Keehan v Keehan - [2019] FamCAFC 250

FAMILY COURT OF AUSTRALIA

KEEHAN & KEEHAN

[2019] FamCAFC 250

FAMILY LAW – APPEAL – CONTRAVENTION APPLICATION – Where the mother appeals from a dismissal of her Contravention Application – Where the trial judge found it to be an abuse of process – Where the relevant child was three months shy of her 18^th birthday at the hearing before the trial judge – Where the child had ceased spending time with the mother two years earlier – Where the relevant child turned 18 prior to the hearing of the appeal – Where the mother wished to pursue her appeal nonetheless – Consideration of legislative intent of Division 13A – McClintock & Levier (2009) FLC 93-401 considered – Where Division 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders – Where the legislative purposes of Division 13A do not include punishment for past non-compliance with orders nor specific or general deterrence for past conduct – Where this appeal has no utility – Appeal dismissed.

Family Law Act 1975 (Cth) ss 65H(2), 69ZN, 70NAA(1), 94AAA(3), 112AP, Div 13A
Family Law Amendment Act 2000 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Re Bernadette (2011) FLC 93-463; [2011] FamCAFC 50
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

APPELLANT:

Ms Keehan

RESPONDENT:

Mr Keehan

FILE NUMBER:

BRC

3094

2013

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

17 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

3 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 May 2019

LOWER COURT MNC:

[2019] FCCA 1907

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The Application in an Appeal filed 18 November 2019 be dismissed.
The Amended Notice of Appeal filed 18 October 2019 be dismissed.
There be no order as to costs.

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 49 of 2019
File Number: BRC 3094 of 2013

Ms Keehan

Appellant

And

Mr Keehan

Respondent

REASONS FOR JUDGMENT

On 8 May 2019, a judge of the Federal Circuit Court of Australia (“FCC”) made an order dismissing the Contravention Application[1] brought by Ms Keehan (“the mother”) against Mr Keehan (“the father”) alleging numerous breaches by the father of parenting orders made in the FCC in 2014.
[1] Pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The trial judge determined that in the circumstances of the case it would be an abuse of process to allow the Contravention Application to proceed and, on that basis, dismissed it.
The mother appeals from the order dismissing her Contravention Application. It has been determined pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that this appeal should be dealt with by a single judge.
As will be discussed, a question arises as to whether this Court has jurisdiction to entertain this appeal and thus whether it ought be dismissed for want of jurisdiction. As will be explained, in circumstances where this appeal must be dismissed as lacking in any utility, it is ultimately unnecessary to resolve the question of whether the appeal is competent.

Relevant factual context

It is unnecessary for present purposes to traverse the full detail of the litigation history of this matter. Suffice to note that the parties finally separated in March 2012 and this appeal has been heard some eight years later.
The subject parenting orders made in the FCC in 2014 concern parenting arrangements for the parties’ children, B born in 1999 and C born in 2001. In summary, the orders provided for the parents to have equal shared parental responsibility for both children and for the children to live week about with each parent.
From March 2015, the mother commenced residing a matter of several doors away from the father’s home. However, notwithstanding that the parents lived in close proximity to each other in June 2015,[2] B decided to no longer live with, or spend time with, the mother. That position was formalised by an order made on 17 November 2015 which provided that the operation of the parenting orders, so far as they provided for B to live with the mother, were suspended.
[2] Reasons for judgment at [4].
B turned 18 years of age in 2017. By operation of s 65H(2) of the Act the parenting orders then ceased to be in force in relation to B.
Despite the parenting orders having ceased to be in force in relation to B as at 2017, when the mother filed her Contravention Application about 12 months later the mother included in it multiple counts of alleged breaches of orders relating to B, many going back to 2014.
In March 2016,[3] C decided to no longer live with, or spend time with, the mother.
[3] Reasons for judgment at [4].
Thus it was that, as at the date of the hearing in the FCC on 8 May 2019, more than two (2) years had elapsed since C had decided to cease spending time with the mother as provided for in the subject orders. Crucially, as at that hearing date, C was only three months shy of turning 18 years of age when the parenting orders would cease to be in force in relation to her.
As at the date of hearing of this appeal, the parenting orders had ceased to be in force in relation to C since she turned 18 in 2019.

