Carpenter and Carpenter
[2018] FCCA 2979
•18 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARPENTER & CARPENTER | [2018] FCCA 2979 |
| Catchwords: FAMILY LAW – Parenting – the requirement to attend family dispute resolution – where a Registrar has granted an exemption to the requirement of family dispute resolution in circumstances where family dispute resolution was appropriate – consideration of section 60I – issue of costs in circumstances where a party has not sought to avail themselves of appropriate dispute resolution processes. |
| Legislation: Family Law Act 1975 ss.10J, 60I(9)(e), 67Z, 67ZBA, pt. II Federal Circuit Court Rules 2001 div. 22A |
| Cases cited: Bryant & Hawkesbury Radio Communication Co-operative Society Limited [2014] [2014] NSWSC 848 Aon Risk Services v Australian National University [2009] HCA 27 Other articles cited: |
| Applicant: | MS CARPENTER |
| Respondent: | MR CARPENTER |
| File Number: | PAC 3692 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 18 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Gardiner of Rafton Family Lawyers |
| Counsel for the Respondent: | Mr Avery-Williams |
| Solicitors for the Respondent: | John Hall Lawyers |
ORDERS
The matter is adjourned for further mention and directions to 5 December 2018 at 12 noon.
By consent Orders are made in accordance with the Minute of Order executed by the parties marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Applicant to provide a typescript of the Minute of Orders made today in word format direct to my Associate by email within 7 days of today’s date.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Suburb A for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).
Prior to the next Court event, each party shall file and serve a brief Affidavit as to compliance with the above Orders for Family Counselling without infringing upon the confidentiality of that process, setting out a summary of what that party has learnt from their attendance at Family Counselling and how they have or intend to implement that learning in their future parenting and in the event that either party should fail to comply with the above Family Counselling Orders, then they will be required to show cause as to why their Application or Response should not be dismissed for want of prosecution.
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my Chambers for the purpose of Orders being made in Chambers and hearing dates vacated.
IT IS NOTED that publication of this judgment under the pseudonym Carpenter & Carpenter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3692 of 2018
| MS CARPENTER |
Applicant
And
| MR CARPENTER |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today by way of first return date.
The proceedings relate to issues of both property adjustment and parenting. It is the aspect of parenting that is relevant for this determination.
The parties to the proceedings are Ms Carpenter, the Applicant, and Mr Carpenter, the Respondent.
The parenting aspect of the proceedings relates to a child, [X], born 2005, presently 12, soon to turn 13.
The dispute between the parties with respect to [X] would not appear to be substantial, in that:
a)The relief that is sought by the parties is, in the case of the Applicant, a plea for substantial and significant time falling only slightly short of equal time. In the case of the Respondent, Orders are sought for equal time;
b)The parties have in place a consensual agreement that has operated without difficulty for some little time, although the parties each seek to agitate for change.
Each party has, as Division 22A of the Federal Circuit Court Rules 2001 require, filed a Notice of Risk. Neither party identifies any risk. Accordingly, but for the requirements of the Federal Circuit Court Rules 2001, neither party would have been obliged, by reference to sections 67Z and 67ZBA of the Family Law Act 1975, to have filed such a notice.
The issue that causes some consternation, at least from the Court’s perspective, is the fact that a Registrar of the Court has granted an exemption from the requirement to attend Family Dispute Resolution, prior to commencing proceedings. That exemption is apparently granted, pursuant to section 60I(9)(e) of the Act.
The Applicant has not sought to review the decision, explicably so. It was the Applicant who sought the determination by a Registrar in Chambers to permit the Application to be filed.
A determination as to whether an exemption is to be granted under section 60I of the Act is an ex parte, interlocutory determination made in Chambers. It is not a transcribed process. Accordingly, reasons are not given, save to the extent that a Registrar’s determination sheet is completed and dated. The sheet completed in this matter clearly identifies that the basis upon which exemption is granted is:
One of 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 or some other reason).
That determination mirrors the wording of section 60I(9)(e) of the Act.
An Affidavit of Non-filing of Family Dispute Resolution Certificate was filed with the Initiating Application. The Affidavit sets out the entirety of evidence relied upon as the basis for seeking the exemption. That evidence comprises one sentence, as follows:
I seek that my application be heard in circumstances where Relationships Australia have a significant delay of several months in being able to facilitate mediation (sic).
Family Dispute Resolution, as defined in Part II of the Family Law Act 1975, rather than mediation, is provided by Relationships Australia. The interchangeable use of the terms and conflation of the two terms is inappropriate. They are separate concepts. For example, mediation would not, but for section 131 of the Evidence Act1995 attract any evidential privilege in the fashion that Family Dispute Resolution, provided by an accredited FDRP, attracts an evidentiary privilege under section 10J Family Law Act 1975. The distinction between the two concepts and definitional integrity is important.
