On 6 September 2019 the Full Court of the Family Court of Australia delivered its judgment in the matter of Ellwood & Ravenhill [2019] FamCAFC 153.

The relevant factual background was as follows:

  • Mr Ravenhill (the father) commenced co-habitation with Ms Ellwood (the mother) on 1 June 1999 and they married on 2 February 2001.
  • Their daughter was born in 2002 and their son was born in 2003.
  • The parents separated on 16 January 2008 and entered into parenting orders regarding parenting arrangements on 26 November 2008.
  • The initial arrangement was that the children were to live with the mother from Saturday until Wednesday and with the father from Wednesday until Saturday until 2009 when the children would then commence to live with each parent on a week about basis.
  • Over time, the parenting arrangements changed informally, but immediately prior to the father filing an Initiating Application on 19 October 2018, the son was spending no time with the mother.
  • The father did not file a certificate issued by a Family Dispute Resolution Practitioner with his Initiating Application.
  • The mother filed an Application on 4 December 2018 seeking orders that the father’s Initiating Application be dismissed on the basis that the father has not complied with section 60I of the Family Law Act 1975 (Cth) (Act) in that he had not complied with the requirement to attend family dispute resolution before applying for an order under Part VII of the Act.
  • The primary judge proceeded to hear the father’s application and made orders, without making any findings to the effect that any of the exceptions in subsection 60I (9) of the Act applied.

Section 60I of the Act provides relevantly provides that:

(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

(7) Subject to subsection (9) a court exercising jurisdiction 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 by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

The mother’s appeal against the orders made by the primary judge was successful and the father’s Initiating Application was dismissed on the basis that the father had not complied with the mandatory requirements of subsection 60I(7) of the Act and no exception existed within the meaning of subsection 60I(9) of the Act.