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.
the Registry accepted an Application in that did not have a current section 60i certificate
the application did not have an accompanying Affidavit - non filing of family dispute resolution certificate.
the respondent raised this is their response via an application in a case to strike out the application.
the Applicant filed the non-filing affidavit, stating they didn't think mediation would succeed.
The registry did not consider the non-filing affidavit.
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?