VELDERMAN & VELDERMAN

[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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Velderman & Velderman 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EAA 25 of 2020
File Number: SYC 7114 of 2017

Mr Velderman

Appellant

And

Ms Velderman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Mr Velderman (“the father”) and Ms Velderman (“the mother”) are engaged in what appear to be protracted parenting proceedings concerning their two children, X, born in 2012 and Y, born in 2015 (“the children”). At the time of the hearing before the primary judge, interim parenting orders provided for the children to live with the mother and spend time with the father in Week 1 from 5.00 pm on Thursday until 7.00 pm on Friday, and in Week 2 from 5.00 pm on Thursday until 6.00 pm on Sunday (Orders 1(a) and 1(b) made on 6 July 2018 as varied by Order 3 made on 12 April 2019). Changeover was to occur “at school on Thursdays during the school term and at [Suburb D Supermarket] on Fridays and Sundays and during school holidays with each parent to carry out changeover unless otherwise agreed in writing” (Order 2 made on 1 March 2019).

2. Difficulties arose in the implementation of some of these orders (or prior versions of them) and on 28 February 2019, the father filed a Contravention Application. A further Contravention Application was filed by the father on 5 July 2019. Both applications were heard on 15 July 2019 and 6 August 2019.

3. On 23 January 2020, his Honour delivered judgment in relation to the contravention proceedings and found that the mother had, without reasonable excuse, contravened the interim parenting orders on two occasions. Both applications were adjourned to 31 January 2020 for further submissions on the issues of the appropriate orders and penalty. It appears that the particular aspect of the orders which created difficulties with compliance was the changeover on Sunday in Week 2.

4. In the primary judge’s reasons for judgment delivered on 13 May 2020, his Honour recorded that:

   14.…In written submissions and in oral submissions presented [in relation to the contravention proceedings], it was plain that both parties were seeking a variation of the interim orders and I made directions for the filing and service of written submissions in relation to any variation of the interim parenting orders…

5. It appears that his Honour had found that s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) was engaged and that it was appropriate to reconsider varying the interim parenting orders. To that end, directions were made treating the proposed orders in the parties’ written submissions as informal applications for variation of the interim parenting orders and that those applications also be heard on 31 January 2020. That was a sensible and practical way of proceeding.

6. On 31 January 2020, the primary judge heard submissions from the father who was acting for himself, the solicitor representing the mother and an agent acting on behalf of the Independent Children’s Lawyer.

7. Essentially, the mother and the Independent Children’s Lawyer proposed that the children spend time with the father from after school on Friday until before school on Monday in Week 2 (at [29] and [31]). The father agreed that the children should spend time with him until before school on Monday but also sought to have the children continue to spend Thursday night with him in Week 2 (at [28]). The effect of the father’s proposal would be that the children spent an extra night each fortnight with him.

8. In relation to changeover, the father sought that each party personally carry out changeover and to preclude the maternal grandfather from attending changeover. The mother sought that changeover occur at school and on non-school days that it occur at Suburb D Supermarket and be carried out by the parties, a family member or a friend.

9. On 31 January 2020, his Honour varied the order providing for the children to spend time with the father as follows:

   17.The children spend time with their father on a fortnightly basis as follows:

   a.In Week 1 from conclusion of school or 3:00pm if not a school day, on Thursday until the commencement of school, or 9:00am if not a school day, on Friday;

   b.In Week 2, from the conclusion of school or 3:00pm on Friday if not a school day, until the commencement of school, or 9:00am if not a school day, on the following Monday.

10. As can be seen, in general terms, his Honour shifted the time that the children would spend with the father by one day so that during school time there are no direct changeovers between the mother and the father, which seems to have given rise to many problems.

11. His Honour also varied the order in relation to changeover as follows (noting that the order appears in a slightly different form as expressed on 31 January 2020 and 13 May 2020):

    14.Changeovers shall occur at the children’s school, and on non-school days changeover shall occur at [Suburb D Supermarket], inside the [K Street] entrance of those premises, and in the event that changeover will not be conducted by a parent or grandparent, then the other parent is to be informed by text message no later than one hour prior to changeover of the person who will be facilitating changeover.

12. The primary judge did not give reasons for the orders made on 31 January 2020 and reasons were reserved until 13 May 2020, which was when they were published and subsequently posted to the parties, who did not receive them in the mail until five or six days later. It is well established that a judge should make orders and publish reasons in open court (Sargent & Selwyn (2017) FLC 93-812 (“Sargent”) at [35]–[37]) and that the reasons should be made available to the parties as expeditiously as possible thereafter, if they are not in Court at the time that they are delivered. There are more expeditious ways of doing so than by post (Stringer & Nissen (No. 2) (2019) FLC 93-922 at [10]).

