Conlon and Conlon

[2019] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONLON & CONLON [2019] FCCA 2195

Catchwords:
FAMILY LAW – Parenting – application for Review of a Registrar’s refusal to grant a s.60I exemption – where the father filed an application following the mother’s unilateral relocation with a baby now 5 months old to a place 2.5 hours’ drive from the former matrimonial home – father seeking an exemption from providing a s.60I certificate on the ground that the matter is urgent – no risk of harm issues – where the evidence provided by the father insufficient to justify a finding that the matter is urgent – Application for Review dismissed.

Legislation:

Family Law Act 1975 (Cth), s.60I

Federal Circuit Court Rules 2001 (Cth), rr.20AA, 20

Cases Cited:

C & S (1999) FamCA 66

Applicant: MR CONLON

Respondent: MS CONLON

File Number: NCC 2136 of 2019

Judgment of: Judge Terry

Hearing date: 31 July 2019

Date of Last Submission: 31 July 2019

Delivered at: Newcastle

Delivered on: 13 August 2019

REPRESENTATION

Solicitors for the Applicant: Powe & White Family Lawyers

ORDERS

1. The application for review filed on 29 July 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2136 of 2019

MR CONLON

Applicant

And

MS CONLON

Respondent

REASONS FOR JUDGMENT

Introduction

1. On or about 9 July 2019 Mr Conlon (“the father”) sent to the court for filing an initiating application in which he sought orders that:

   i)He and the Ms Conlon (“the mother”) have equal shared parental responsibility for [X] born on … 2019.

   ii)The mother cause the child’s residence to be relocated within 20k radius of Suburb A Public School.

   iii)To implement this order the father permit the mother to have sole occupation of the former matrimonial home at B Street, Suburb A.

   iv)The child spend time with the father each Monday and Thursday from 4.00pm to 6.00pm and each Saturday from 10.00am to 2.00pm.

   v)If the mother failed to relocate to the Suburb A area then the child live with the father.

2. The father sought a short service listing  and an order that:

   All time limits and rules be abridged and or dispensed with in order for the applicant to bring this application on an urgent.

3. The father did not however file a s.60I certificate and s.60I(7) of the Family Law Act 1975 provides as follows:

   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.

4. S.60I (9) sets out a number of circumstances in which subsection 7 does not apply and a party who wishes to apply for an exemption from complying with subsection 7 can file a form created for this purpose. The father did not do this but his solicitor sent a letter to the Court which said as follows:

   I note that a Section 60I certificate has not been obtained. I therefore seek exemption under Section 60(9)(d) of the Family Law Act 1975. That is, that the Application is made in circumstances of urgency.

   In that regard we refer you to the Affidavit of Mr Conlon affirmed 9 July 2019 and in particular paragraphs 53, 54 and 55. That is, the Mother has unilaterally relocated the child’s residence to Suburb C on 17 June 2019, which is 2.5 hours’ drive north of the parties’ home in Suburb A and thereafter withheld the child until 6 July 2019. The subject child of the proceedings is some 5 months old.

5. The father’s application came before a Registrar on 15 July 2019. One of the powers delegated to a Registrar by r.20.00A of the Federal Circuit Court Rules 2001 (FCCR) is:

   To decide if subsection 60I (7) applies to an application for a Part V11 order about a child.

6. The Registrar declined to accept the documents for filing and made the following note on the Initiating Application:

   Leave to file with s.60I exemption refused.

   Leave to issue short service refused.

7. No reasons were given; Registrars are not obliged to give reasons for decisions of this nature.

8. A decision made by a Registrar pursuant to a power delegated by r.20AA is reviewable by this court and on or about 19 July the father sent an Application for Review to the court.[1] He sought orders that he be granted short service to list the matter (his original application) before a Judge of the Federal Circuit Court on an urgent basis, that all time limits and rules be abridged and dispensed with in order for him to bring his application on an urgent basis and that the requirement for him to obtain a Section 60I Certificate be dispensed with.

   [1] The Application for Review is marked as filed on 29 July 2019 but it arrived in the registry well before that.

9. Although the father again sought short service, the decision to be reviewed can only be the decision to refuse to dispense with the requirement for a s.60I certificate. The Registrar did add under her refusal to dispense with this requirement the words “Leave to issue short service refused” but she did not allocate a mention date because the documents were not accepted for filing and the words “Leave to issue short service refused” are otiose.

10. The father’s Application for Review was listed before me for consideration on 31 July 2019 at 4.15pm.

11. R.20.03 of the FCCR provides that the review must proceed by way of a hearing de novo and that the court can give a party leave to rely on further evidence. The father’s solicitor did not seek to rely on further evidence and made submissions.

Background

1. The father is 33 and is a labourer. The mother is also 33 and is a health care worker.

2. According to the father (and at present I only have the assertions in the father’s affidavit to go on) the parties commenced cohabitation in 2013 and separated on 15 June 2019. They have one child, [X], born on … 2019.

3. The father said that the parties initially lived together in Sydney but in or about 2017 they moved to the Region D and in late 2017 purchased a home in Suburb A.

4. The mother obtained work at Region D Hospital in Town F. The father took a little longer to obtain work locally but after 3 or 4 months he obtained work as a labourer for a Region D company. He worked remotely from home until March 2019 when he began working from the head office in Town F.

5. After [X] was born on … 2019 the mother was his primary carer but the father said that he took two weeks leave after the birth and was significantly involved in the child’s care before and after work and on weekends.

6. There was an incident between the parties on 18 May 2019 revolving around the mother not wanting to take part in the paternal grandfather’s birthday party. An argument ensued in which the father’s sister reached into the mother’s car with a view to taking her car keys, a futile attempt as the car was a push start car. The mother made a complaint to police but they took no further action.

