MCGLENNAN & DON

[2011] FamCA 204

FAMILY COURT OF AUSTRALIA

MCGLENNAN & DON [2011] FamCA 204

FAMILY LAW - PRACTICE AND PROCEDURE – application by the father seeking an adjournment of contravention proceedings – whether the parties are exempted from complying with section 60I requiring participation in family dispute resolution – where there has been a history of family violence – where it was held that the parties were exempt from compliance – whether the Court should adjourn the matter for the parties to attend family dispute resolution – where the Court was not satisfied it was appropriate in the circumstances to delay the hearing further – application dismissed.

Family Law Act 1975 (Cth) s 60I
Family Law Regulations 1984 (Cth) reg 12CAB
Family Law Rules 2004 (Cth) rr 1.04, 1.05 & 1.09

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

APPLICANT: Mr McGlennan

RESPONDENT: Ms Don

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 21 March 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 21 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Donnell

SOLICITOR FOR THE APPLICANT: Halfpennys

COUNSEL FOR THE RESPONDENT: Ms McLaren

SOLICITOR FOR THE RESPONDENT: Asha McLaren

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elliot

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Elliotts Barristers & Solicitors

Orders

1. The Court refuses the adjournment for any lengthy period and re-list the matter to resume before me at 11.00 am on Tuesday 22 March 2011.

UPON NOTING because of the father’s difficulty in attending Court after 3.00 pm each day this week, the Court sittings will be:

(a)Tuesday – 11.00 am to 3.00 pm

(b)Wednesday – 9.00 am to 3.00 pm

(c)Thursday – 10.00 am to 3.00 pm

(d)Friday – 10.00 am to 3.00 pm

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 148 of 2009

Mr McGlennan

Applicant

And

Ms Don

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am dealing with the application by the father for an adjournment of the trial of the contravention proceedings, which were filed by the mother in November 2010. 

2. The father seeks an adjournment on several bases.  In order of the submissions put by counsel, the first was that the father was not ready to proceed because his own affidavit in response to the mother’s allegations had been compiled and served late.  Counsel was clear in saying that they had no adequate reason to explain the lateness of the affidavit and why they might otherwise not be ready, save and except for the other matters which were put to the Court as the basis for the adjournment. 

3. The next ground was the fact that family dispute resolution conference had been ordered by the Court last year, and is now fixed for 5 April 2011. 

4. I am told from the bar table that the parties had taken all necessary steps and they were not to blame for the obviously lengthy period which had passed since the direction to attend Family Dispute Conference. 

5. The Independent Children’s Lawyer’s counsel also drew attention to the fact that the conference which was now proposed by Family Relationships Australia would be one which involved co-mediators, and not one mediator, and that the circumstances in relation to the current proceedings needed to be taken into account when considering the wisdom of adjourning the matter, or whether it was appropriate to adjourn the matter. 

6. The primary provisions which the Court needs to consider are the provisions of section 60I of the Family Law Act 1975 (Cth):

Section 60I

Attending 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.
Phase 1 (from commencement to 30 June 2007)
             (2)  The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order.
             (3)  By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.
             (4)  Subsection (3) applies to an application for a parenting order if the application is made:
   (a)  on or after the commencement of this section; and
   (b)  before 1 July 2007.
Phase 2 (from 1 July 2007 to 30 June 2008)
             (5)  Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if:
   (a)  the application is made on or after 1 July 2007 and before 1 July 2008; and
   (b)  none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in relation to the child.
Phase 3 (from 1 July 2008)
             (6)  Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after 1 July 2008.
Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order
             (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.

1. Significantly, subsections (7), (9), (10), (11), and (12) of section 60I should be considered. It is also necessary to consider the interaction of those provisions of section 60I with the provisions of the Rules, in particular, rule 1.04, 1.05, and 1.09, and the forms which are applicable to applications for contraventions.

2. Obviously sections of the Act override any provisions of the rules or forms, if there is any discrepancy between them. 

3. There is no reference to section 60I in the contravention application form or the requirement for family dispute resolution, although there are specific references to section 60I and the family dispute resolution in the Initiating Application form. The provisions of section 60I apply not only to Initiating Applications, but to all applications under Part VII.

4. I also take into account as required by section 60I subsection (9)(f):

   “Other circumstances specified in the regulations are satisfied.”