The Appeal

1. By way of an Amended Notice of Appeal filed on 10 June 2020, the father appeals against Orders 14 and 17 made by the primary judge on 31 January 2020. The appeal is opposed by the mother and by the Independent Children’s Lawyer.

2. The appeal is being heard by a single judge pursuant to a direction given by the Chief Justice pursuant to s 94AAA(3) of the Act.

3. The father relied on a bundle of material which was not further evidence but a collection of references to which he referred during submissions at the hearing of the appeal. I received it as such but did not find it to be of any assistance.

4. Ground 11 was abandoned (Notice of Discontinuance filed on 1 September 2020).

Were the primary judge’s reasons for judgment adequate? (Ground 1)

1. The father contends that the primary judge’s reasons for judgment are inadequate for three quite distinct reasons discussed below.

Was the delay between the making of the orders on 31 January 2020 and the delivery of the reasons for judgment on 13 May 2020 such that it gave rise to an appealable error?

1. The delay between the making of the orders and the delivery of the reasons for them was approximately three months and 13 days, which was compounded by the reasons being posted to the parties, who only received them some five or six days later.

2. It is clear beyond question that in appropriate cases a judge may make orders and deliver reasons for them shortly thereafter (see for example, Au Pui-kuen v Attorney-General of Hong Kong [1980] AC 351 at 356 and Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28 at 44). Such a course is permitted by s 75 of the Federal Circuit Court of Australia Act 1999 (Cth). However, difficulties arise when the gap between the making of the orders and the delivery of the reasons is lengthy.

3. In Sargent, the Full Court said the following:

   77.Where reasons are delivered a considerable time after orders have been made there is diminished confidence that the preparation of the reasons has directed the trial judge to the salient issues and that the important points have properly been taken into account.

   78.It follows from the above that there may be circumstances where the delay between the making of orders and the provision of reasons, of itself, gives rise to an injustice that amounts to an error of law. That will more easily be the case where the interests of justice did not dictate that orders be made first and then reasons be delivered at a later date. Whether an error of law arises in a particular case will depend very much on the nature of the proceedings and the orders, the importance of the reasons to an understanding of why the orders were made, and the extent of the delay.

4. In that case, a delay of 13 months between the making of parenting orders in relation to a child who was then aged three and a half years and the delivery of the reasons was found to be so extensive that there was a miscarriage of justice and thus an error of law arising solely through that delay.

5. In Macris & Galanis (2015) FLC 93-681 (“Macris”) at [34], the Full Court found that a delay of three months was “very troubling” and “[m]ore so when no explanation is provided for it”. The Full Court in that case at [31] also agreed with Coleman J in Besser and McCoy (2008) FLC 93-361 at 82,427 that a five week gap between the making of orders and the delivery of reasons is troubling.

6. In Macris, the Full Court said:

   33.A significant delay puts a litigant in an untenable position of not knowing, other than by conjecture, why the orders were made. There is also the quandary of whether there is a justifiable basis to appeal. The appeal consideration is not merely based on the outcome so much as on whether there is a justifiable ground to assert error either as to law or as to the determination of the facts. It is for this reason that a failure to give reasons simpliciter has long been held to be an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376). Hence, the delivery of subsequent reasons both inside and outside of a designated appeal period may not cure the injustice caused by the failure to publish reasons contemporaneously with, or very soon after, the pronouncement of orders. Of course, each case has to be determined by reference to its own facts and in one case a gap may create injustice whereas in another case a similar gap may be inconsequential.

7. In this matter, the father was able to formulate grounds of appeal which permitted him to appeal against the orders made on 31 January 2020 within a timely fashion, even though the reasons were not available. When the reasons became available, the father was then in a position substantially to amend his Notice of Appeal and did so. Therefore, he has not been substantially prejudiced by not being able to properly pursue his appeal.

8. The orders that the father challenges were a relatively minor variation of the interim parenting orders. The nature and extent of the reasons that are required to be given by a judge are strongly influenced by the nature of the controversy that they are intended to resolve (Wainohu v New South Wales (2011) 243 CLR 181 at [56]) and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]). Here, as the issue was relatively narrow, confined and the primary judge was faced with a choice between alternative sets of orders proposed by each of the parties to resolve the dispute, the reasons for the making of the orders needed only to have been brief and there is no obvious reason why they could not have been delivered at the time that the orders were made or very shortly thereafter. The delay is therefore troubling.

