Keehan & Keehan (No. 2)
[2018] FamCAFC 139
•31 July 2018
FAMILY COURT OF AUSTRALIA
| KEEHAN & KEEHAN (NO. 2) | [2018] FamCAFC 139 |
| FAMILY LAW – APPEAL – PARENTING – where the appeal was conceded – where the father agreed that the mother was not afforded procedural fairness and that the trial judge’s reasons were inadequate – where the trial judge gave no formal reasons – where reasons are an essential part of transparent justice – appeal allowed. FAMILY LAW – RE-EXERCISE OR REMITTER – where the appeal court could not decide on matters centrally disputed between the parties – where the child the subject of the proceedings would be nearly 18 years by the time the remitted proceedings were heard – where the Court could not re-exercise the discretion – where there was no utility in remitting the matter. |
| Family Law Act 1975 (Cth) ss 60CC, 65D(1), 117(1) |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Keehan & Keehan [2018] FamCAFC 79 Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348 U & U [2000] FamCA 703 (Unreported) U v U (2002) 211 CLR 238; [2002] HCA 36 Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51 |
| APPELLANT: | Ms Keehan |
| RESPONDENT: | Mr Keehan |
| FILE NUMBER: | BRC | 3094 | of | 2013 |
| APPEAL NUMBER: | NOA | 22 | of | 2018 |
| DATE DELIVERED: | 31 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Kent JJ |
| HEARING DATE: | 31 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS DATE: | 14 February 2018 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE RESPONDENT: | In person |
Orders
The Application in an Appeal filed by the appellant on 17 July 2018 be dismissed.
Leave be refused for the appellant to rely upon an Amended Application in an Appeal received by the Court on 30 July 2018.
The appeal be allowed.
Paragraphs 7, 8, 9 and 10 of the orders made by Judge L. Turner on 14 February 2018 be discharged.
Pursuant to s 117(1) of the Family Law Act 1975 (Cth) there be no order as to costs.
That the Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the 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 (No. 2) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 22 of 2018
File Number: BRC 3094 of 2013
| Ms Keehan |
Appellant
And
| Mr Keehan |
Respondent
EX TEMPORE REASONS FOR JUDGMENT[1]
MURPHY J
[1] As was stated would occur when this judgment was delivered orally, citations, quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.
The mother of a girl who was aged 16 and a half years at trial and who will soon turn 17, appeals parenting orders made by Judge L. Turner on 14 February 2018.
On 19 April 2018, I heard an application for expedition of the mother’s appeal. The appeal was from orders made in respect of contravention applications brought by the mother and the parenting orders just referred to. In discussion with the self-represented mother on that day, it was clear that any expedited appeal would be confined to an appeal against the parenting orders; that is, the appeal which is before the Court today pursuant to a Further Amended Notice of Appeal filed by the mother.
Given the child’s age and the prima facie case for error founded in procedural unfairness and lack of reasons, the parenting appeal was expedited.[2] An Amended Notice of Appeal was filed accordingly. It appeals orders which provided as follows:
7.That the final parenting Orders made on 4 July 2014 in respect to the child [C] born … 2001 (“the child”) are hereby dismissed.
8.That the child [C] born … 2001 (“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.
[2]Keehan & Keehan [2018] FamCAFC 79.
The mother’s Further Amended Notice of Appeal contains 32 grounds of appeal. Those grounds broadly relate to assertions of procedural unfairness, apprehended bias, inadequate reasons and errors in the application of principle.
The father concedes the appeal. In doing so he agrees that the mother was not accorded procedural fairness and that her Honour’s reasons are not adequate to explain the orders made. The father asserts the proceedings should be remitted. The mother asserted in her material that this Court should re-exercise the relevant discretion and ourselves make parenting orders. The mother made oral submissions before us to that effect.
The father commenced proceedings in April 2013. Interim orders were made on 13 May 2014 for equal shared parental responsibility; and final orders were made on 4 July 2014 which sought to incorporate the earlier orders, and otherwise provided for the children to live with the father each week, culminating in seven nights per fortnight (in addition to school holidays and special occasions), with the remaining time to be spent with the mother. That order related to both children who were then both within the jurisdiction of the Court.
After that time it appears that the mother’s relationship with her son (“B”) began to deteriorate, resulting in the proceedings being reopened and orders being made in November 2015 suspending the mother’s time with B, and ordering that he “spend time with the mother at all such times as may be requested by the child”. B has now reached majority and is not the subject of any proceedings before the Court or any orders.
The mother’s central contention is that the relationship between her and C has developed in the same way as it did with B, resulting in the application and the orders made by her Honour the subject of this appeal. It can be seen that the core of the dispute between the parties is that the mother asserts that the father has, in effect, influenced the views of the child. The father asserts to the contrary saying that C is a mature and intelligent child who has expressed firm and unwavering views about what she considers to be in her best interests and specifically, the nature and extent of the relationship between her and her mother.
