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Section 60i certificates -- case law

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Family Law procedure -- section 60i certificates -- compulsory family dispute resolution -- registry error

Hello everyone,

This is my first post.

Does anyone know of any caselaw that covers discretion of judges to be able to hear matters without a section 60i certificate AND without an exemption.

Issue:
  1. the Registry accepted an Application in that did not have a current section 60i certificate
  2. the application did not have an accompanying Affidavit - non filing of family dispute resolution certificate.
  3. the respondent raised this is their response via an application in a case to strike out the application.
  4. the Applicant filed the non-filing affidavit, stating they didn't think mediation would succeed.
  5. The registry did not consider the non-filing affidavit.
  6. At the hearing, the judge heard the matter, stating she had discretion to hear matters without a dispute resolution certificate in the best interests of the child; that striking out would mean the parties would be back at court in six months; and that she "didn't care" what the legislation provided for. Ordered parties to CDC and return to her in a month.
Seems to be a clear error of law as Section 60i is mandatory and not discretionary unless the exceptions in subsection 9 (family violence etc) are met. Section 60i is clear that: Subject to subsection (9), a court exercising 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.

But what happens when the registry accepts the application in error and the court then hears the matter?

I would really appreciate if anyone knows any case law that applies. I have searched without luck -- perhaps this has not ever happened?

Thanks in advance everyone!!





Last edit: by melissae

Under the Family Court Rules 2004, Chapter 1, Part 1.3, Rules 1.12,
1.12 Court may dispense with Rules
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3) In considering whether to make an order under this rule, the court may consider:
(a) the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
© whether the application has been promptly made;
(d) whether non-compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.

To answer your question, the court can dispense with any rules, including the pre-filing requirement of a s60i. This often happens in urgent applications.

Additionally in the Federal Circuit Rules r1.05(2) "However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules, the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016, in whole or in part and modified or dispensed with, as necessary."
Any matter can be put forward for consideration on its merits, for example, a relocation matter where a parent cannot get to see the children because one parent has unilaterally relocated.

This did not appear to be an interim hearing but a directions hearing. The Judicial Officer has directed the parties to attend a child inclusive conference to try and make some progress. Think yourself lucky you don't have a court-appointed ICL and an external family report that you have to pay half for both. Find around 10-18k for the 'Family Report' and up to 40 k each for an ICL in a lengthy matter.

Executive Secretary - Shared Parenting Council of Australia
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Thank you.
The matter wasn't urgent and the Registry accepts it was filed in error. Should this make a difference?
It is unlikely the “filing error” would have any impact upon proceedings.
However, if you genuinely believe this matter can be resolved through mediation and consent orders, a party is at liberty to seek orders that parties attend mediation under s13C of the Family Law Act. Alternatively the court may make this order on its own initiative.

13C Court may refer parties to family counselling, family dispute resolution and other family services
(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
© that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
 
What are you actually trying to achieve by getting this dismissed and thinking like this?
If it is trying to brush whatever was filed under the carpet or get it ignored you are wasting your time

You would do much better of focusing on your argument to win whatever has been filed
FIling errors happen ALL THE TIME and if a judge gives leeway to rectify that, then it is OVER

Move on to your argument and stop wasting your time and effort on something that will only wind up the judge and cause you brain ache

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you…. Purple Monkey Dishwasher
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