Ellwood and Ravenhill
[2019] FamCAFC 153
•6 September 2019
FAMILY COURT OF AUSTRALIA
| ELLWOOD & RAVENHILL | [2019] FamCAFC 153 |
| FAMILY LAW – APPEAL – PARENTING – Initiating Proceedings – Section 60I certificate – Where the father initiated proceedings without having undertaken family dispute resolution – Where the subject Initiating Application did not fall within an exception in s 60I(9) – Where the primary judge made orders notwithstanding there being no s 60I certificate – Where the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied – Consideration of s 60I(11) – Where the purpose of s 60I(11) is to preserve the integrity of proceedings and orders made where, for example, perhaps through oversight subsection (7) is not complied with – Where the subject orders likely do not fail for want of jurisdiction but the failure to apply subsection (7) amounts to legal error – Appeal allowed. |
| Family Law Act 1975 (Cth) ss 60I, 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) |
| APPELLANT: | Ms Ellwood |
| RESPONDENT: | Mr Ravenhill |
| FILE NUMBER: | BRC | 10092 | of | 2008 |
| APPEAL NUMBER: | NOA | 19 | of | 2019 |
| DATE DELIVERED: | 6 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 25 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
Orders
The appeal from the orders made in the Federal Circuit Court of Australia on 11 February 2019 be allowed.
The orders made in the Federal Circuit Court of Australia on 11 February 2019 are set aside.
The Initiating Application filed by [Mr Ravenhill] on 19 October 2018 (and as subsequently amended) be dismissed.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellwood & Ravenhill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 19 of 2019
File Number: BRC 10092 of 2008
| Ms Ellwood |
Appellant
And
| Mr Ravenhill |
Respondent
REASONS FOR JUDGMENT
The central issue raised in this appeal is the requirement imposed by s 60I of the Family Law Act 1975 (Cth) (“the Act”) for persons to attend family dispute resolution[1] before applying for an order under Part VII of the Act.
[1] As defined in s 10F of the Act.
On 19 October 2018, Mr Ravenhill (“the father”) filed an Initiating Application in which he sought parenting orders[2] concerning the parties’ children, S (born in 2002) and M (born in 2003) (“the children”). The children’s mother, Ms Ellwood (“the mother”) was named as the respondent to the application.
[2] Pursuant to Part VII of the Act.
It is not in issue that no certificate, given by a family dispute resolution practitioner, was filed with the father’s Initiating Application as is required by s 60I of the Act where subsection (7) of that section applies.
By an Application in a Case filed by the mother on 4 December 2018, the mother sought an order that the father’s Initiating Application be dismissed. The mother’s affidavit in support of that application articulated the father’s
non-compliance with s 60I as the central contention in support of her seeking dismissal of the father’s application.
The mother sought to agitate that central contention in the hearing of her application before the primary judge in the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 11 February 2019.
In the event, the primary judge did not dismiss the father’s Initiating Application. Rather, the primary judge made orders including an order for the parties to attend a conference with a family consultant pursuant to s 11F of the Act and otherwise adjourned the proceedings for mention to a future date.
It is from those orders that the mother appeals. The mother seeks that those orders be set aside and an order be made for the father’s Initiating Application to be dismissed.
For the reasons which follow, there is merit in the mother’s central contention concerning s 60I of the Act. In my judgment, the primary judge erred in law in proceeding to entertain the father’s application and to make the subject orders in circumstances of non-compliance with s 60I.
In this appeal, the appellate jurisdiction is being exercised pursuant to s 94AAA(3) of the Act.
Factual context
The parents began cohabitation on 1 June 1999, married on 2 February 2001 and finally separated on 16 January 2008. As earlier noted, their daughter was born in 2002 and is now 17 years old and their son was born in 2003 and he is now approaching his 16th birthday.
On 26 November 2008, the parents entered into consent orders regarding parenting arrangements providing that:
a)The parents have equal shared parental responsibility;
b)The children were to live with the mother from Saturday until Wednesday and with the father from Wednesday to Saturday until February 2009 when the children would commence to live with each parent on a week about basis.
Almost a decade after those consent orders were made, the mother filed a Contravention Application on 19 April 2017 alleging that the father failed to facilitate the child M’s time with her on some five occasions. However, the parties came to consent orders, made on 31 August 2017 (amended 1 September 2017) in the Federal Circuit Court, such that the 2008 consent orders were to remain in effect and that in the event of future disputes, the parties were to engage in therapeutic counselling.
