Bellini & Bellini

Case [2021] FCCA 271

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bellini & Bellini [2021] FCCA 271 

File number(s): MLC 9038 of 2020
Judgment of: HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment: 18 February 2021
Catchwords: FAMILY LAW – parenting – initiating proceedings – discrete issue – non-filing of section 60I Certificate – where the Husband’s Response seeks to introduce parenting orders where the parties have not attended family dispute resolution – mandatory pre-litigation requirements – where none of the exemptions in subsection 60I(9) apply – whether the Court can proceed to hear the Husband’s application for parenting orders without a section 60I Certificate – where the Wife contends that the Husband’s application for parenting orders ought to be dismissed for lack of jurisdiction – consideration of recent authorities – whether non-filing of section 60I Certificate deprives the Court of jurisdiction – interpretation of subsection 60I(7) – found that non-filing of section 60I Certificate is not a bar to commencement of proceedings under Part VII – section 60I Certificate not a jurisdictional requirement – application not to be heard by trial judge until section 60I Certificate is filed – any orders entered contrary to subsection 60I(7) may be liable to be set aside for legal error – Husband’s application for interim and final parenting orders stayed until such time as section 60I Certificate is filed.
Legislation:

Family Law Act 1975 (Cth) ss 11F, 60I and 62G

Federal Circuit Court Rules 2001 (Cth) r.20.02
Cases cited:

Ellwood & Ravenhill [2019] FamCAFC 153

Valack & Valack [2020] FCCA 1354
Number of paragraphs: 34
Date of last submission/s: 25 November 2020
Date of hearing: 25 November 2020
Place: Melbourne
Solicitors for the Applicant: Aston Legal Group
Solicitors for the Respondent: Bailey Timms Lawyers

ORDERS

MLC 9038 of 2020
BETWEEN:

MS BELLINI

Applicant
AND:

MR BELLINI

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 FEBRUARY 2020

THE COURT ORDERS THAT:

1.All extant applications be adjourned to the Federal Circuit Court of Australia on 12 May 2021 at 9.45 am for Mention.

2.The Respondent Husband’s (Husband) application for interim and final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (Act) as sought in his Response filed 11 November 2020 be stayed until such time as the Husband files a Section 60I Certificate as required by sub-s.60I(7) of the Act, to be given to the Husband by a family dispute resolution practitioner pursuant to sub-s.60I(8) of the Act.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

HER HONOUR JUDGE C. E. KIRTON QC:

INTRODUCTION

  1. These are property and parenting proceedings. The only issue that that I am required to…

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AGLC
Bellini & Bellini [2021] FCCA 271
Case
[2021] FCCA 271
Decision Date

CaseChat Overview and Summary

In the matter of *Bellini & Bellini*, Her Honour Judge C. E. Kirton QC of the Federal Circuit Court of Australia considered an application by the Respondent Husband for interim and final parenting orders. The Applicant Wife sought an adjournment of these applications. The central dispute revolved around the Husband's failure to file a Section 60I Certificate, which is generally required before commencing proceedings for parenting orders under Part VII of the *Family Law Act 1975* (Cth).

The court was required to determine whether any of the exceptions to the requirement of filing a Section 60I Certificate, as outlined in subsection 60I(9) of the Act, applied in this case. Specifically, the court examined whether the circumstances involved the Wife's consent to the non-filing, allegations of family violence, issues of urgency, or other specific circumstances that might excuse compliance with the filing requirement.

Her Honour adopted the reasoning in *Valack* that filing a Section 60I Certificate is not a jurisdictional prerequisite for commencing a proceeding for Part VII orders. After considering the evidence and submissions, the court found that none of the exceptions under subsection 60I(9) were met. The Wife did not consent to the non-filing, the allegations of family violence were denied and lacked an intervention order, and the court determined that the circumstances were not sufficiently urgent to fall within subsection 60I(9)(d). Consequently, subsection 60I(7) applied, requiring the Husband to file a Section 60I Certificate.

The court ordered that all extant applications be adjourned to the Federal Circuit Court of Australia for mention on 12 May 2021. Crucially, the Husband's application for interim and final parenting orders was stayed until he filed a Section 60I Certificate provided by a family dispute resolution practitioner. The court did not dismiss the application, acknowledging that the filing of the certificate is not a jurisdictional bar.

Orders

Orders of the court

MLC 9038 of 2020

BETWEEN:

MS BELLINI

Applicant

AND:

MR BELLINI

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 FEBRUARY 2020

THE COURT ORDERS THAT:

1. All extant applications be adjourned to the Federal Circuit Court of Australia on 12 May 2021 at 9.45 am for Mention.

2. The Respondent Husband’s (Husband) application for interim and final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (Act) as sought in his Response filed 11 November 2020 be stayed until such time as the Husband files a Section 60I Certificate as required by sub-s.60I(7) of the Act, to be given to the Husband by a family dispute resolution practitioner pursuant to sub-s.60I(8) of the Act.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Sub-section 60I(9)(d) relates to circumstances of urgency. In the Husband’s 11 November 2020 Affidavit the Husband deposed that since separation he had been in contact with each of the Children via telephone calls and SMS each day and that he had spent time with the Children each Sunday for about two hours at the McDonalds at D Shopping Centre in Suburb C.[14] The Solicitor for the Husband submitted that he was instructed however that the Children’s weekly time with their father had not taken place for the previous 4 weeks.[15] The Solicitor for the Husband submitted that the Children would be prejudiced by the delay if the matter was adjourned, as they had a meaningful relationship with both parents.[16] The Solicitor for the Wife submitted that there was no circumstances of urgency articulated by the Husband.[17] In my view, urgency for the purposes of sub-s.60I(9)(d) has not been demonstrated in circumstances where the Husband has been having regular contact with the Children, albeit not as much contact as he would desire to have. Neither sub-ss.60I(9)(e) or (f) are applicable to this case.[14] Husband’s 11 November 2020 Affidavit at [19].[15] Transcript P9:L26-27.[16] Transcript P9:L20-22.[17] Transcript P3:L9-10.CONCLUSION Therefore I determine that none of the exceptions in sub-s.60I(9) of the Act apply in this case and in the circumstances sub-s.60I(7) of the Act applies. Following the judgment of Kent J in Ellwood & Ravenhill I do not intend to hear the Husband’s application in the Response for interim parenting orders under Part VII of the Act until a Section 60I Certificate is filed by the Husband. I do not propose to make parenting orders which may constitute legal error.[18] I also have regard to the object of s.60I of the Act which is clearly stated in sub-s.60I(1).[18] Ellwood &Ravenhall at [32] and [33]. The Husband must therefore file a Section 60I Certificate provided by a family dispute resolution practitioner under sub-s.60I(8) of the Act before the Court will hear the Husband’s application for Part VII interim and final parenting orders.. The Part VII application in the Response for interim and final orders will be stayed until such time as a Section 60I Certificate is filed. Orders will be made accordingly. I have chosen not to dismiss the Part VII application in the Response as the Wife’s Solicitor has submitted that I should order, as I respectfully agree with the judgment of Judge Jarrett in Valack that the filing of a Section 60I Certificate is not a jurisdictional requirement to commence a proceeding for Part VII orders.[19][19] Valack at [21] and [28]. An order will also be made adjourning the proceeding for mention. The records of the Court indicate that the property proceeding did not settle at the Conciliation Conference on 8 December 2020. Further directions will need to be made in relation to the property proceeding at the mention. In the event that a Section 60I Certificate is filed by Husband by the mention date, the requirements of sub-s.60I(7) of the Act may then be satisfied, subject to review by the Court.

Ratio Decidendi

Legal Principle Established

I turn now to consider the circumstances of this case.CONSIDERATION I respectfully adopt the reasoning of Judge Jarrett in Valack that the filing of a Section 60I Certificate is not a jurisdictional requirement to commence a proceeding for Part VII orders. Therefore the question that I have to consider is whether any of the exceptions in sub-s.60I(9) of the Act apply in this case? Clearly sub-s.60I(9)(a) is not applicable. The Wife does not consent to the non-filing of the Section 60I Certificate and has suggested that instead the parties and the Children engage in confidential family therapeutic counselling.[11] In relation to sub-s.60I(9)(b) the Wife has made allegations of family violence in the Wife’s 19 August 2020 Affidavit,[12] however there was no intervention order and the Husband denies these allegations in the Husband’s 11 November 2020 Affidavit.[13] Sub-section 60I(9)(c) is not applicable as the application is not in relation to a particular issue. [11] Transcript P3:L10-16.[12] Wife’s 19 August 2020 Affidavit at [36] to [44].[13] Husband’s 11 November 2020 Affidavit at [26]. Sub-section 60I(9)(d) relates to circumstances of urgency. In the Husband’s 11 November 2020 Affidavit the Husband deposed that since separation he had been in contact with each of the Children via telephone calls and SMS each day and that he had spent time with the Children each Sunday for about two hours at the McDonalds at D Shopping Centre in Suburb C.[14] The Solicitor for the Husband submitted that he was instructed however that the Children’s weekly time with their father had not taken place for the previous 4 weeks.[15] The Solicitor for the Husband submitted that the Children would be prejudiced by the delay if the matter was adjourned, as they had a meaningful relationship with both parents.[16] The Solicitor for the Wife submitted that there was no circumstances of urgency articulated by the Husband.[17] In my view, urgency for the purposes of sub-s.60I(9)(d) has not been demonstrated in circumstances where the Husband has been having regular contact with the Children, albeit not as much contact as he would desire to have. Neither sub-ss.60I(9)(e) or (f) are applicable to this case.[14] Husband’s 11 November 2020 Affidavit at [19].[15] Transcript P9:L26-27.[16] Transcript P9:L20-22.[17] Transcript P3:L9-10.CONCLUSION Therefore I determine that none of the exceptions in sub-s.60I(9) of the Act apply in this case and in the circumstances sub-s.60I(7) of the Act applies. Following the judgment of Kent J in Ellwood & Ravenhill I do not intend to hear the Husband’s application in the Response for interim parenting orders under Part VII of the Act until a Section 60I Certificate is filed by the Husband. I do not propose to make parenting orders which may constitute legal error.[18] I also have regard to the object of s.60I of the Act which is clearly stated in sub-s.60I(1).[18] Ellwood &Ravenhall at [32] and [33]. The Husband must therefore file a Section 60I Certificate provided by a family dispute resolution practitioner under sub-s.60I(8) of the Act before the Court will hear the Husband’s application for Part VII interim and final parenting orders.. The Part VII application in the Response for interim and final orders will be stayed until such time as a Section 60I Certificate is filed. Orders will be made accordingly.