Bellini & Bellini
[2021] FCCA 271
•18 February 2021
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
These are property and parenting proceedings. The only issue that that I am required to consider in these Reasons for Judgment is the requirement imposed by s.60I of the Family Law Act 1975 (Cth) (Act) for persons to attend family dispute resolution before applying for an order under Part VII of the Act.[1]
[1] ‘Family dispute resolution’ is defined in s.10F of the Act.
On 19 August 2020, the Applicant Wife Ms Bellini (Wife) filed an Initiating Application in which she sought property orders pursuant to Part VIII of the Act. On 11 November 2020, the Husband Mr Bellini (Husband) filed a Response in which he sought both property orders pursuant to Part VIII of the Act and leave to seek parenting orders pursuant to Part VII of the Act (Response) in relation to the parties’ children X born in 2004 (X) and Y born in 2007 (Y) (together, the Children).
There is no dispute that a certificate, given by a family dispute resolution practitioner as is required by s.60I of the Act (Section 60I Certificate), was not filed with the Husband’s Response, as is required by sub-s.60I(7) of the Act subject to sub-s.60I(9) of the Act. When the proceeding first came before the Court in the Duty List on 25 November 2020 the Husband’s Solicitor sought leave to commence proceedings relating to parenting matters and interim parenting orders. The Wife’s Solicitor however contended that the parenting proceeding should be dismissed as the Husband had not obtained a Section 60I Certificate.[2]
[2] Transcript P2:L21-23.
BACKGROUND
The parties married in 2003 and cohabitation commenced on that date. The parties separated on 18 May 2020 after a marriage of seventeen years. The Husband was born in 1976 and is aged 44. The Husband works as a tradesman. The Wife was also born in 1976 and is also aged 44. The Wife is unemployed and is receiving the Job Seeker allowance.
The parties have two daughters, X, currently aged 16 and Y, who has recently turned 14.
Upon separation, the Wife vacated the former matrimonial home in Suburb C with the Children and went to live with her sister. Since separation, the Children have lived with the Wife and spent minimal but regular time with the Husband.[3]
[3] Affidavit of the Wife, affirmed and filed 19.8.20 (Wife’s 19 August 2020 Affidavit) at [11]; Affidavit of the Husband, sworn and filed 11.11.20 (Husband’s 11 November 2020 Affidavit) at [19].
PROCEDURAL HISTORY
On 19 August 2020, the Wife filed her Initiating Application (Initiating Application) seeking interim and final property orders. The Wife sought an order that all times be abridged and that the proceeding be heard urgently, however that application was not acceded to by a Registrar of the Court. The Wife also filed on 19 August 2020 an affidavit (Wife’s 19 August 2020 Affidavit) and a Financial Statement (Wife’s Financial Statement).
On 11 September 2020, the Husband filed a Notice of Address for Service. On 11 November 2020, the Husband filed a Response (Response), an affidavit of the Husband (Husband’s 11 November 2020 Affidavit), a Financial Statement (Husband’s Financial Statement) and a Notice of Child Abuse, Family Violence or Risk (Husband’s Notice of Risk).
The Response sought the following interim parenting order:
8. The Husband shall have leave to seek orders in respect of Parenting matters in the Proceeding.
The Response also sought interim parenting orders that may be summarised as follows:
(a)The Wife file and serve an amended Initiating Application and any affidavits in regard to parenting on or before 9 December 2020.
(b)The parents have joint parental responsibility for the Children.
(c)Until further order the Children live with the Wife and spend time with the Husband at unspecified times.
(d)Pursuant to s.11F of the Act the parties and the Children urgently attend upon a Family Consultant for a Child Inclusive Conference.
(e)Both parties do all things necessary to encourage the Children to develop and maintain positive relationships with the other.
(f)Mutual non-denigration orders.
In the Response, the Husband sought to particularise the final parenting orders that he seeks after the parties have received a Family Report pursuant to s.62G of the Act.