The exemption that is granted is not, as indicated, the subject of review by the Applicant. There would be some issue as to whether the Respondent is entitled to seek to review the Registrar’s decision, not having been a party to the decision or the process leading to the decision. The issue need not be pursued further.
The requirements of section 60I of the Act were introduced by the 2006 amendments to the Family Law Act 1975. The object of the section in subsection (1) is clear:
…to ensure that all persons who have a dispute about matters that may be dealt with under this part [being a parenting application] make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
Whilst the object is not a substantive provision of the Act to be applied to facts and circumstances of the case, one would think that the good Registrar might have had regard to the object of the section, being Parliament’s express intent that parties would attend Family Dispute Resolution, save and except in circumstances where an exemption is made out, in making their determination. That is a relevant issue in this determination.
The explanatory memorandum to the 2006 amendments, at paragraph 94, made clear that the intention of section 60I was that:
A court cannot hear an application for an order under Part VII unless the applicant has also filed with the application a certificate by a Family Dispute Resolution Practitioner [or, as set out later within those provisions, at paragraph 97, that an exemption is established]
Paragraph 97 of the Explanatory Memorandum goes on to indicate:
These exemptions are intended to ensure that people will not be required to attend Family Dispute Resolution in circumstances that are inappropriate.
The fact that there may be a delay of some months to receive what is a government-funded and, thus, free service through a Family Relationship Centre or community-based FDR provider is not a circumstance which renders family dispute resolution “inappropriate”. Nor, with the greatest of respect to the good Registrar, is it a circumstance that means that a finding could be made that “one or both parties are unable to participate in Family Dispute Resolution”. It simply means that they must wait.
The Application seeking exemption is inappropriate and smacks of self-entitlement. For the effective operation of this Court, to enable the Court to avoid or address delay, it is important that Family Dispute Resolution, Family Counselling and ADR is engaged with when appropriate. There is nothing whatsoever raised by the evidence in this case that renders FDR inappropriate. The Application should simply have been refused.
The Respondent seeks that the Application be dismissed.
As there is no Application for review (indeed, it would be nonsensical for the Applicant to seek to review a decision that has been successfully determined in their favour after their instigation of the process) I do not propose to interfere with the Registrar’s decision, save and except that it will be and will remain an issue live in these proceedings, as to costs.
I am conscious of the note which accompanies section 60I(8) of the Act, that subsection dealing with certificates that might be issued by an FDRP, that:
The court may take the kind of certificate [indeed, the complete absence of one and the failure to take reasonable steps to seek to participate in Family Dispute Resolution] into account in considering whether to make an order referring the parties to Family Dispute Resolution and in determining whether to award costs against a party.
That which fell from the Supreme Court of New South Wales in Bryant & Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 looms large in that regard. Even though an Application for exemption has been made and granted, albeit inappropriately and without any evidential basis that would warrant or support the granting of an exemption, issues of costs still loom when a party, even if they obtain what they seek, has not sought to avail themselves of appropriate dispute resolution processes. But for Parliament’s exclusion of proceedings under the Family Law Act 1975 from the requirements of the Civil Dispute Resolution Act 2011, these proceedings would and should be struck out. It would be an injustice to the Applicant, having obtained an Order, to take that course in this circumstance.
However, it is a significant issue. As Field and Boulle opine:[1]
It is fundamental to any democratic society that there is access to a ready and available means of dispute resolution.
[1] Laurence Boulle & Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis Butterworths, 2016).
Parliament has determined that there should be such dispute resolution services available in the community without the need for invocation of this Court’s jurisdiction. Indeed, Rule 21 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 make very clear that the Court’s jurisdiction, coercive as it is, the most expensive and stressful means of dispute resolution,[2] should not be lightly invoked. Yet, in this case, the Court’s coercive jurisdiction has been invoked needlessly, unnecessarily and with the generation of cost not only to these parties but the community.
[2] Though accepting as Justice Rares correctly points out that a Court is far more than a means of dispute resolution (see “Is Access to Justice a Right or a Service?” A paper presented at the Access to Justice – Taking the Next Steps Symposium held on 26 June 2015 at Monash University, organised jointly by the Australian Centre for Justice Innovation and the Australasian Institute of Judicial Administration).
The time that this case will take in addressing the dispute presented could have been avoided had the parties simply waited a few months and attended FDR. Rather than do so, the Applicant has sought to invoke this Court’s jurisdiction, thus guaranteeing significant delay and impacting upon the delay of other litigants, contrary to that which fell from the High Court of Australia, for example, in Aon Risk Services v Australian National University [2009] HCA 27.
Exemptions from attending FDR are not intended to be handed out like sweets at a children’s party or as simple reward for having asked. Parliament intends that Courts, as retired US Supreme Court Justice Sandra Day O’Connor has opined:
…are not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.
These parties will now attend FDR and nothing else will occur until they have.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 October 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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