Keehan and Keehan - [2018] FamCAFC 79

FAMILY COURT OF AUSTRALIA

KEEHAN & KEEHAN

[2018] FamCAFC 79

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the application was heard undefended – Where the primary judge made orders in relation to a contravention application filed by the mother – Where the primary judge also made final parenting orders – Where the gravamen of the mother’s appeal related to the parenting orders – Where the mother sought to abandon the grounds related to the contravention application and focus on the parenting orders – Where the child the subject of the proceedings was nearly 17 years old – Where the mother’s central assertion was a lack of procedural fairness arising from her case in respect of the parenting orders not being properly heard – Where the circumstances justified the expedition of the appeal – Application allowed on the condition that the mother file an Amended Notice of Appeal within 14 days.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Keehan

RESPONDENT:

Mr Keehan

FILE NUMBER:

BRC

3094

2013

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

19 April 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

19 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 February 2018

LOWER COURT MNC:

Transcript dated 14 February 2018 from the Reasons on appeal

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

No appearance

Orders

The applicant file an Amended Notice of Appeal, confining the appeal to a challenge to paragraphs 7, 8, 9 and 10 of the orders made by Judge L. Turner on 14 February 2018, within fourteen (14) days of the date of these orders.
Upon the filing of that Amended Notice of Appeal the Application in an Appeal filed on 14 March 2018 seeking expedition of the appeal be allowed.
Each party bear their own costs of and incidental to the Application in an Appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keehan & Keehan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 22 of 2018
File Number: BRC 3094 of 2013

Ms Keehan

Applicant

And

Mr Keehan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT[1]

[1]Citations, quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.