The proceeding first came before the Court in the Duty List on 25 November 2020. The Husband and the Wife were each represented by their respective Solicitors. Interim property orders were made by consent and the parties were ordered to attend a Conciliation Conference on 8 December 2020. Judgment in relation to the Court’s jurisdiction to hear the Husband’s parenting application was reserved and all extant applications were otherwise adjourned to a date to be fixed. These are the Reasons for Judgment in relation to the Husband’s parenting application.
Documents relied on by the Parties
On 25 November 2020 the Wife’s documents before the Court were:
(1)The Initiating Application;
(2)The Wife’s 19 August 2020 Affidavit; and
(3)The Wife’s Financial Statement.
On 25 November 2020 the Husband’s documents before the Court were:
(1)The Response;
(2)The Husband’s 11 November 2020 Affidavit;
(3)The Husband’s Financial Statement; and
(4)The Husband’s Notice of Risk.
The Position of the Parties
Wife’s Position
The Solicitor for the Wife relied upon the decision of the Full Court of the Family Court in Ellwood & Ravenhill[4] (Ellwood & Ravenhill) where Kent J (sitting alone) considered the provisions of s.60I of the Act. The Solicitor for the Wife submitted that the parenting proceeding should be dismissed as the Husband had not obtained a Section 60I Certificate. It was also submitted that even though the Husband had sought leave to commence the parenting proceeding, it had not been articulated in any manner why leave was being sought.[5]
Husband’s Position
[4] [2019] FamCAFC 153.
[5] Transcript P2:L21-25.
The Solicitor for the Husband submitted that Ellwood & Ravenhill did not deprive the Court of jurisdiction to hear the Husband’s interim parenting application, notwithstanding the absence of a Section 60I Certificate. The Solicitor for the Husband relied upon paragraphs 31 and 32 of the judgment of Kent J in Ellwood & Ravenhill.
The Solicitor for the Husband also relied upon the judgment of Judge Jarrett, a Judge of this Court, in the matter of Valack & Valack[6] (Valack) for the submission that the filing of a Section 60I Certificate is not a necessary condition of the Court’s jurisdiction under Part VII of the Act. As a result, the Solicitor for the Husband then submitted that I should proceed to make interim parenting orders notwithstanding the Husband’s failure to file a Section 60I Certificate.
[6] [2020] FCCA 1354.
I will first consider the relevant legislation and then each of the decisions of Ellwood & Ravenhill and Valack referred to by the Solicitors for the parties.
RELEVANT LEGISLATION
Section 60I of the Act relevantly provides as follows:
Object of this section
(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family resolution before the Part VII order is applied for.
[…]
Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order
(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
Certificate by family dispute resolution practitioner
(8) A family dispute resolution practitioner may give one of these kinds of certificates to a person:
(a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person's failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;
(aa) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;
(b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;
(c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;
(d) a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution.
Exception
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i) to be made with the consent of all the parties to the proceedings; or
(ii) in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i) all the application is made in relation to a particular issue;
(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii) the application is made in relation to a contravention of the order by a person:
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
Referral to family dispute resolution when exception applies
(10) If:
(a)a person applies for a Part VII order: and
(b)the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and
(c)subsection (7) does not apply to the application because of subsection (9);
the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.
(11) The validity of:
(a) proceedings on an application for a Part VII order; or
(b)any order made in those proceedings;
is not affected by a failure to comply with subsection (7) in relation to those proceedings.
(12) In this section:
“dispute resolution provisions” of the Family Law Rules 2004 means:
(a) Rule 1.05 of those Rules; and
(b) Part 2 of Schedule 1 to those Rules;
to the extent to which they deal with dispute resolution.