9. The countervailing consideration is that it appears that no practical injustice has resulted from that delay. On balance, I incline to the view that an appealable error has not been established. However, notwithstanding that view, because of the considerable delay, his Honour’s reasons require very careful scrutiny (Rollings & Rollings (2009) 230 FLR 396 at [129]).

Were the reasons for judgment partial and incomplete?

1. It is difficult to understand parts of the father’s submissions on this aspect of the ground because they refer to the primary judge failing to give adequate reasons for the penalties that his Honour imposed in relation to the mother’s contraventions, which had been established. Those reasons, or lack of them, are not relevant to the variation of the interim parenting orders.

2. However, the father also submitted that the primary judge did not explain why it was that his Honour reduced the children’s time with him on non-school Mondays.

3. It is then necessary to return to the orders sought by the mother and the father. The father’s proposed order was outlined at [28]:

   …

   ii)In week 2, from 3 pm on Thursday until the following Monday at 9:00am, with the father to collect the children at the start of his time from their school/pre-school, and deliver the children at the conclusion of his time to their school/pre-school, and in the event that Monday is not a school day or an occasion when one or both children are sick, the changeover will take place at 7:00pm at [Suburb D Supermarket].

4. Thus, the father proposed an order that on non-school Mondays, the children remain with him until 7.00 pm.

5. The mother’s proposed order, which found favour with the primary judge, simply did not provide for non-school Mondays.

6. His Honour did not refer to the point now raised by the father as to non-school Mondays.

7. It has to be said at the outset that this is a very minor issue. As I understand it, because the mother sought to vary them (at [29]), there were orders that provided for the children to spend time with each party during the school holidays. Therefore, the number of non-school/ non-holiday Mondays in a year is only very few indeed.

8. The father did not address any submissions at all to this aspect of his proposed order to the primary judge. As can be seen, the father’s proposed order involved the children spending an extra night with him. After an extensive exchange between the primary judge and the father on that issue, the following exchange took place:

   HIS HONOUR: You’re not getting five. You’re staying at four.

   [THE FATHER]: That’s –that’s fine, and I would like to retain that as they are now then and as they were established on 6 July 2018…

   HIS HONOUR: All right.

   [THE FATHER]: If that’s – if the four or five is an issue.

   (Transcript 31 January 2020, p.37 lines 21–28)

9. Thus, the proposition that the father put to the primary judge was that if he did not get the variation that he sought to the order, then the order should remain with the changeover at 6.00 pm on Sunday, which the father had agreed was unsatisfactory and it follows that it was not in the best interests of the children. At no time did the father address any submissions as to the mother’s proposed order or suggest any variation to it.

1. In that combination of circumstances, namely, the very minor nature of the order sought by the father in relation to non-school/ non-school holiday Mondays, the father’s failure to address any submissions to that aspect of the proposed order, and his insistence that it was either his order made in full or no change at all, it is not surprising that the primary judge did not address it. A judge is not required to address every point raised in submissions.

2. This aspect of the father’s challenge has not been established.

Were the “reasons moulded to conform ruling and inconsistencies in reasoning process” (as per the original)?

1. Under Ground 1, the father submits that the primary judge’s reasons were clearly moulded to conform to the orders made on 31 January 2020.

2. The father submits that his Honour’s reasoning process was not complete at the time that the orders were made, that the primary judge did not have the time to fully comprehend the material at the time that the orders were made, and that any inconsistencies in the submissions between those made at the hearing and those made on appeal were caused by the delay of the primary judge.

3. I am quite unable to see how any of these matters can be established, having had regard to the transcript of the proceedings and his Honour’s reasons. There is no reason to think that the primary judge did anything other than his Honour’s best to diligently and conscientiously understand the parties’ respective positions at the hearing and to give reasons that gave effect to his intention.

4. It follows that this ground of appeal has not been established.

Did the primary judge err in taking into account the Family Report? (Ground 9)

1. A Family Report dated 8 August 2019 was released to the parties on that same date. In the course of the hearing on 31 January 2020, the Independent Children’s Lawyer referred to the report and noted that the recommendation of the Family Report writer was that the father continue to spend four nights per fortnight with the children but that the children’s time with the father be amended so as to limit face to face changeovers. Thus, the Independent Children’s Lawyer submitted that the Family Report writer “puts forward a proposal that the father’s time commences after school on Friday until before school on Monday” (Transcript 31 January 2020, p.22 lines 1–2).