The parenting component of the proceedings before her Honour comprised but a few minutes and five pages of the transcript. It commences with her Honour asking the father (who filed no material in the proceedings) his position. The self‑represented father’s position, expressed from the bar table, was that the child could see her mother whenever she wished and that this occurred “[v]ery rarely”.[3] Her Honour asked each of the parties whether it is “appropriate for there to be orders in place for a sixteen and a half year old child”.[4] Again, each responded from the bar table and the self-represented mother made it plain that she did.
[3] Transcript, 14 February 2018, p 2 ln 31.
[4] Transcript, 14 February 2018, p 3 ln 15–16; p 5 ln 24–25.
The discussion, which I have just summarised, concluded before her Honour as follows:[5]
HER HONOUR: Can I just say to you this, Ms [Keehan]. I’ve been incredibly patient with you in all these number of years that you’ve been before this court. The child is old enough to make up her own mind. I am not going to allow any orders to be placed on that child, because it is impossible for any orders to be met for two reasons. Firstly, it will be up to the child as to what time she wants to spend with you, because she’s now a young adult. And, secondly, I’m not going to create orders. And I know you say there’s already orders in existence, but they’ve not worked for many years. I’m not going to create orders where it puts the father in a situation and it puts you in a situation. It puts me in the situation where you continue to be in a court system where you should have been out of this court system years ago.
[THE MOTHER]: Yes.
HER HONOUR: I’m going to dismiss the substantive application that is before the court. I am going to make orders, given [C’s] age, that the child – that all previous orders are hereby discharged, that the child live with the father, the father have sole parental responsibility for the child, and the child spend time with the mother in accordance with her wishes…
[5] Transcript, 14 February 2018, p 6 ln 5–23.
Although her Honour dismissed the “substantive application … before the court”, the orders do not dismiss the application, and her Honour proceeds to make parenting orders in relation to that application.
The crux of the grounds as they relate to the parenting orders, is that her Honour made orders in respect of a parenting trial without at all addressing the issues in dispute between the parties, or allowing the parties to make their case (in particular, of course, the mother). The mother had filed a “List of Issues Requiring Determination” in accordance with trial directions which was not referred to at all by her Honour. In Allesch v Maunz[6] Kirby J said at [35]:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”…
[6] (2000) 203 CLR 172; See also, Re F: Litigants in person guidelines (2001) FLC 93-072 at 88,279 [253].
It is also notable that her Honour made orders for the father to have sole parental responsibility of C, despite neither party seeking such an order. A judge, of course, is not bound by the parties’ proposals,[7] and must make an order which it considers proper.[8] However, the mother should have been given the opportunity to respond to the making of such an order. It is also relevant that the family report writer recommended that:
…The Court may, therefore, wish to consider that it would be in [C’s] best interests to have a parenting regime in accordance with the child’s expressed views and consider finalising this matter to prevent the child from further exposure to on-going litigation.
[7]U v U (2002) 211 CLR 238 at [80].
[8]Family Law Act 1975 (Cth) s 65D(1).
Her Honour gave no formal reasons at all for making the parenting orders which she did. In U & U,[9] the Full Court dealt with a case in which the trial judge did not deliver formal reasons for dismissing an adjournment application. In that case, Holden and Jerrard JJ said:
10.That familiarity with the matter also extended to his Honour, and has had the unfortunate consequence that he omitted to state reasons for his refusal, other than the comments made during argument on the application. It is more than understandable that when an experienced Judge hears arguments from legal representatives who are familiar with a matter that all concerned make unstated assumptions about facts within their common knowledge and understanding.
11.Those common understandings, when not translated into brief reasons, can make it difficult for others to identify what the reasons were for making, or not making, particular orders. In the instant case, his Honour identified several matters in argument recorded over some 28 pages of transcript, and all of those were plainly relevant to the exercise of the relevant discretion.
[9] [2000] FamCA 703 (Unreported).
Justice Finn said in the same case at [6]–[7]:
…it needs to be emphasised that the obligation to give reasons in [a matter of practice and procedure] does not require the giving of lengthy or detailed reasons.
However, some reasons are required…
Her Honour’s familiarity with this matter stretched over almost five years. There can be little doubt that her Honour was aware of its complexities and nuances and, crucially, the coincidence between the issues relating to this child and the now adult other child of the parties the subject of earlier proceedings and orders. Equally, the views of an apparently intelligent and apparently mature 16 and a half year old deserved very significant weight and the consideration of that relevant consideration is manifest in the transcript.
Yet, the mother sought to agitate other important issues. Centrally, for example, she contended that C did not have the maturity to which the father, and it would seem her Honour, accorded her. It may be that, by reference to the evidence before her and the child’s best interests, her Honour regarded that those issues – referenced to s 60CC – should receive little or no weight. In that respect, the reasons dealing with them may well have needed to be brief – indeed, very brief. However, there were no such reasons and they cannot be gleaned from the transcript.