(Emphasis in original)
RELEVANT LEGAL PRINCIPLES
In Ellwood & Ravenhill the father filed an Initiating Application in which he sought parenting orders in relation to the parties’ children. The father did not file a Section 60I Certificate at the time of filing the Initiating Application. By an Application in a Case the mother sought orders that the father’s Initiating Application be dismissed. The mother’s Affidavit in support of the Application in a Case identified the father’s failure to comply with s.60I of the Act as the reason for seeking the dismissal of the father’s Initiating Application. When the matter came before the Judge in the Federal Circuit Court, the Judge made orders that included the parties attending a conference with a family consultant pursuant to s.11F of the Act and otherwise adjourned the proceeding for mention to a future date. The mother then appealed the orders of the Judge of the Federal Circuit Court and sought an order that the Initiating Application be dismissed. It was in this context that the appeal came before Kent J.[7]
[7] Ellwood & Ravenhill at [1] – [7].
In Ellwood & Ravenhill Kent J described the objectives of s.60I(1) of the Act as follows:
21. The object expressed in subsection (1) of s 60I is self-explanatory. That object finds reflection in the mandatory requirement in subsection (7) as to the filing of a certificate with the Initiating Application for a Part VII order, subject to the applicability of one of the exceptions in subsection (9). That is, subsection (7) is expressed in mandatory terms and cannot be construed as giving rise to some discretion, such as, the Court being entitled to consider the likelihood of family dispute resolution achieving a resolution. In short, the provisions emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for the parties to attend family dispute resolution with a family dispute resolution practitioner.
(Emphasis added)
In relation to the Court’s jurisdiction to hear an application for parenting orders where a Section 60I Certificate had not been obtained Kent J said as follows:
30. The mother argued on appeal to the effect that where subsection (7) of s 60I applies and is not complied with, the Court does not have jurisdiction to entertain an application for Part VII orders. For this argument the mother referred to the mandatory expression in subsection (7) that “…a court exercising jurisdiction under this Act must not hear an application for a Part VII order… (emphasis added)
31. However, when the entire terms of the section are considered, it does not appear to be correct to conclude that the effect of the section is to deny jurisdiction. Quite apart from the Court having to consider the possible application of one of the exceptions in subsection (9), there is the specific provision in subsection (11).
32. As can be seen from the express effect of subsection (11) quoted above, neither the validity of proceedings for a Part VII order nor an order made in those proceedings is “affected by a failure to comply with subsection (7) in relation to those proceedings”. The obvious purpose of subsection (11), as is reflected in the Revised Explanatory Memorandum, is to preserve the integrity of proceedings and orders made where, for example, perhaps through oversight, subsection (7) is not complied with and the matter proceeds. It follows that it cannot be said that the Court lacks jurisdiction, rather, the failure to apply subsection (7) may amount to legal error rendering an order made liable to be set aside on appeal, as is the position in this case.
33. With all due respect to the parties, neither of them is legally qualified so the Court did not have the benefit of extensive and researched legal argument on the point concerning jurisdiction. However, my tentative view is that the subject orders do not fail for want of jurisdiction for their making. It is the legal error in failing to apply subsection (7) which results in the subject orders being liable to be set aside on appeal.
34.For these reasons, the mother’s appeal must be allowed and the subject orders set aside and the father’s Initiating Application ought be dismissed.
(Emphasis added)
The case of Valack was a purported application to review a Registrar’s decision which was said to be filed pursuant to r.20.02 of the Federal Circuit Court Rules 2001 (Cth). The Registrar had refused to accept the applicant’s Initiating Application lodged via the Commonwealth Courts Portal, in which the applicant sought property adjustment orders and parenting orders. At the time the Initiating Application was filed it was not accompanied by a Section 60I Certificate. The Registrar’s refusal was expressed in the following terms:
The Registrar has not approved your request for non-filing a current Family Dispute Resolution Certificate. You must seek Family Mediation.[8]
[8] Valack at [3].