2. On that basis, the Independent Children’s Lawyer supported the orders proposed by the mother.

3. For his part, the father did not accept the validity of the Family Report. At the hearing before the primary judge, the father said:

   [THE FATHER]: I have problem with the integrity of the report, and how it came about, and how the interviews proceed, and what are the findings, and what evidence was considered and what was omitted, and so on and so forth, and I say it deviates from those standards in substantial matter…

   (Transcript 31 January 2020, p.25 lines 23–28)

4. The primary judge then said that his Honour’s main focus was not to discuss the merits or otherwise of the Family Report but to deal with the issue of changeovers and said:

   …That’s my inclination, so that’s what you need to address me on. Don’t worry about the – address me on the family report. That’s not demean your submissions at all, [solicitor for the Independent Children’s Lawyer], in relying on the report. Most cogent, but I’m dealing with cutting off us diving into arguments about the evidentiary value of the report and having a look at [Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705], and all that sort of thing, which would be completely unfair to the [father]. So do you see where I’m going?

   (Transcript 31 January 2020, p.26 lines 25–30)

5. Thereafter the Family Report was not addressed by the father.

6. The only interpretation that can be given to those comments of his Honour was that the Family Report was put to one side for the purposes of the applications. That is consistent with it not having been made an exhibit.

7. Unfortunately, his Honour’s reasons refer extensively to the Family Report. His Honour noted that the Independent Children’s Lawyer relied upon the Family Report (at [25]) and that the orders proposed by the Independent Children’s Lawyer were “in line with the recommendation of the Family Report” (at [31]). At [33] his Honour noted the father’s objections to the Family Report but did not refer to his Honour’s own subsequent comments as they have been set out above. The primary judge then said:

   36.I also considered the contents of the Family Report dated 8 August 2019, that document being relied upon by the Independent Children’s Lawyer and being addressed by the father. I had read that Family Report on the day of and prior to the hearing. I also considered all of the oral submissions before me on 31 January 2020 and in particular, but not limited to, those that I will refer to hereunder.

8. After discussing the orders proposed by the father and the mother, his Honour referred to the Independent Children’s Lawyer’s proposal, which mirrored the recommendations in the Family Report (at [41]). His Honour continued:

   61.The father commenced his oral submissions by referring to the Family Report and his “problem with the integrity of the report”, and referred me to the case of Hazan & Elias, and the reference therein by Watts J to the admissibility of a Family Report being subject to challenge under the rules of evidence and on the basis of, for instance, bias and matters of natural justice. At that point, I indicated to the father that what I needed to hear from him was his submissions addressing my inclination, following the contravention proceedings, to vary the changeover orders so that changeovers took place at school, and that such changeovers that did not take place at school take place at [Suburb D Supermarket] attended by the parents or whomever else the parents send along to undertake that changeover.

   62.The father responded, “Well, I agree”, and after further discussion, the father said “There is no issue in terms of location, because I think it’s resolved, because in essential we agree if it is possible in school … Let’s make it in school … when it can’t be at the school it should stay in [Suburb D Supermarket]…”.

   (Footnotes omitted)

9. His Honour referred to the meaningful relationship that each of the children have with each of their parents as found by the Family Report writer (at [85]) and noted the views of the elder child recorded in that report (at [88]–[89]). His Honour again relied on the Family Report at [103] in declining to deal, at that time, with the issue of parental responsibility.

10. It follows, that contrary to the indication given to the father at the time of the hearing, the primary judge did in fact rely upon the Family Report. Having regard to the greater degree of scrutiny that must be applied to the primary judge’s reasons due to the delay in his Honour’s delivery of the reasons, it is impossible to conclude that his Honour was not influenced by the Family Report writer’s recommendation in relation to the nature of the orders that were ultimately made. This is most unfortunate because as his Honour correctly observed at the hearing, there was no need at that stage to rely on the Family Report.

11. It follows that there has been a denial of procedural fairness (Kioa v West (1985) 159 CLR 550). It is true that not every denial of procedural fairness will result in an injustice. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at [11], the High Court said:

    Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference…

12. I am unable to conclude that no prejudice arose from the lack of procedural fairness in these circumstances. It follows that this ground of appeal has been established.

Conclusion and costs

1. In those circumstances, it is neither necessary nor desirable to deal with the remaining grounds of appeal (Boensch v Pascoe (2019) 375 ALR 15 at [7]–[8]).

2. The appeal must be allowed, Orders 14 and 17 set aside and the matter remitted for rehearing before another judge of the Federal Circuit Court of Australia, as both parties wish to adduce further evidence as to events that have occurred since the orders were made.

3. The error that I have found is not an error of the parties and in that case, the appropriate order is that there be no order as to costs, and that each of the parties and the Independent Children’s Lawyer receive both certificates for the appeal and the rehearing pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 1 October 2020.

Associate:

Date:  1 October 2020