Approach of the trial judge

The mother complains that she was denied procedural fairness by the trial judge. However it is demonstrable that the trial judge was at pains to explore with the mother whether there was any utility in the Contravention Application proceeding and there is no substance to the complaints about the approach of the trial judge.
In circumstances where C was only three months shy of turning 18 years of age; where for a long time neither C (since 2016) nor B (since 2015) had spent time with the mother as provided for in the 2014 orders (despite the mother living only some seven houses away from their residence with the father), it was unsurprising that the trial judge was at pains to ascertain what was sought to be achieved by the mother by prosecuting a Contravention Application including numerous counts dating back to 2014. The mother confirmed during the course of the hearing on 8 May 2019 that she had not even spoken to her children since the beginning of December 2018.[4]
[4] Transcript 8 May 2019, p.3 line 19.
Notably, the approach taken by the trial judge was entirely consistent with the principles for conducting child-related proceedings in s 69ZN and the powers within Division 12A of the Act which the trial judge was bound to apply. As I noted at [86] in Caballes & Tallant:[5]
86.Clearly enough the provisions of Division 12A dictate that a judicial officer hearing and determining proceedings to which Division 12A applies, including a contravention application under Division 13A, should take an active role in directing, controlling and managing the conduct of the proceedings including by the exercise of the powers identified in Division 12A which have been referred to.
[5] (2014) FLC 93-596.
In the course of exchanges between the trial judge and the mother there were these exchanges:[6]
[6] Transcript 8 May 2019, p.8 line 34 to p.10 line 6.
[MS KEEHAN]: I – all I want is a relationship with my children - - -
HIS HONOUR: I know. Yes.
[MS KEEHAN]: - - - to be able to talk them.
HIS HONOUR: How will – okay. I understand that.
[MS KEEHAN]: And for them to have a mother in their lives, to celebrate the special occasions.
HIS HONOUR: Yes. But how will, then, all of these contraventions which go back to – as far as 2014, with allegations that the father failed to consult with you about parental responsibility, that he failed to provide you with any notification or details about holiday time, that he failed to ensure that the children attended to all aspects of their school and extra curricula activities – I’m just going through this – I’m picking these from random – that he failed to refrain from being disrespectful to you, that he failed to have the child live in an equal shared care arrangement – and it goes on and on. And I asked you how many there were and you couldn’t tell me. But there are numerous. Even if I found the father guilty of those things, which, as I say, go back to 2014, how is that going to force [C] to have a relationship with you?
[MS KEEHAN]: Well, I would like to be able to have a relationship, be able to contact them and chat with them and rebuild that relationship…
…
HIS HONOUR: All right. But how will the – how will a finding of the father guilty of these contraventions – which, as I say, “Go back to when the orders were made” how’s that going to work? How is it going to give you that relationship which you crave? And I understand that you want that relationship.
[MS KEEHAN]: Because if I don’t make connection within the next three months before she’s 18, I don’t believe I will ever have a connection with her again. And she deserves to have a mother in her life.
HIS HONOUR: Right-oh. .....
[MS KEEHAN]: And her mother’s family in her life.
HIS HONOUR: Yes. [Ms Keehan], I can understand your view of that. It may or may not be correct. I don’t know. I’m not determining that. That’s not what I’ve asked. My question is this. Even if I found the father guilty of all these alleged contraventions, how is that going to force the child, [C], to have a relationship with you? Because that’s what I need to know.
