Keenan and Keenan

[2018] FCCA 3094

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEENAN & KEENAN [2018] FCCA 3094

Catchwords:
FAMILY LAW – Parenting – consideration of section 116 of the Australian Constitution – the prohibition upon Commonwealth interference in practice of faith – whether there is jurisdictional basis in the Court’s injunctive relief provisions to prohibit the children’s practice of faith – interference with practice of faith.

Legislation:

Family Law Act 1975, ss.4, 60B(4), 61C, 68B, 114

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Australian Constitution s.116

Cases cited:

Re Andrew[1996] FamCA 43; (1996) FLC 92-692

Applicant: MS KEENAN

Respondent: MR KEENAN

File Number: PAC 4367 of 2018

Judgment of: Judge Harman

Hearing date: 23 October 2018

Date of Last Submission: 23 October 2018

Delivered at: Parramatta

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Mahony

Counsel for the Respondent: Ms Freelander

ORDERS

1. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9:00am on 7 January 2019 and:

   (a)The parties shall continue to attend at such times, dates and places as the consultant may advise;

   (b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

   (c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:

   (i)Any agreement reached between the parties;

   (ii)The issues raised by the parties and which will require determination by the Court;

   (iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

   (iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.

2. The matter is adjourned for further mention and directions to 12 March 2019 at 12noon.

3. By consent Orders are made in accordance with the Minute of Order executed by the parties marked Exhibit ‘A’ attached hereto.

EXHIBIT A

BY CONSENT, AND PENDING FURTHER ORDER, IT IS ORDERED:

1. That the children [X] born 2005 and [Y] born 2011 shall live with the mother.

2. That the parties restrained and injuncted from removing either of the children from the Commonwealth of Australia without the express written consent of the mother or order of this Honourable Court.

3. That the parties are restrained from causing, permitting or facilitating any passport to be issued for the children from either an Australia or other national authority for the children [X] born 2005 (also known as [X] and/or [X] and/or [X]) and [Y] born 2011 (also known as [Y] and/or [Y] and/or [Y]).

4. That until further Order, Mr Keenan (also known as Mr Keenan and/or Mr Keenan and/or Mr Keenan) Mr Keenan born 1978 and Ms Keenan (also known as Ms Keenan) born 1982, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or attempting to cause or permitting or attempting to permit the removal of the said children [X] born 2005 (also known as [X] and/or [X] and/or [X]) and [Y] born 2011 (also known as [Y] and/or [Y] and/or [Y]) by each party, their servants and/or their agents or by the children themselves, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s on the Watch List until the Court orders its removal or until each child attains the age of 16.

5. That provided that the father provides no less than 14 days’ notice to the mother (unless in an emergency), the father shall spend time with the children as follows:

   (a)If the father is in Sydney on a day where the children would not normally be in attendance at school, as agreed and in the absence of agreement from 10am to 6pm on Saturday and 10am to 5pm on Sunday on condition that the time does not occur for more than one weekend a month if weekend time.

   (b)If the father is in Sydney on a day when the children would normally be attending school, for two hours as agreed, and in the absence of agreement from 5pm to 7pm on condition that the time does not occur on more than 3 consecutive days in any one week period.

   (c)At such other times as agreed between the parties.

   (d)For one week in the NSW school holiday period in January 19 on each day of one 7 day period from 10am to 7pm.

6. That each parent is restrained from denigrating the other or members of the other parents family in the presence of or hearing of the children.

7. That changeover occur outside the home of the maternal grandparents.

8. That the father shall communicate by phone with the children between 6pm and 6.30pm on Monday, Wednesday and Friday and each alternate Saturday (commencing 27 October 2018) with the father to call and the mother to ensure that the phone is available, turned on and the children have privacy to take the call.

9. That the parents shall communicate about necessary matters via email.

10. That the parties do all things necessary to participate in FDR before the end of February 2019.

Notation: The parents enter these orders having regard to the following matters:-

(a)The father resides in Town A and the mother and children in Sydney.

(b)Between 2015 and June 2018 the father resided in Town A and the mother and children resided in (country omitted) causing each of the children to spend limited time with the father.

(c)The children have not spent overnight time in the sole care of the father.

