WIFE OBJECTS TO PARENTING HEARING SAYING NO 60i, HUSBAND SAYS AH C'MON EVEN MY SOLICITOR SAYS I DON'T NEED A 60i CERTIFICATE

Bellini & Bellini [2021] FCCA 271  (18 February 2021)

This is a proceeding where the Husband’s Response seeks to introduce parenting orders. The wife contends that the Court cannot proceed to hear the Husband’s application for parenting orders without a section 60I Certificate (which certifies that parties have attended family dispute resolution).

Facts:

The Applicant Wife Ms Bellini (Wife) filed an Initiating Application in which she sought property orders. The Husband Mr Bellini (Husband) filed a Response in which he sought both property orders and leave to seek parenting orders in relation to the parties’ children X born in 2004 (X) and Y born in 2007 (Y) (together, the  Children).

The Husband’s Solicitor sought leave to commence proceedings relating to parenting matters and interim parenting orders. The Wife’s Solicitor however contended that the parenting proceeding should be dismissed as the Husband had not obtained a Section 60I Certificate.

The husband’s solicitor submits that the filing of a Section 60i Certificate is not a necessary condition of the Court’s jurisdiction. As a result, the Solicitor for the Husband then submitted that the court should proceed to make interim parenting orders notwithstanding the Husband’s failure to file a Section 60i Certificate.

Issue: Should the court proceed to hear parenting orders sought by the husband notwithstanding his failure to file for a certificate under S.60i?

Law:

• Family Law Act 1975 S.60 (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 resolution before the  Part VII  order is applied for.
• (7)- acourt  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)
• (9)-Exceptions

Analysis:

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 emphasize 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.

None of the exceptions in sub-S.60i(9) of the Act apply in this case and in the circumstances sub-S.60i(7) of the Act applies. The Husband must therefore file a  Section 60i Certificate provided by a family dispute resolution practitioner under sub-S.60i(8) of the Act before the Court will hear the Husband’s application for Part VII interim and final parenting orders. The Part VII  application in the Response for interim and final orders will be stayed until such time as a Section 60i Certificate is filed.

Conclusion: The application for interim and final parenting orders pursuant to Part VII of the  Family Law Act 1975 as sought be stayed until such time as the Husband files a Section 60i Certificate as required by sub-S.60i(7) of the Act, to be given to the Husband by a family dispute resolution practitioner.

#parenting