[MS KEEHAN]: I – I would – I know whatever order we put in place the father’s not going to comply. But I would like to be able to have their phone numbers. I don’t have the son’s phone number. I would like to be able to have - - -
…
The transcript reflects that the trial judge squarely raised the question of an abuse of process in a number of exchanges including the following, in response to which the mother makes references to “contempt” when her application was clearly framed as a Contravention Application pursuant to Division 13A:[7]
HIS HONOUR: … Why would I deal with this now, with [C] being three months off the age of 18, with [C] studying pure mathematics at university, which means she is a girl of remarkable intelligence? I’m also satisfied that she is choosing not to see you. Why would I deal with this now?
[MS KEEHAN]: I think she wants a relationship. Her response to the family report writer was, “Not really”. But – and she was in tears. She didn’t want to talk badly about her Mum. And I know that this was the third Child Inclusive conference that she was at. And by that stage she knows that what she says gets told to Dad and Mum.
HIS HONOUR: Yes.
[MS KEEHAN]: So in 2016, once she did - - -
HIS HONOUR: No. No. No. That’s – with all due respect, you’re digressing. Why would I deal with it? Why wouldn’t I not treat this simply as an abuse of process, being it’s not going to achieve what you want?
[7] Transcript 8 May 2019, p.16 lines 16–33.
In a subsequent exchange the mother acknowledged that making orders for C at her age would be “difficult” but then referred to her desire for there to be some “punishment” of the father.[8] In a further effort by the trial judge to ascertain anything positive that could be achieved by continuation of the proceedings there was this exchange:[9]
HIS HONOUR: I’m just wondering how this type of application, at the age [C] is, because it’s too late for your son.
[MS KEEHAN]: Yes.
HIS HONOUR: At the age [C] is, I’m just wondering how this will achieve what you want.
[MS KEEHAN]: I know that if I don’t reconnect I will never see those children again. They will never have myself and my family, in their lives.
[8] Transcript 8 May 2019, p.22 line 35 to p.23 line 5.
[9] Transcript 8 May 2019, p.24 lines 30–39.
The trial judge’s reasons for judgment set out in some detail the expert evidence by which the trial judge was satisfied that C had decided for herself not to see her mother.[10] Then at [35] to [40] of the reasons the trial judge records:
35. The mother said she wants a relationship with her child [C].
36.She wants a whole range of new orders put in place, which she sets out.
37.She wants interim orders made so [C] can contact her until she turns 18, [in 2019].
38.That is not an interim order. It is a final order. The court can make that order, but the court cannot make [C] do anything.
39.[C] sounds like an extremely intelligent young woman. She is studying [X Degree] at university. That is not a subject which most people could do. That is an indication that she is an intelligent person who has capacity to make her own decisions.
40.There is no possible way this court could enforce upon [C] an order to see her mother, because this court cannot order children to do anything.
[10] Reasons for judgment at [21] to [24].
Ultimately, the trial judge concluded that nothing positive could be achieved by allowing the Contravention Application to proceed and that it was an abuse of process.
Clearly enough the trial judge was referring to an abuse of process in the wider sense of that expression as discussed in the authorities referred to in Marsden & Winch (2013) FLC 93-560 at [143] and following. In particular, as is there noted, in Ridgeway v The Queen (1995) 184 CLR 19 Gaudron J said at 74-75:
…
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘‘frivolous, vexatious or oppressive’’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘‘defined and closed categories’’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘‘abuse of process’’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘‘seriously and unfairly burdensome, prejudicial or damaging’’ or ‘‘productive of serious and unjustified trouble and harassment’.’’
(Emphasis added) (Footnotes omitted)

