Carmel-Fevia and Fevia (No. 2)

[2013] FamCA 383

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA (NO. 2) [2013] FamCA 383

FAMILY LAW – PRACTICE AND PROCEDURE – Wife is exempt from seeking a certificate from a family dispute resolution practitioner

Family Law Act 1975 (Cth)

APPLICANT: Ms Carmel-Fevia

RESPONDENT: Mr Fevia

FILE NUMBER: MLC 4389 of 2008

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC and Mr Thompson

SOLICITOR FOR THE RESPONDENT: Saxbys Lawyers

Orders

1. That pursuant to s 60I(9) of the Family Law Act 1975 (Cth), the wife is exempt from seeking a certificate from a family dispute resolution practitioner and has otherwise now leave to file and serve an initiating application seeking parenting orders.

2. That the wife have leave to file a further affidavit within 14 days of this date.

3. That the application in a case filed 23 November 2012 and the response to that application filed 27 February 2013 are adjourned to the Senior Registrar’s List at 10.00am on 17 April 2013 for interim parenting orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carmel-Fevia & Fevia (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4389 of 2008

Ms Carmel-Fevia

Applicant

And

Mr Fevia

Respondent

REASONS FOR JUDGMENT

1. I have an oral application before me which is effectively limited to section 60i of the Family Law Act. Section 60i subsection 9 provides exceptions to the requirement that the parties attend a dispute resolution practitioner before being in a position to be able to file. Subsection 9 has a variety of exceptions. Indeed, most of them are extremely vague, and I’m not aware of any authority that is determinative one way or the other. But two of those exceptions are that the application is made in relation to a particular issue, which seems to me to be a bit odd because most applications are made in relation to particular issues.

2. But the other is that the application is made in circumstances of urgency.  Paragraph 21 of an affidavit filed by the wife on 27 February 2013 sets out the problems associated with E, who is now 10 years of age.  The wife asserts that the child has seen a school counsellor for some years.  She is anxious about being separated from the mother.  She is having that anxiety manifested in physical issues such as chronic stomach pains and nausea, and the counsellor that the wife has said the child is consulting has told her that E suffers from a generalised anxiety problem.

3. Mr Thompson, on behalf of the husband, says that his client’s view is that the problems are not quite as significant as those articulated by the wife, and no doubt the evidence will come out in the fullness of time. It seems to me the only question I have to be satisfied about is whether or not that evidence alone satisfies one of the requirements of section 60i subsection 9, and I’m satisfied that it does. What that exemption would normally then do is provide that the party can file their application without getting the certificate, and to go through – the application would go through the normal channels. That seems also, to me, to be unnecessary having regard to the litigation that these parties have been involved in over the years.

4. There is no reason why this case can’t go direct to the Senior Registrar for a determination of the discrete issues, and that is the area that I propose to direct the application to go to as soon as possible.  Not having access to the Senior Registrar’s diary at this stage, what I propose to do is to order that it be listed on a date to be advised by the court.  I point out at this stage that the parties have had some difficulty trying to fit around the requirements of their counsel and the parties themselves.  I do not propose to allow that to occur in this case, and in regard to the fact that I’m satisfied that there is urgent enough reason to give the exception.  Whatever the Court can provide, the Court will provide, and the matter must proceed on that day. 

RECORDED   :  NOT TRANSCRIBED

1. The application in a case was filed on 23 November last year, and the response was filed on 27 February 2013.  And what I’m adjourning to the Senior Registrar is the issues within his jurisdiction, on a date to be fixed and to be advised as soon as practicable. 

I certify that the preceding five (5) paragraphs is a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 March 2013.

Associate: 

Date:  22 April 2013