In the 2019 Family Court decision of Ellwood v Ravenhill, the court decided an application by the mother in a parenting matter where orders had been made in respect of two children aged 15 and 17 on the application of the father. The father had made the application without fulfilling the requirements of Section 601, under which parties must try to resolve their dispute through alternative dispute resolution before initiating court proceedings.
Section 601 of the Family Law Act states that the court must not hear an application in relation to children unless the party making the application has filed a certificate from a family dispute resolution practitioner.
The provision makes an exception to this requirement in the following circumstances:
- Where the proposed orders are to be made by consent between the parties;
- Where the court is satisfied that there has been abuse of the child by one of the parties;
- Where the court is satisfied that there has been, or there is a risk of, family violence by one of the parties towards the other;
- Where the application is made in relation to a particular issue about which an order has been made in the last 12 months and a party has contravened the order in a way that shows serious disregard for their obligations OR the situation is urgent.
The parties in Ellwood v Ravenhill had been in a relationship from 1999 to 2008. In 2008, they obtained parenting orders by consent stating that they would have equal shared parental responsibility of the two children and that the children would live part of the time with each parent.
Over time, the care arrangements for the children changed informally, with the daughter spending a fortnight with one parent, followed by a fortnight with the other and the son spending no time with the mother. This was because the son had started behaving violently towards the mother and neither the son nor the mother wanted to spend time living together any longer.
In 2018, the father made an application seeking orders that the daughter spend equal time with each parent (as she already was doing). He also sought that the son live with the father for 10 nights, followed by 4 nights with the mother (contrary to the wishes of both the son and the mother).
The mother sought to have the father’s application dismissed on the basis of non-compliance with the mediation requirement. The father claimed mediation had been attempted (which the mother denied).
The court made interim orders, including an order that the parties attend an appointment with a family consultant. The mother appealed, arguing the court lacked jurisdiction because the requirements of Section 601 had not been fulfilled. She sought orders that the interim orders be set aside and the father’s application dismissed.
The decision on appeal
Justice Keane found that Section 601(7) is expressed in mandatory terms and does not give rise to a discretion. This means that unless one of the exceptions applies, the court may not accept an application for orders from a party who has not provided a Section 601 certificate. The primary judge did not make a finding that any of the exceptions under Section 601 was made out or that the requirement to attempt mediation did not apply. The primary judge was in error in proceeding to hear the application without having made such a finding.
The court rejected the mother’s argument that the court had lacked jurisdiction to hear the matter. However, it found that the decision as made in error (failing to apply Section 601). The court set aside the orders, dismissed the father’s application and granted a costs certificate to the mother.
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