October 17, 2019 by Todd
Ordinarily, parties to a family law parenting dispute are required to try mediation before they go to Court. The mediator may issue the parties with a section 60I certificate after that happens. There are, however, exceptions to that rule, including where an application is made in circumstances of urgency. A recent decision from Judge Terry in the Federal Circuit Court at Newcastle illustrates what the Court looks for when deciding whether an application is made in circumstances of urgency.
In the case, the father filed an application for parenting orders after the mother had relocated with the child 2.5 hours north of the home the parties had previously shared to live in the same suburb as her parents. He sought permission to file his application even though he did not have a section 60I certificate. The Registrar refused his application, and he sought a review of the Registrar’s decision before Judge Terry.
Judge Terry noted the policy considerations behind requiring parties to attend mediation before going to Court. She then identified the following circumstances as examples of where urgency may be established:
- Cases involving family violence, drug use or alcohol abuse;
- Where a party has a serious mental illness such as a personality disorder;
- Where a party has an unrealistic expectation about outcomes (for example, seeking an equal time for a young child);
- Where a party has an ulterior motive for proposing no time.
In relation to relocation cases specifically, Her Honour identified the following circumstances as examples of cases where urgency may be established:
- Where one parent disappears;
- Where there are risk of harm concerns about the relocating parent or the new partner of the relocating parent;
- Where the relocation involves a parent removing children from the care of the parent with whom they have been living for some time;
- Where the relocating parent has given a clear indication that they intend never to return to the former area;
- Where the children have been taken a great distance away and no time has been facilitated since the relocation.
In the case at hand, Her Honour decided that urgency had not been established for the following reasons:
- The parties were communicating;
- The mother had facilitated some time and Skype communication between the child and the father post-relocation;
- The father had not led any evidence about the delays in organising mediation;
- The father had not led evidence about making an offer of settlement along the lines of his proposal to the Court (which included an order allowing the mother to live in the former matrimonial home) or about whether he had asked the mother whether she had moved temporarily (as she had done before) or whether she intended not to return;
- None of the risk factors identified above had been proven.
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