This is by no means the first case in which an appeal from the Federal Circuit Court of Australia has seen no formal reasons and either an express or implied reliance upon the transcript as those reasons. Whether or not as a matter of law the transcript can stand as reasons, it is a practice – certainly in respect of a trial – which, with all respect, in my view, should cease. Whatever might be thought of the merits of a party’s case, formal reasons, however brief and suited to the proceedings at hand, are an essential part of transparent justice.
I am of the view, then, that the concession that the appeal should succeed is properly made and the appeal should be allowed.
The central difficulty with the mother’s position that this Court should re‑exercise the relevant discretion is that the very matters which see her appeal succeeding are the very matters which prevent this Court from re-exercising the discretion.
In Vass v Vass,[10] the Full Court said:
148.It is plain from the decision of the High Court in Allesch v Maunz that on any re-exercise of discretion, this court is obliged to achieve a just and equitable outcome by reference to the law and facts as they exist as at the date of re-exercise.
149.That presents difficulties both evidentiary and practical. Those difficulties arise where, as here, the Court is told that many matters central to the exercise of discretion are the subject of dispute…
(Citations omitted)
[10] (2016) 53 Fam LR 373.
By reference to the positions of both parties, it cannot be said that it is possible for this Court to decide upon matters centrally disputed by both parties, including perhaps centrally, the reasons for the views expressed by the child. Those matters must be the subject of a new trial if they are to be adjudicated at all.
In the proceedings before this Court this morning, both the father and mother were self-represented. Each of the members of the bench sought in various ways to explain the ramifications and principles inherent in this Court either re‑exercising the discretion or as an alternative remitting the matter for a rehearing. When the latter was canvassed with the self-represented mother, she with great respect to her, sensibly and intelligently said that she could see no purpose at all in the matter being remitted to the Federal Circuit Court. It might be observed that by reason of the experience of this Court it would be extremely likely that any hearing of the remitted matter would not be heard for some nine months or so. At that time, C would be months short of her eighteenth birthday and the jurisdiction of this Court in respect of parenting orders for her would come to an end. As I have said, I consider with great respect to the mother that her concession that a retrial has no utility, is properly and sensibly made.
That being the case, the question which confronts this Court is whether it can, on the evidence before it, re-exercise the discretion as the mother wishes it to do.
The Court provided an opportunity to the mother to advance all such arguments as she might in respect of that question. The mother raised a series of issues which no doubt are centrally relevant, at least from her perspective, to the best interests of this child. Central to them are her assertions that C does not possess the maturity to which others, including her father, accord her and, broadly described, that there has been a process of influence upon the wishes of, first B, and now C, such that C ostensibly at least says things that suggest she does not want to spend time with the mother nor seek out her guidance, amongst other things.
The more the mother advanced those matters which no doubt are important to her, the more it became abundantly clear that the central issues upon which any re-exercise of the discretion would be based are disputed, indeed centrally disputed, as between the parties and have been so disputed for a large number of years.
That being the case the conclusion of this Court must be that this Court is unable to re-exercise the discretion for itself.
In the unusual circumstances of this case where, as I have sought to point out, C will be some months short of her eighteenth birthday by the time that any remitted proceedings could be reasonably be heard and determined by the Federal Circuit Court, this is a case where the Court in my view should come to the view that there was no utility at all in remitting the matter to that court for rehearing.
The mother sought to file two applications in an appeal both directed towards the adducing of further evidence. Those applications and the affidavit material accompanying them are irrelevant for the purpose of further evidence because as I have already said, the appeal was conceded. Those applications should be dismissed.
At the conclusion of the hearing, the parties sought costs against each other in relation to the appeal, and certificates in the alternative. The mother said she incurred costs arising from the preparation of appeal books, transcripts and advice she sought in relation to the appeal. I consider that in the circumstances of this case, each of the parties should bear their own costs as contemplated by s 117(1) of the Family Law Act 1975 (Cth). It is appropriate for certificates to issue to both of the parties.
For the reasons I have just outlined, I would make the following orders:
a)The Application in an Appeal filed by the appellant on 17 July 2018 be dismissed.
b)Leave be refused for the appellant to rely upon an Amended Application in an Appeal received by the Court on 30 July 2018.
c)The appeal be allowed.
d)Paragraphs 7, 8, 9 and 10 of the orders made by Judge L. Turner on 14 February 2018 be discharged.
e)Pursuant to s 117(1) of the Family Law Act 1975 (Cth) there be no order as to costs.
f)That the Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
g)That the Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
ALDRIDGE J
I agree with the reasons given by Justice Murphy and the orders proposed by him.
KENT J
I also agree.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge and Kent JJ) delivered on 31 July 2018.
Associate:
Date: 7 August 2018
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