Over time, the parenting arrangements changed informally. The daughter commenced spending two weeks of time with one parent and then two weeks of time with the other as opposed to a week about arrangement. In advance of the subject Initiating Application filed by the father, the child M was spending no time with the mother. This was described by the mother, before the primary judge, in this way:[3]
[MS ELLWOOD]: It’s not my home, your Honour, that’s unsafe. I’ve lived a domestic violence situation for the last two years with this child. He has been encouraged and empowered to yell and to physically and emotionally abuse me and I can no longer have my eight-year old child witness the violence and I can no longer have my husband in a position where he is trying to protect me from a now 15-year old child. So I’ve said to my son, “I love you very much but you can’t come back here until you understand that this behaviour is wrong”.
[3] Transcript 11 February 2019, p.3 lines 11–17.
It may be interpolated here that both parents have re-partnered, the mother marrying Mr Ellwood and the father marrying Ms T. The mother has one child with her husband born in 2010. It is to that child and her current husband to whom the mother was referring in the quoted passage above.
The Initiating Application filed by the father on 19 October 2018 sought parenting orders to the following effect:
a)That the child S live with each party on a fortnightly rotation;
b)That the child M live with the father for 10 nights per fortnight and with the mother for four nights per fortnight;
c)Regulating the parents’ travel overseas with the children.
The father’s Initiating Application indicated that the applicant had obtained a certificate from a registered family dispute resolution practitioner. It indicated that the certificate is dated 7 April 2017 and a copy of that certificate is attached. However, that certificate was obtained prior to the mother filing her Contravention Application referred to, which proceedings culminated, as already noted, in final consent orders being made on 31 August 2017 (amended 1 September 2017). However, the relevant point is that the father’s Initiating Application was filed more than 12 months after the making of that order and the certificate dated 7 April 2017 was not a valid certificate within the terms of the relevant exception in s 60I (9)(c)(ii), as will be seen from the terms of that subsection as later quoted.
It can be seen that the orders sought by the father with respect to the child S reflected the reality of what was occurring in relation to her care. The orders sought by the father with respect to M were more problematic in the sense that M was electing not to spend any time at all with the mother and/or the mother was not amenable to M spending time in her household given the matters referred to in the above extract.
It must also be observed that the father’s Initiating Application seeking such orders was filed in the context that he had earlier faced a Contravention Application filed by the mother on 19 April 2017. Obviously enough, the father sought not to be subjected to any Contravention Application in circumstances where the operative orders were effectively not being followed.
After the mother filed her Application in a Case on 4 December 2018 seeking that the father’s Initiating Application be dismissed, the father filed, on 10 December 2018, an Amended Initiating Application and an affidavit specifically directed to the non-filing of a family dispute resolution certificate. In that affidavit, the father deposes to attempts he alleges were made to facilitate mediation with the mother and assertions that she “refused to be involved in the process, or to use a private mediator”. The mother disputes these assertions.
Failure to file valid s 60I certificate
Section 60I relevantly provides as follows:
60IAttending family dispute resolution before applying for Part VII order
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 dispute resolution before the Part VII order is applied for.
...
(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.
Note:When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).
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) 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)
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.
In relation to subsection (7), the Revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) (“Revised Explanatory Memorandum”) provides in paragraph 94 as follows:
94.Subsection 60I(7) is the key operational provision. It provides 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. This certificate must state that either: (a) as set out in paragraph 60I(8)(a), the applicant did not attend family dispute resolution due to the refusal or failure of the other party or parties to attend the process; or (b) as set out in paragraph 60I(8)(aa), the family dispute resolution practitioner considers, having regard to the matters prescribed by the Regulations, that it would not be appropriate to conduct the proposed family dispute resolution; or (c) as set out in paragraph 60I(8)(b), the applicant attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, at which they discussed and made a genuine effort to resolve the issue or issues to which the court application relates; or (d) as set out in paragraph 60I(8)(c), the applicant attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, but that the applicant, the other party or another of the parties did not make a genuine effort to resolve the issue or issues. For example, a party who sits through a mediation without making an effort to engage with the mediator or other party.
Determination of the primary judge
The primary judge did not deliver or publish reasons for judgment. The transcript of the proceedings must be taken to include any reasons of the primary judge for making the orders made and, more particularly, as containing any reasons for the primary judge not dismissing the father’s Initiating Application, as was sought by the mother by her Application in a Case.
Review of the transcript reveals that the mother squarely raised the lack of a s 60I certificate accompanying the father’s Initiating Application as the basis for the mother seeking dismissal. The mother submitted:[4]
HER HONOUR: … And, [Ms Ellwood] – sorry – you’ve asked for the father’s application to be dismissed.