7. Shortly after this the mother took [X] to the maternal grandparents’ home at Suburb C for seven days. The mother then returned home and the parties had some relationship counselling. The father said that he thought that things might be resolving but then the mother went to the maternal grandparents’ home on 31 May and remained until 6 June.

8. The parties attended relationship counselling on 13 June following which the father decided to spend the weekend with his parents in Sydney. When he arrived home on 15 June the mother and [X] were gone; the mother had again returned to the maternal grandparents’ home.

9. The father tried to make arrangements to see [X]. On 6 July the mother met him at Town G, about half way between Suburb A and Suburb C and he spent about 1 ½ hours with [X] with the mother present. On 15 July 2019 he filed his application.

10. In his affidavit the father said that he wanted the mother to return to Suburb A so that he could spend time with [X] on three days each week. He said that if the mother refused to return he was prepared to resign from his job and take on the full time care of [X].

11. The father disclosed the following issues about himself:

    i)That he was diagnosed with anxiety and depression in 2017.

    ii)That this diagnosis followed a voluntary admission to the Suburb E Hospital for two weeks because he was having suicidal thoughts. He was prescribed medication but had tapered off and ceased taking one medication while continuing to take Fluoxetine.

The father’s solicitor’s submissions

1. The father’s solicitor submitted that the matter was urgent because it was important that the father was able to spend regular short periods of time with the child in order to establish a strong bond with him and that without court intervention compelling the mother to return to the Suburb A area this would not occur.

2. He submitted that the father had a strong case to compel the mother to return because she had unilaterally relocated. In support of that he referred to C & S[2] in which Justice Warnick stressed among other things that important issues such as relocation should not be decided against a situation of recent development.

   [2] C & S (1999) FamCA 66

3. The father gave no evidence about having sought any mediation to resolve the parenting issues. When I asked the father’s solicitor why he replied to the effect of “Do you have any idea how long that takes?”

4. The answer is “No, I don’t” and the father gave no evidence about it in his affidavit.

Discussion

1. S.60I (1) provides as follows:

   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 dispute resolution before the Part VII order is applied for.

2. There is good policy reason for this provision. It is preferable that the parents of children make their own arrangements for their children. They know their children; they know their different personalities, attachments and views. They are aware of what they can offer their children in light of their work commitments, where they live and any issues they may be suffering from.

3. Family dispute resolution practitioners are trained to assist people to examine their situation and endeavour to reach an agreement rather than to remain fixed at the position they are adopting when they enter the room.

4. It is better for parents are if they can stay out of an adversarial system if possible. Litigants sadly often perceive a benefit in making allegations about the other party rather than extolling their virtues and the ill-will created by allegations which the other party perceives to be false or denials which the other party perceives to be false can make matters so much more difficult to resolve.

5. The court system is also strained and overburdened. It has insufficient resources to allow it to deal with all matters which are filed in as timely a fashion as the parents and community would like.

6. Of course not all matters can stay out of court. Issues such as family violence, drug use or alcohol abuse, the fact that a parent has a personality disorder or a serious mental illness or that a parent has an unrealistic expectation about outcomes and proposes equal time for a young child or has an ulterior motive for proposing no time just to name a few can make it either undesirable for dispute resolution to be attempted or impossible for even a skilled mediator to assist parties to reach their own agreement.

7. Based on the father’s affidavit no such issues exist in this case. Absent the unilateral relocation, the case described by the father is the kind of case where the parents should be making a genuine effort to resolve their dispute before coming to court.

8. The father’s solicitor relied heavily on the fact that the mother had unilaterally relocated. He submitted in effect that because of this the matter was urgent, in other words that it required speedy action or attention by the court.

9. The problem for the father is that there are gaps in his evidence. The parties are communicating and he did not give any evidence about having spoken to the mother and offered to allow her to reside in the former matrimonial home pending resolution of the parenting matter nor of inquiring of her whether she intended to remain living at Suburb C with her parents or whether she had gone there for some temporary respite.

10. He did not give any evidence of making inquiries about the availability of mediation and being informed that organising it would be a lengthy process.  

11. Every case of unilateral relocation is different and there are many which would justify an exemption on the basis of urgency. They may involve a parent who disappears, potential risk of harm to children because of concerns about the relocating parent or a new partner of the relocating parent, a relocation which involves a parent also removing children from the care of the parent with whom they have been living for some time or evidence that the relocating parent has given a clear indication that they intend never to return to the former area. The fact that children have been taken a great distance away and that no time has been facilitated since the relocation may be another factor justifying the case being treated as urgent.

12. However the court must be mindful in every case of the object of s.60I, the benefit of creating space for parties to talk about their parenting matter before the ill-will so often caused by allegations and counter-allegations takes hold and the need to relieve pressure on court resources.

13. The mother and father are communicating. The father has seen the child face to face at least once and the mother has sent him photos and has arranged for him to see the child via Skype. It is not clear on the father’s material that no resolution is possible outside the court system, for example by the father allowing the mother to return to the home. I am not satisfied that circumstances of urgency are made out and I intend to dismiss the Application for Review.

14. The father will not lose his chance of obtaining an order for the mother to return to the area she came from (noting of course that whether he obtains one is within the discretion of the court) simply because it takes some further time for the parties to talk matters through.

15. There is of course nothing to prevent the father refiling his application with additional evidence which may make a difference to how a fresh application for a s.60I exemption is dealt with. However given that he does not allege family violence and that there is no evidence that the child is at risk of harm in the mother’s care I would urge him to also put the wheels in motion to commence family dispute resolution.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       13 August 2019