5. Counsel for the father located Regulation 12CAB, which states:

   Regulation 12CAB

   Other circumstances in which court may hear application for Part VII order (Act s 60I (9) (f))

   For paragraph 60I (9) (f) of the Act, the circumstance that an application has been made to the court for any other order in proceedings in which a certificate under subsection 60I (8) of the Act has been filed is specified.

6. After standing the matter down for counsel to consider matters raised by the Court, the matter resumed.  Counsel for the mother produced exhibit 1, which is an exhibit written by the mother indicating that on 10 March 2010 she attended Relationships Australia and spoke to a Ms C, who is head of the Family Resolution Centre and a Family Dispute Resolution practitioner.  Exhibit 1 states that the conversation included her options in accordance with the provisions of section 60J of the Act. 

7. I received that document and marked it as exhibit 1, albeit over the objections of counsel for the father.  I am prepared to accept, on the face of it, the qualifications of the person named in the exhibit, as a person qualified as required within the provisions of section 60J. 

8. The delay in filing the father’s affidavit is not an adequate ground to accede to a request by the father to adjourn the proceedings out of this week’s list.  He was not required to file a response to the application for resolution, but was at liberty to do so.  The order that was made directed him to file it before today, but he is not disadvantaged in any way by the delay in filing the affidavit.  He has been aware of the mother’s allegations, in relation to the alleged contraventions for a considerable period of time.  It is possible to give the mother an adequate opportunity to consider her position and give her legal representatives instructions, without adjourning the matter for a considerable period of time. 

9. The fact that no outlines have been received in accordance with the Court’s directions (other than that the mother sent to the other parties a case outline late on Friday afternoon) again does not establish an adequate basis to adjourn the proceedings.  The outlines were in fact only matters of procedure for the Court’s assistance.  The mother is the person who bears the responsibility of producing the evidence to satisfy the Court that the contraventions have taken place. The allegations of, and dates of the contravention, and the material surrounding those contraventions, have been available to the father and his legal advisors since those proceedings were lodged in November 2010.

10. The provisions of section 60I, however, require careful consideration. This section has occupied a considerable part of the Court’s attention today in considering the application before the Court.

11. Section 60I refers clearly in subsection (7) to the fact that a Court exercising jurisdiction under this Act must not hear an application for a Part VII order unless the applicant has filed a certificate, but that is subject to the provisions of subsection (9).

12. Subsection (9) however, refers to the exceptions and sets them out in some detail through subsections (a) to (f). The subsections of subsection (9), (a), (d), and (e), are not applicable in this matter. The matters which need to be considered are the provisions of section 60I(9)(b), (c), and (f).

13. In relation to subsection 60I(9)(c), the provisions require all of the following conditions to be satisfied.  The application needs to be made in relation to a particular issue, and a Part VII order has been made in relation to that issue within the period of 12 months before the application is made. 

14. Notwithstanding the difficult phrasing of those provisions, I am satisfied that section 60I subsection (9)(c)(i) and (ii) apply, and subsection (9)(c)(iii) applies because it is an application in relation to a contravention of the order by a person.

15. However, the fourth criteria is that 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. 

16. It is difficult for a Court to be satisfied that there are reasonable grounds to believe something when the Court is not able to hear the application as set out in subsection (7).  The interaction of subsection (7) and subsection (9)(c)(iv), are more than complex.  I am however not satisfied that there are reasonable grounds to believe that a person (in this case presumably the father) has shown a serious disregard for his obligations under the order, because I have not had the advantage of hearing the evidence and having it tested in a way that would enable the Court to be satisfied one way or the other. 

17. Subsection (f) refers to the regulation to which counsel for the father referred me;  Regulation 12CAB.  This refers to circumstances that an application has been made to the Court for any other order in the proceedings, in which a certificate under subsection 60I(8) of the Act has been filed.  Counsel for the parties were unable to refer me to any such certificate being filed in any of these proceedings since they first commenced between the parties in 2009. 

18. The complexity of the subsection (f) referring to the regulations and the phrasing of the regulation, again creates difficulties of interpretation. It appears that no one is able to direct me to any such certificate in these proceedings, notwithstanding the proceedings having been on foot for some time, and significant orders having been made in these proceedings. It may well be the proceedings which were filed have on other occasions fallen within other parts of section 60I and the exceptions to the requirement to file a certificate.