In considering sub-ss.60I(7) to (9) Judge Jarrett said the following:
8. A few things can be noticed about these subsections. First, neither subsection deals expressly with the commencement of applications in the Court. The work done by s.60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. Second, the courts that are subject to that proscription are courts which are exercising jurisdiction under the Family Law Act. That is to say, the text of the subsection is directed towards a court that is seized of a matter then before it. The use of the phrase exercising jurisdiction is expressed in the present tense and is consistent with the court then doing something in connection with an application that is before it. That, for example might be contrasted with a phrase such as a court invested with jurisdiction under this Act, or a court that has jurisdiction under this Act, which might more readily be seen as consistent with a court that might come to exercise jurisdiction under the Family Law Act, whether or not it is seized of a particular matter. Third, to be exercising jurisdiction must mean that the application in which the jurisdiction is being exercised has already been commenced. The use of that phrase does not sit comfortably with proceedings that have not yet been commenced. Fourth, the use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. Examples from other areas of this court’s jurisdiction illustrate the point.
Judge Jarrett then considered the matter of the Court’s jurisdiction in circumstances where a Section 60I Certificate has not been filed with the application for a Part VII order. His Honour then said:
13. […] As I have pointed out, the text of s.60I(7) contemplates that the court is exercising jurisdiction but it may not hear the application before it. That is underscored by s.60I(11) of the Act. That section provides that the validity of proceedings on an application for a Part VII order or any order made in those proceedings is not affected by a failure to comply with s.60I(7) in relation to those proceedings.
14. Section 60I(7) is expressed to be subject to s.60I(9). That subsection sets out the circumstances where s.60I(7) does not apply. By its terms, it does not deal with circumstances in which an application for a Part VII order might or might not be commenced.
15. The circumstances set out in s.60I(9)(a) are self-explanatory, capable of objective assessment and their engagement is not dependent upon the Court’s satisfaction, although if there were a challenge to the Court hearing a matter on the basis of the absence of a s.60I(7) certificate, a court might have to make a finding about the existence of one of the matters set out in that subsection. The matters set out in s.60I(9)(d) and 60I(9)(e) are more problematical because they are not matters capable of objective assessment but must rely upon the assessment of some person, although the Act does not say who is responsible for the assessment or when it must be made.
16. Relevantly to the present proceedings, s.60I(7) does not apply where the Court is satisfied of one of the matters set out in s.60I(9)(b) or 60I(9)(c). The applicant argues in her outline of submissions filed on 31 March 2020 that s.60I(9)(b) was engaged in this case because the Court ought to have been satisfied that there were reasonable grounds to believe that there had been an abuse of the child by one of the parties to the proceedings or that there had been family violence by one of the parties to the proceedings.
[…]
20. However, for the reasons that I have expressed above, that power can only be exercised by a judge or a Registrar in existing proceedings because the proscription in s.60I(7) operates against hearing an application. That is to say, the power in s.60I(9)(b) or 60I(9)(c) is not available to be exercised until proceedings have been commenced. Here, the Registrar purported to exercise the power before the proceedings were commenced. But the power was not then engaged.
21. A determination about whether s.60I(7) applies to the proceedings cannot and should not be made before proceedings that would otherwise engage s.60I are filed. In the absence of an extant application no occasion for the exercise of the power set out in s.60I(9) arises. The purported exercise by the Registrar to decide whether s.60I(7) did not apply in this case was improper.
[…]
28. […] for the reasons I have set out above, the presence or absence of a s.60I(7) certificate was not a jurisdictional requirement that needed to be met before the application was filed;
the initiating application sought both property adjustment orders and parenting orders. Whilst s.60I(7) might have operated to prevent the Court from hearing the parenting orders application, there was nothing to prevent the Court from hearing the property adjustment application; […]
(Emphasis added)
Therefore Judge Jarrett concluded that the filing of a Section 60I Certificate was not a jurisdictional requirement to commence a proceeding for Part VII orders.[9]
[9] Valack at [21] and [28].
In Ellwood & Ravenhill Kent J said that where none of the exceptions in sub-s.60I(9) apply, the failure to apply sub-s.60I(7) may constitute legal error. Therefore orders made by the Court in breach of sub-s.60I(7) may be liable to be set aside on appeal for legal error.[10]
[10] Ellwood & Ravenhall at [32] and [33].
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.
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.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC. Associate:
Dated: 18 February 2021
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