders 14 and 17 were set aside, and certain other orders were remitted for rehearing. The court did not make any order regarding costs in the appeal itself but granted costs certificates to all parties and the Independent Children’s Lawyer, indicating that the Attorney-General should consider authorising payments for costs incurred in relation to the appeal and the rehearing. This decision ensures that the proceedings are fair and that all parties can seek reimbursement for their legal expenses.

Orders

Orders of the court

1.

The appeal against Orders 14 and 17 made on 31 January 2020 by a judge of the Federal Circuit Court of Australia be allowed.

2.

Orders 14 and 17 made on 31 January 2020 be set aside on and from the first mention of the remitted matter before a judge of the Federal Circuit Court of Australia.

3.

The applications for variation of Orders 1(a) and 1(b) made on 6 July 2018, Order 1 made on 30 July 2018 and Order 2 made on 1 March 2019 be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

4.

There be no order as to costs.

5.

The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

6.

The Court grants to the respondent mother a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

7.

The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

8.

The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing ordered.

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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