The mother filed an application seeking to expedite the hearing of an appeal against orders made by Judge L. Turner on 14 February 2018. Those orders can be seen to comprise two parts. The first relate to a series of orders made in respect of a contravention application filed by the mother in respect of the father’s asserted non-compliance with parenting orders earlier made by her Honour. The second relate to orders which dismissed previous parenting orders and ordered in lieu that the father have sole parental responsibility of the child, the child live with the father and “spend time with the mother in accordance with [the child’s] wishes”.
I should mention that the mother represents herself before me this morning and, it seems, prepared all of her own material.
The parenting orders to which the contravention application relate were made on 4 July 2014 and 13 May 2014. At that time the child, C, was aged nearly 13 years. She will be 17 years old in a couple of months.
The respondent father does not appear. As I have earlier indicated on the record, he forwarded correspondence to the Appeal Registry on 28 March 2018 which said as follows:
Good morning regarding [Ms Keehan’s] appeal,i am not opposing the application.
i do not propose to file a response, affidavit or submissions. I also do not object to the application being determined in the absence of the parties, regards [Mr Keehan]
(As per original)
As that correspondence foreshadows, [Mr Keehan] did not appear this morning. As a formality I required his name to be called three times and it was confirmed that there was no appearance.
The matter was heard by me this morning sitting as a single judge in accordance with s 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”).
By way of very short background, these proceedings have been in the Court for almost five years, since April 2013.
As I have said, final parenting orders were made on 4 July 2014. Those orders were to be read in conjunction with earlier parenting orders made on 13 May 2014. In broad compass those orders provided for:
a)equal shared parental responsibility of two children;
b)the children spending weekly overnight time with the father culminating in seven days per fortnight; and
c)the children spending prescribed periods with each parent over the school holidays and on special occasions (for example, birthdays and Christmas).
On 15 November 2015, orders were made by Judge L. Turner suspending the operation of the 4 July 2014 orders as they related to the eldest child and ordering in lieu that the child “spend time with the mother at all such times as may be requested by the child”. The child the subject of the instant proceedings is the younger of the two children.
The mother has filed two contravention applications in the proceedings. The first was discontinued on 8 July 2016. The second application was filed on 23 February 2017 and that was the subject of the proceedings before her Honour on 14 February 2018.[2]
[2]The mother sought to amend that application on 9 February 2018. Leave was refused by her Honour.
The application contained 28 counts comprising various allegations that the father: denigrated the mother in front of the children, failed to consult the mother about issues affecting the children, did not utilise Family Dispute Resolution during occasions of disagreement, failed to facilitate time during the holidays, special occasions and school term and failed to facilitate communication between the children and their mother.
Her Honour found the husband guilty but with reasonable excuse in relation to 12 of those counts and imposed no penalty. Her Honour found the father was guilty in relation to eight counts and a penalty was imposed for the father to pay the mother $100. The remaining counts were dismissed. Significantly for the events which transpired before me this morning, her Honour also ordered as follows:
7.That the final parenting Orders made on 4 July 2014 in respect of the child … are hereby dismissed.
8.That the child … live with the father.
9.That the father have sole parental responsibility for the child.
10.That the child spend time with the mother in accordance with her wishes.
The mother filed a Notice of Appeal on 14 March 2018 against both the orders relating to contravention and the parenting orders. The Notice of Appeal contains 34 grounds, spanning five pages. It is alleged variously that her Honour made a number of appealable errors with respect to the contravention applications. In discussion with the self-represented mother this morning, I indicated to her that unless she could provide strong, persuasive arguments, that insofar as the contravention orders were the subject of appeal, I was not persuaded that her appeal should receive expedition.
I sought to explain to her, and she indicated to me that she understood, that by its nature, an application for expedition of an appeal seeks to place this appeal in priority to other appeals waiting to be heard. Participants in every case awaiting hearing have a right to have their case heard as quickly as an extremely stretched court can reasonably permit. It is reasonable that parties should expect the Court not to delay their matter by prioritising a later-filed matter, unless the circumstances of the later filed matter require that it should take precedence over their matter.
With respect, to her credit, the self-represented mother indicated that she understood that to be the case.
As discussion proceeded this morning, the mother made it abundantly clear that the central thrust of her challenge to her Honour’s orders related to the parenting orders which her Honour made.
In short compass, the mother contends that the father’s application for parenting orders was dealt with in what might crudely be described as a peremptory fashion by her Honour, who then having dealt with that application in that manner, proceeded to deal with the contravention application. In effect the mother asserts that her case in respect of the parenting orders was not properly considered or indeed considered at all.
In that respect she tells me this morning that the matters the subject of the contravention application inform, as it were, her case in respect of the parenting matter. In very broad compass, she asserts that despite C’s maturity, pressure has been brought to bear upon her to not see her mother. She asserts that C wishes to see her but is in effect being prevailed upon not to see her, and that her true desire which is to see and have a relationship with her mother is being thwarted by the father.
Each and all of those matters which can be seen in part to have informed the application for contravention are, as the mother contended, directly relevant to the parenting issues which her Honour had to decide. The mother contends that her Honour failed to take into account material considerations in respect of the parenting orders along the broad lines to which I have just referred.
In that sense it can be seen that the subject of the mother’s contravention applications were also, in effect, the subject of her case with respect to the father’s application for parenting orders and her contention is that her case in respect of parenting orders was not heard or at least heard properly by her Honour.
The mother was at some pains to emphasise that it was the parenting aspects of the case that were the true gravamen of the challenges that she sought to make to her Honour’s orders. That being so, and after some consideration, the mother determined to abandon those aspects of the appeal relating to contravention so as to focus entirely on paragraphs 7 through 10 of the orders made by her Honour, being parenting orders relating to C. The mother indicated that she was willing and able to file an Amended Notice of Appeal confining her appeal to those orders only.
That being the case and if the mother does in fact file an Amended Notice of Appeal as she says she will, the application for expedition takes on an entirely different flavour.
It of course must be noted that C will turn 17 years in August which is of course not far away. Equally, it must be noted that 12 months thereafter C will reach her majority and no parenting orders pertaining to her can be made.
Notwithstanding the child’s maturity and notwithstanding the imminence of her majority, the mother advances a number of contentions which suggest that the appeal should be heard and determined in priority to other appeals. In particular, reframing what the mother has said before me this morning, it is suggested by her that procedural unfairness attended the proceedings before her Honour insofar as they related to the decision about parenting orders.
It is said that there is some urgency in respect of, for example, the parental responsibility order because it is said that there are decisions, for example, relating to medical issues, that need to be discussed and decided upon by both parents jointly, which her Honour’s orders preclude.
I consider this to be a finely drawn case. It might be argued that the very matters upon which the mother relies, namely, the age of the child and the imminence of her majority, as being reasons why the appeal should be heard expeditiously, are reasons why it should not be.
However, ultimately I am persuaded that if the appeal is confined to the parenting issues and in light of what the mother says that she wishes to assert about the lack of procedural fairness including an apparent central assertion that her case in respect of those parenting orders was not heard, then it seems to me the appeal should receive expedition.
I will however make the order for expedition conditional upon the mother filing the Amended Notice of Appeal which she foreshadows that she will.
I propose to permit the mother 14 days within which to file the Amended Notice of Appeal. She has indicated to me this morning that she is able to do so within that time frame.
I will leave it to the Appeals Registrar to make all such further directions as might be necessary to be made including any directions with respect to the filing of written submissions which of course will now have a different flavour because of the abandonment of the appeal with respect to contravention.
For those short reasons then, I will order as I have earlier indicated, namely, that:
a)An Amended Notice of Appeal be filed within 14 days;
b)The Application in an Appeal be allowed; and
c)That each party pay their own costs of and incidental to the appeal.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 19 April 2018.

Associate:

Date: 27 April 2018