Relevant legal context of this appeal

The provisions of Division 13A (Consequences of failure to comply with orders, and other obligations, that affect children) and, importantly, the fact that Division 13A is included within Part VII of the Act, appear to manifest a clear legislative intention. That is, an intention that Division 13A is directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrence from, or punishment of, non-compliance with orders.
In other words, the purpose of Division 13A is prospective and is to be contrasted with the purposes of punishment for contempt and the powers to deal with contempt in s 112AP of the Act. There can be no doubt that proceedings under s 112AP of the Act have the dual purpose of coercion, to enforce compliance with orders, as well as a punitive purpose of imposing punishment for (past)

non-compliance. The punitive element attracts sentencing principles such as specific and general deterrence.
In McClintock & Levier (2009) FLC 93-401 (“McClintock”) the Full Court was called upon to consider whether the sentencing principles relating to “general deterrence” and those relating to “punishment” have any role to play when sanctions are imposed under Division 13A. The three members of that Full Court (Finn, Coleman & Cronin JJ) delivered separate judgments. In each of those judgments is set out (to varying degrees of detail) relevant provisions of Division 13A which renders it unnecessary for that process to be repeated in this judgment.
Whilst Finn J accepted that, when imposing sanctions under Division 13A, the “principal consideration” was enforcing compliance with orders, her Honour considered it was permissible for the Court to have regard to general deterrence (at [44] to [47]). Finn J appears to have had significant reservations as to whether punishment, as an end in itself, has any role to play in imposing sanctions under Division 13A but stopped short of expressly stating it had no such role (at [48] to [52]).
In contrast to Finn J’s conclusions, each of the other members of the Court (Coleman & Cronin JJ) determined that neither general deterrence nor punishment have any role whatsoever to play in the imposition of sanctions under Division 13A.
Coleman J observed, with respect to the contempt powers conferred by s 112AP of the Act and proceedings for contempt:
151.It is also not in doubt that such proceedings have a “duality of purpose”. Such proceedings are both coercive in so far as they are directed to enforcement of court orders, and punitive, in that they punish for breaches of court orders.
In then contrasting the provisions of Division 13A Coleman J stated:
153.In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.
154.In my view there is force in the submission of Counsel for the mother, that, whereas proceedings pursuant to s 112AP of the Act have a dual purpose, the purpose of proceedings under Division 13A is to “enforce compliance with orders”. In my view the distinction is significant.
155.It is unsurprising that when sentencing in s 112AP proceedings broader considerations including general deterrence may be significant. As the terms of s 112AP make clear, to succeed with an application under the section, in addition to contravention of an order of the court, a “flagrant challenge to the authority of the court” must be proved beyond reasonable doubt. It would be surprising if the objectives of the criminal law were not relevant to the exercise of sentencing discretion given that requirement.
156.In my view, given the coercive nature of proceedings under Division 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.
157.As noted earlier, learned Counsel for the father sought by reference to the decision of the High Court in Witham and Holloway (supra) to argue that, whether punishment was imposed for coercive or punitive reasons, it remained “punishment”. It was thus submitted that there is no basis for suggesting that the sentencing principles in the exercise of discretion in coercive and punitive proceedings differed. I do not accept that such a conclusion follows from or can be read into the decision of the High Court in Witham (supra). As Brennan, Deane, Toohey and Gaudron JJ said in Witham (at ALR 420) the case turned on the standard of proof which was applicable. It does not in my view follow that because the outcome of coercive and punitive proceedings may be the same in terms of the “punishment” determined, that the outcomes are necessarily reached by reference to the same principles, or in pursuance of the same objectives.
158.Whilst I accept that the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was “adequately punished” (our emphasis) in a way that was “just and appropriate”, to prevent “other people from committing the same or similar” breaches, to “protect the community” from the mother, or, other than for the purposes of procuring compliance of the court’s orders, “to denounce the conduct” of the mother.