19. Section 60I(9)(b)(iii), was relied upon by counsel for the mother and in particular the Independent Children’s Lawyer. That provides that there is an exception to subsection (7), and subsection (7) does not apply to an application for a Part VII order in relation to a child, if the Court is satisfied there are reasonable grounds to believe that there has been family violence by one of the parties to the proceedings.

20. Counsel for the father asked the Court to interpret those provisions on the basis that there had to be an allegation of family violence in the particular proceedings, being the contravention applications. Considering the definition of “proceedings” in section 4 of the Family Law Act, and the provisions of section 60I, I am not satisfied that the requirement has to be restricted to these current contravention proceedings, but rather that the condition can be satisfied by family violence in an earlier part to the proceedings.

21. I have been referred to and take into account the decision of Justice Burr on 3 June 2010.  His  Honour’s judgment deals specifically with issues of family violence.  In particular, commencing in paragraph 111 of his judgment, he deals with the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.  He continues in numerous paragraphs thereafter, to deal with allegations of family violence both by the father and the mother in these proceedings.  There is also a heading “Violence”.

22. The Independent Children’s Lawyer’s counsel directed my attention to paragraph 136.  I have taken into account those matters referred to by his Honour in paragraphs 135 through to 137, which all deal with the question of family violence. 

23. On that basis, therefore, I am satisfied there are reasonable grounds to believe that there has been family violence by one of the parties to the proceedings. 

1. The exemption arises to the extent that subsection (7) does not apply to these proceedings. It is appropriate therefore to refuse the adjournment on that basis, save and except consideration must therefore be given to the provisions of section 60I(10), which states:

   “If 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.”

2. The reference to subsection (10) needs to be considered in the light of the nature of the relationship between the parties, as referred to in his Justice Burr’s judgment. The provisions of subsections (6) and (10), the rest of the provisions of section 60I, and the orders made by this Court in these particular proceedings for family dispute resolution conference to take place, tend to suggest that it would be the preferred situation for the family dispute resolution conference to take place, rather than for the proceedings to continue at this stage.

3. I have however also weighed up carefully the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In that decision the High Court gave careful consideration to applications for adjournment and the provisions of the law, interpreted Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. In the High Court’s judgment, the High Court said at paragraph 98:

   “Of course, of just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated.  Speed and efficiency in the sense of minimum delay and expense are seen as essential to a just resolution of proceedings.  This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading when delay and costs are taken into account.  The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution.  It cannot therefore be said that a just resolution requires that a party be permitted to raise and argue a case at any point in the proceedings, on payment of costs.”

4. That of course referred to proceedings which can be clearly contrasted from proceedings which relate to children and which involve family violence;  and the emphasis in the Family Law proceedings upon dispute resolution, rather than ongoing litigation. 

5. I am therefore being required to weigh carefully the principles of the Family Law Act and Rules which deal with matters concerning family violence, the preference for the parties to resolve their difficulties without litigation and resolve them by way of dispute resolution outside of the Court process, and at the same time weigh up the benefit to the parties and to the child for litigation to cease as soon as possible, whilst at the same time maintaining principles of justice and equity for all of the parties.

6. Taking into account all of those matters and the submissions which I have received, I am satisfied that delaying the matter for Family Dispute Resolution before the Family Relationships Australia, is not, in the present circumstances likely to achieve a resolution of the outstanding contravention applications, bearing in mind the history of the matter and the issues raised by and determined by Justice Burr’s judgment of June 2010. 

7. I have considered all of those matters, and on that basis, the adjournment for any lengthy period is refused , but will relist the matter to resume before me at 11.00 am tomorrow morning. 

8. On the basis that the father has prepared his affidavit, setting out his evidence in chief, the matter can still be determined in the four days which will remain available to the Court to hear the evidence of the mother, and to determine if the evidence of the mother has established the alleged contraventions she has maintained.  This will also give the mother, Independent Children’s Lawyer, and father an opportunity to consider carefully all of the issues to be put before the Court in relation to the alleged contraventions, and to be ready to proceed before me at 11.00 am.

9. I therefore adjourn the trial of the contravention application to 11.00 am tomorrow.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 March 2011.

Associate: 

Date:  30 March 2011