[MS ELLWOOD]: Yes, your Honour. I submit that the application be struck out because it doesn’t comply with section 60I of the Family Law Act where the dispute resolution provisions impose a requirement for dispute resolution to be complied with before an application is made for a parenting order.
[4] Transcript 11 February 2019, p.2 lines 26–32.
What follows thereafter can be seen as the primary judge focusing on the pragmatics of the position where the subject operative orders were obviously not being followed and, in effect, both parties seemingly having acknowledged that alterations to the ordered arrangements would be necessary.
However, it cannot be said that the primary judge made any finding to the effect that s 60I(7) did not operate or that any exception in subsection (9) was made out. There was this exchange in the context of the primary judge proposing to amend the order with respect to the parties’ daughter spending two weeks with each parent as opposed to the week about provision in the order:[5]
HER HONOUR: Do you have any difficulty with me amending that order?
[MS ELLWOOD]: I don’t academically have a difficulty with you amending that order because she is nearly 17 and she is a good and kind and reasonable person and so I don’t – again, your Honour, if you can just indulge me. I don’t – it’s my belief that the applicant hasn’t met the subsection 9 provisions that warrant an exemption.
HER HONOUR: Can we get over the subsection 9 provisions. I mean, at the end of the day, let’s not talk academics. Let’s talk practical solutions.
[MS ELLWOOD]: Well, your Honour, I would say the practical solution is that this should have gone to family dispute resolution.
HER HONOUR: All right. This is what I’m going to do. I’m going to amend the order in relation to your daughter because I don’t see any reason why that shouldn’t be done. I’m going to get – just hang on a second. I’m – no, I’m actually not going to do that at the moment. I’m going to make an order for you to both attend at a child dispute conference. It doesn’t involve the children. It’s an opportunity for you to talk and see if you can resolve it and then I’m going to bring it back before me. So there’s your dispute resolution sorted and then it comes back before me. All right. 11 March at 9 o’clock to meet with a family consultant and 27 March back before me. Okay? Excellent. Thank you.
[5] Transcript 11 February 2019, p.4 lines 6–27.
Whilst the primary judge obviously focused upon what her Honour perceived as the practical reality of what was occurring with respect to the operative parenting orders not being followed, and the fact that the parties’ son was not seeing his mother, it cannot be seen on a review of the transcript that the primary judge actually engaged with the legal question squarely raised by the mother concerning s 60I.
It follows that the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application notwithstanding that that mandatory requirement had not been complied with.
It follows that the mother’s further challenge on appeal that the primary judge failed to provide adequate reasons is established. The primary judge gave no relevant reasons in relation to the operation of s 60I, but in the exchanges referred to, the primary judge seemingly was aware that it was necessary for an exception within the meaning of subsection (9) to be established, which it was not.
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).
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).
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.
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.
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.
It is thus strictly unnecessary to deal with the mother’s further complaints on appeal to the effect that the primary judge exhibited bias towards her or failed to afford the mother procedural fairness. All that need be said about these complaints is that upon review of the transcript there is no substance in the complaint of either actual bias (if that be the complaint) or apprehended bias. True it is that the primary judge did not accede to the mother’s argument, as the primary judge ought to have done, but that does not in and of itself establish apprehended bias and from review of the transcript, taken with the mother’s argument on the appeal, I am not persuaded that any complaint of bias on the part of the primary judge, whether actual or apprehended, has any substance whatsoever.
Likewise, I see no substance in the mother’s complaints to the effect that she was denied procedural fairness. The complaint is essentially that the mother was not afforded sufficient opportunity to refer to principle or authority in support of her argument. With respect to this argument, the legal point is a relatively narrow one and the mother was afforded a reasonable opportunity to articulate it, as she did. The problem lies not in the failure of the primary judge to comprehend the legal point the mother raised but in the primary judge’s failure to engage or deal with the legal point properly raised by the mother and as I have already recorded, the primary judge was in error in not so engaging. However, that does not in my judgment constitute any denial of procedural fairness to the mother.
Costs
Both parties were self-represented on the appeal. Given also the basis upon which the appeal succeeds, there would be no foundation for an order for costs under s 117 of the Act in any event.
The mother contends that she has had some expenses in the form of outlays with respect to the appeal. With respect to those expenses, it is legitimate, given that the appeal is allowed by reason of error of law, for the mother to be granted a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) with respect to her costs incurred on the appeal.
For these reasons I make the orders set out at the commencement of them.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 September 2019.
Associate:
Date: 6 September 2019
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