VELDERMAN & VELDERMAN (No.2) - [2020] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

VELDERMAN & VELDERMAN (No.2)

[2020] FCCA 1015

Catchwords:
FAMILY LAW – Parenting – interim orders – where previous contravention proceedings – mother found guilty of charges of contravention without reasonable excuse – primary orders related to location of changeover and parties conducting changeover themselves – parties both made informal applications to vary primary orders under section 70NBA – father also sought the children spend an additional night with him – father’s additional application outside the primary orders – where orders made varying primary orders on interim basis – where orders made with Reasons to be delivered on a date and time to be advised.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA, 70NBA

Cases cited:

Franklyn & Franklyn [2019] FamCAFC 256
Grella & Jamieson [2017] FamCAFC 21
Hazan & Elias [2011] FamCA 376
Velderman & Velderman [2020] FCCA 85

Applicant:

MR VELDERMAN

Respondent:

MS VELDERMAN

File Number:

SYC 7114 of 2017

Judgment of:

Judge Morley

Hearing date:

31 January 2020

Date of Last Submission:

31 January 2020

Delivered at:

Sydney

Orders Pronounced:

31 January 2020

Delivered on:

13 May 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:	Ms Santone of Santone Lawyers
Solicitors for the Independent Children's Lawyer:	Ms Gibblin as agent

ORDERS

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Any changeovers that do not occur by collection of or return of the children from and to school will occur at Suburb D Supermarket, inside the K Street entrance of those premises.
Order 1 of the orders made on 6 July 2018 is vacated, and all subsequent orders varying or amending that order are also vacated.
The children live with mother.
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 if not a school day, on Friday until the commencement of school, or 9:00am if not a school day, on the following Monday.
In relation to the order made today for the father to spend time with the children during school term time, Week 1 will commence on Thursday 6 February 2020, and Week 2 will commence on Friday 14 February 2020.

IT IS NOTED that publication of this judgment under the pseudonym Velderman & Velderman (No.2) 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

These are the Reasons for orders 14 to 18 inclusive of the orders made on 31 January 2020.

Introduction

The parties to the proceedings are the Applicant Father, Mr Velderman (“the father”) and the Respondent Mother, Ms Velderman (“the mother”). The Independent Children’s Lawyer appointed in the matter to represent the interests of the children…

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 (No.2)

Details

AGLC: VELDERMAN & VELDERMAN (No.2) [2020] FCCA 1015
Case: [2020] FCCA 1015
Decision Date: 13 May 2020

CaseChat Overview and Summary

In the matter of *Velderman & Velderman (No.2)*, Judge Morley of the Family Court of Australia considered applications by both the mother and father for interim parenting orders. These applications arose in the context of previous contravention proceedings where the mother had been found guilty of contravening primary orders without reasonable excuse. The primary orders concerned the location of changeovers and mandated that the parties conduct these changeovers themselves.

The court was required to determine whether to vary the existing primary parenting orders on an interim basis, including the location of changeovers and the time the children would spend with each parent. The father also sought to vary the primary orders to include an additional night with the children.

Judge Morley made interim orders varying the primary orders. Specifically, the court vacated the previous order regarding changeovers and substituted it with a new arrangement requiring changeovers to occur at a specific supermarket entrance, unless occurring at school. The children were ordered to live with the mother, and the father was granted time with the children on a fortnightly basis, with detailed provisions for school term time commencing from early February 2020.

Orders

Orders of the court

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Any changeovers that do not occur by collection of or return of the children from and to school will occur at Suburb D Supermarket, inside the K Street entrance of those premises.

Order 1 of the orders made on 6 July 2018 is vacated, and all subsequent orders varying or amending that order are also vacated.

The children live with mother.

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 if not a school day, on Friday until the commencement of school, or 9:00am if not a school day, on the following Monday.

In relation to the order made today for the father to spend time with the children during school term time, Week 1 will commence on Thursday 6 February 2020, and Week 2 will commence on Friday 14 February 2020.

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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