Cronin J likewise placed significance upon the distinction between the evident legislative intent in Division 13A compared to the punitive purpose in the contempt provisions of the Act. Commencing at [230] Cronin J stated:
230.In my view, there is a distinction between the coercive and punitive provisions of the Act.
231.It is helpful to compare Division 13A of Part VII to Part XIIIA and Part XIIIB. Section 70NAA(1) deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. Whilst there are certain similarities of language between s 70NFC and s 112AG(5), the distinction is clear between the coercive nature of the orders in Division 13A and the punitive orders in Part XIIIA.
232.Similarly, the language of Part XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Division 13A.
233.The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.
234.For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.
(Emphasis in original)
After further reference to a number of specific provisions within Division 13A Cronin J stated at [237] as follows:
237.All of the provisions of Division 13A therefore focus on the parties and the court’s obligation to endeavour to make its orders work if they have been contravened.
In my judgment, the respective reasoning of Coleman and Cronin JJ is compelling and combines to produce the authoritative conclusion that Division 13A reflects the legislative intention that Division 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders. Neither punishment of the individual concerned nor deterrence (either specific to the individual or general deterrence) have any legitimate role in proceedings under Division 13A and specifically the imposition of sanctions under that Division.
This conclusion as to the legislative intention reflected in Division 13A is fortified when regard is had to the legislative history. Division 13A was created in 2000 by the Family Law Amendment Act 2000 (Cth) and was described as a new “parenting compliance regime” within Part VII of the Act. It superseded the enforcement powers contained in Part XIIIA of the Act concerning orders affecting children. By the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Division 13A was revised and Division 12A was introduced into Part VII of the Act. Importantly, that reflected the legislative intent that the provisions of Division 12A should apply to Contravention Applications in respect of orders affecting children. Clearly then, the legislature intended that the purpose of Division 13A was ensuring compliance with parenting orders, as is expressed in s 70NAA(1) in relation to the powers conferred by Division 13A.
It follows that this appeal has no utility. The subject application was a Contravention Application brought pursuant to the provisions of Division 13A. As already noted, C attained her majority in 2019 prior to the hearing of this appeal. The subject parenting orders have ceased to be in force in relation to any “child” and have no continued operative effect. There is no longer any parenting obligation imposed by the subject orders. There is nothing to enforce.
Taken from the mother’s Amended Notice of Appeal the orders the mother seeks on appeal include an order that the Contravention Application “be heard by the Appeal Court: or alternatively, be remitted for urgent hearing in the Federal Circuit Court.” However, to repeat, there no longer exists any operative parenting orders affecting any child capable of enforcement under Division 13A of the Act.
Given that the legislative purposes of Division 13A do not include punishment for past non-compliance with orders nor specific or general deterrence for past conduct, there cannot be any utility in an appeal for the purpose of having the subject contravention undergo hearing either by this Court or in proceedings remitted to the FCC.
It is by the same process of reasoning that a question of jurisdiction arises. That is, whether this Court in fact has jurisdiction to entertain this appeal.
In Re Bernadette (2011) FLC 93-463, the Full Court considered a case where the child the subject of primary proceedings had attained the age of 18 years prior to the hearing of the appeal. The plurality in that case (Bryant CJ & Strickland J) noted at [27]:
27.The issue of jurisdiction arises because an appeal to the Full Court pursuant to s 93A of the Act is not an appeal stricto sensu but is by way of a rehearing (CDJ v VAJ (1998) 197 CLR 172; Allesch v Maunz (2002) 203 CLR 172), invoking the process whereby the Full Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time the appeal is heard (CDJ v VAJ (supra) per McHugh, Gummow and Callinan JJ at [111]). The Court’s jurisdiction on appeal is therefore partly appellate and partly original.
Plainly upon the facts, and in accordance with the law as it now exists, there are no operative parenting orders in force and arguably no jurisdiction for either this appeal, or the substantive Contravention Application to be heard.
As both parties to this appeal were self-represented and neither have any legal training or qualifications, the Court did not have the benefit of any submissions directed to the question of whether or not the Court has jurisdiction to entertain this appeal. Given that feature, and that this appeal is being dealt with by a single judge, I consider that it is better that I express no concluded or definitive view about jurisdiction, when it is unnecessary to do so to achieve disposition of this proceeding. My preliminary view, within the constraints identified, is that this Court does not in the circumstances identified, have jurisdiction to entertain this appeal. However, given that for the reasons identified, this appeal lacks any utility and is dismissed on that basis, there is no reason to express a concluded view about jurisdiction.
It follows from dismissal of the appeal as lacking in any utility that the mother’s Application in an Appeal to adduce further evidence should also be dismissed.
The father having represented himself in these proceedings incurred no legal costs with respect to this appeal and in the event the appeal was dismissed he did not seek any order for costs.
I therefore make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 December 2019.

Associate:

Date: 17 December 2019