Conlon and Conlon (2019) FCCA 2195 (13 August 2019)

Conlon and Conlon (2019) FCCA 2195 (13 August 2019) provides a discussion of the grant of a s 60I exemption.

In July 2019, the husband filed orders in relation to a child. He did not file a s 60I Certificate and he asked that time limits and rules be abridged and/or dispensed with to bring the matter on, on an urgent basis.

The solicitors had provided a letter to the court pointing out paragraphs of the husband’s affidavit and informed the court the mother had unilaterally relocated a child’s residence which was a 2½ hour drive North of the parent’s home.  The child was 5 months old.  

The Registrar declined to list the documents and refused a s 60I exemption and refused leave for short service.

As the Registrar was not obligated to provide reasons, no reasons were given.

The court has the power to review a decision made by a Registrar as it is a delegated power.

The father filed an application for a review of the Registrar’s decision. The court referred to the fact that r 20.03 of the Federal Circuit Court Rules meant that the review had to be by way of a hearing de novo.

In the context of the judgment, the court commented at paragraph 25:

The father gave no evidence about having sought any mediation to resolve the parenting issues. When I asked the father’s solicitor why, he replied to the effect of “˜Do you have any idea how long that takes?’

The court said:

The answer is “˜No, I don’t’, and the father gave no evidence about it in his affidavit’.

The court then went on, beginning at paragraph 27 to engage in a discussion of s 60I.

At paragraph 33, the court said:

Absent the unilateral relocation, the case described by the father is the kind of case where the parents should be making a genuine effort to resolve their dispute before coming to court.

The court considered the issue of urgency and whether the requirement for the s 60I was appropriate in this case. 

The court said, from paragraph 39, in summarising:

The father and the mother are communicating. The father has seen the child face to face at least once and the mother has sent him photos and has arranged for him to see the child via Skype.  It is not clear on the father’s material that no resolution is possible outside the court system, for example by the father allowing the mother to return to the home. I am not satisfied that circumstances of urgency are made out and I intend to dismiss the Application for Review.

Earlier, the court had said this at paragraphs 37 and 38:

Every case of unilateral relocation is different and there are many which would justify an exemption on the basis of urgency. They may involve a parent who disappears, potential risk of harm to children because of concerns about the relocating parent or a new partner of the relocating parent, a relocation which involves a parent also removing children from the care of the parent with whom they have been living for some time or evidence that the relocating parent has given a clear indication that they intend never to return to the former area. The fact that children have been taken a great distance away and that no time has been facilitated since the relocation may be another factor justifying the case being treated as urgent.

However the court must be mindful in every case of the object of s 60I, the benefit of creating space for parties to talk about their parenting matter before the ill-will so often caused by allegations and counter-allegations takes hold and the need to relieve pressure on court resources.

In this case, because of the gaps in the husband’s evidence, he was unable to establish that the need for the benefit of creating space for the parties to talk about their parenting matter outweighed urgency.

It was clearly not enough to simply say there’d been a relocation.