The importance of complying with section 60I has been highlighted in a recent Court of Appeal decision which resulted in a Father’s application being dismissed and a costs Order being made for failing to apply Section 60I.
In the matter of Ellwood, the Applicant father made an application seeking a change to parenting orders made by consent between the parties in 2008. The Respondent mother sought that the father’s application be dismissed based on non-compliance with the requirement of producing a Section 60I Certificate. The father claimed mediation had been attempted, which the mother denied, and it was noted that the father could not produce a certificate. Despite non-compliance with section 60I the Court made interim orders, including that the parties attend an appointment with a family consultant. The mother appealed, arguing the Court lacked jurisdiction because the requirements of Section 60I had not been fulfilled and sought that the Application be dismissed on this basis.
On appeal the Court found that Section 60I(7) does not give rise to a discretion. This means the Court may not accept an application for orders from a party who has not provided a Section 60I Certificate, unless an exemption applies. It was found that the primary Judge was in error in proceeding to hear the application and as a result, the orders made were set aside, the father’s application was dismissed, and a costs certificate was granted to the mother.
If you are looking to commence court proceedings concerning parenting matters, contact Macrossan & Amiet to discuss Section 60I and how it would apply to your circumstances.
