Martin and Harding

[2007] FamCA 1040

FAMILY COURT OF AUSTRALIA

MARTIN & HARDING [2007] FamCA 1040

FAMILY LAW – PRACTICE AND PROCEDURE - exemption for obtaining a Certificate of completing Family Dispute Resolution course

Family Law Act 1975 (Cth) s.60I(a), (d0 and (e)

APPLICANT: MR MARTIN

RESPONDENT: MS HARDING

FILE NUMBER: MLC 9503 of 2007

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JENKINS

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. THAT the requirement of the applicant father to file a Certificate of having undertaken and completed the Family Dispute Resolution Process be dispensed with pursuant to s.60I(9)(d) and (e) thereof.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to both practitioners.

3. THAT the application in a case filed by the father on 23 August 2007 be otherwise dismissed.

4. THAT the solicitors for the father ensure that a sealed copy of this Order be served upon the solicitors for the mother.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Martin and Harding

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9503 of 2007

MR MARTIN

Applicant

And

MS HARDING

Respondent

REASONS FOR EX PARTE JUDGMENT

1. The matter of Martin is before the court on an ex parte basis.  Ms Jenkins of counsel appears for the father.  What has occurred in this case is that the solicitors for the father have prepared on instructions an application that was intended to be filed seeking parenting and children's orders both on an interim and on a final basis.  That application was supported by an affidavit filed on 23 August 2007. 

2. The client services staff of the Family Court and thereafter Registrar Lethbridge have rejected the filing of the application on the grounds that a certificate confirming the attendance at a family dispute resolution conference was not filed in accordance with section 60I of the Family Law Act 1975 ("the Act"), such section having been introduced by Act No. 46 of 2006.

3. The background affidavit of the father states that he and the mother have not married but have been in a relationship for more than 10 years.  There are two children, now aged 9 and 5.  Separation occurred in March of this year when the parties were living in New Zealand.  The mother then returned with the children to Melbourne and now lives in a southern suburb.  The father is a professional sportsperson and is now living and contractually based in Townsville with his … career. 

4. The events since separation are briefly touched upon in that affidavit and there are clearly developing accusations being made by each of the adults against the other.  The father has spent limited time with the children and alleges a refusal of contact periods on an ongoing basis and now indeed deposes to the court that telephone contact has been stopped.  I carefully make no findings on any matters of fact on this interim hearing and in the absence of the mother or any material from the mother.

5. In that initiating affidavit the father sought to be excused from complying with section 60I(7) of the Act, given he was then living in New Zealand and soon to move to Townsville. With that background, the Registrar declined to issue that application and accordingly the solicitors for the father have now issued a further application seeking an abridgment of time and a direction that the court accept the application, notwithstanding a failure to fully and wholly comply with the provisions of section 60I of the Act.

6. In support of this procedural application an affidavit is filed by a solicitor, Mr McDonald.  That affidavit in paragraph 13 sets out at least some of the grounds that would be relied upon and primarily stresses the urgency of the circumstances, in that the separation is now of many months' duration and there is limited time spent or other physical or oral contact or discussion between the father and children.

7. It does seem that there are continuing developments which have significantly raised the temperature of this case including allegations of rape, a referral to Department of Human Services that may or may not be appropriate and otherwise an alleged ongoing refusal to make any appropriate arrangements that otherwise might ordinarily have been understood to be in the best interests of the children to maintain a relationship with both of their parents.

8. The single issue, however, before me on an ex parte basis is whether the father can and should have leave to file his application without strict compliance with section 60I of the Act. The object of the section is to ensure that all persons who have a dispute make a genuine effort to resolve that dispute by family dispute resolution before any order is sought from the court. That is a mandatory provision and it must be complied with pursuant to the provisions of subsection (2) thereof.

9. The requirement of subsection (7) is that, subject to subsection (9), the court exercising jurisdiction under this Act must not hear an application under Part VII in relation to a child unless the applicant files in the court a certificate given by a family dispute resolution practitioner.  That certificate must then be filed with the court.  The circumstances of the granting of such certificates are described in subsection (8) and the exceptions to the granting of such certificates are identified in subsection (9).

10. The applicable grounds of exception would seem to be either urgency, as provided for in sub-section (9)(d) thereof or otherwise in sub-section (9)(e) wherein it is specified that if one of the parties to the proceedings is unable to participate effectively in family dispute resolution, because of physical remoteness from the dispute resolution services or for some other reason.

11. I understand from the submissions of counsel in this case that there has been one telephone discussion, which was wholly unsuccessful.  The ongoing procedure involves further appointments over extended periods and the father is committed to his profession in Townsville or in travelling the country.  I am advised that he would visit Melbourne with some regularity on business but that may not fit in with any available appointment.

12. The court clearly has a discretion in appropriate cases and having regard to the best interests of children to grant an exemption to the obtaining of a certificate.  I have balanced the reasons in the affidavit with what is required, and in particular with the mandatory nature of the process.  Given the physical distance between Townsville and Melbourne, the difficulty to operate by telephone, the uncertainty of when the father will be in Melbourne and generally the urgency because the children do not have the benefit of any time spent with their father, I propose to exercise my discretion pursuant to sub-section (d) (d) and (e) to grant an exemption to the obtaining of the otherwise required certificate on the particular facts of this case.

13. Insofar as the application then requests further orders abridging time for the urgent hearing of the application, I do not propose to make those orders. That matter can be assessed by the Registrar and this application, that is the father's primary application seeking interim orders, can be given an appropriate return date.  I would emphasise it should be a date when the father is able to be in attendance at court. 

14. For those reasons therefore I would propose that the requirement of the father to file a certificate having completed the family dispute resolution process be dispensed with and that his solicitors be permitted to file his initiating application for interim orders.  The matter be thereafter allocated a court hearing date on a first return basis, subject of course to proper and effective service upon the mother. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 7 September 2007