(d)The parents acknowledge that the children will benefit from day time periods initially spent with the father before consideration is given to overnight time occurring.

(e)The parents intend to review the children’s progress, including with respect to the spend time arrangements, at the proposed mediation.

(f)The parties understand that the father will be seeking additional time with the children.

IT IS NOTED that publication of this judgment under the pseudonym Keenan & Keenan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4367 of 2018

MS KEENAN

Applicant

And

MR KEENAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to care arrangements for two children:

   [X], born 2005, presently 13 nearly 14 years of age; and,

   [Y], born 2011, presently seven soon to turn eight years of age. 

2. The parties to the proceedings are the children’s parents:

   Ms Keenan, the children’s mother and the Applicant;

   Mr Keenan, the children’s father and the Respondent.

3. Proceedings come before the Court today by way of first return date.  The parties have negotiated an extensive suite of Orders between them which will reintroduce a relationship between each of the children and their father. The parties are otherwise desirous of an adjournment of the proceeding to trial those arrangements, to participate in family dispute resolution and to further explore what issues require ventilation before the Court.

4. The matter will, at the request of the parties, be adjourned to the new year for further mention and directions. In the intervening period, compliant with the Court’s obligations pursuant to section 60B(4) of the Family Law Act 1975, incorporating the International Convention of the Rights of the Child as an object of the Act, a Child Inclusive Conference will occur so that the Court might have some independent, objective evidence as to the children’s views so as to enable a determination to be made not only as to the children’s views and the weight to be attached thereto but the extent to which the children might participate in these proceedings and in the decisions that will affect their future.

5. The Orders that are agreed between the parties are incorporated within a document, exhibit A, signed and dated by me today. I propose to make Orders in accordance with that document, save and except one paragraph thereof, being paragraph 11. That paragraph is expressed in the following terms:

   “That without admissions and pending the next court event, the mother shall use her best endeavours to ensure that the children not attend a (church) or purely religious gathering without written consent of the father”

6. The parents have not included within that which is agreed between them any allocation of parental responsibility. Accordingly, section 61C of the Act would apply to and delineate the practice of parental responsibility by these parents, being in effect joint and several parental responsibility such that each parent is entitled to make decisions with respect to major issues whilstsoever the children are in their care and without the need to consult with each other.

7. Major issues decisions are defined in section 4 of the Act as including the children’s religious and cultural upbringing. Accordingly, on the basis of the practice of parental responsibility that would operate by default, there would be no need for consultation between these parents as to the children’s religious upbringing. That does not, however, obviate against any interference in the practice of that parental responsibility. Although any interference with and particularly a removal from a parent of a right to participate in decision-making with respect to their children is a serious and significant step to not be taken lightly.[1]

   [1] For a review of relevant authorities, see for example Re Andrew[1996] FamCA 43; (1996) FLC 92-692.

8. The issue in this case is somewhat complex. Section 116 of the Australian Constitution prohibits the Commonwealth making any law establishing any religion or imposing religious observance or prohibiting free exercise of any religion. It is not the Commonwealth which seeks to interfere in the practice of faith by one or both of the parents or the children but the parents themselves. 

9. The prohibition upon Commonwealth interference in practice of faith might analogously signal that some real caution might be exercised before the Court enters into the arena of the parents’ very personal practice of faith not only for themselves but their children. As is submitted on behalf of the husband, appropriately and forcefully so, the practice of faith by children is dictated by their parents until the children reached their majority. Accordingly, it is a matter which is of great concern to each parent and which the parents are each entitled to participate in. 

10. The jurisdictional basis for such an Order must be found in the Court’s broad injunctive relief provisions, section 68B and section 114 of the Act. The issue becomes whether that jurisdiction can be appropriately invoked, and if it is appropriately invoked, whether it is appropriate for the Court to make such an Order.

11. The evidence that is relied upon in support of the restraint is found at paragraphs 154 and 155 of the husband’s evidence, indicating:

    It is important for me to continue having responsibility for decisions concerning the children, including schooling and religion. Ms Keenan has not consulted me about the children’s schooling.  I am concerned that some of Ms Keenan’s family members are very active in the (nationality omitted) community and I don’t want my children to be exposed to their religious practices and teaching.

12. There is no controversy that both parents are of the (religion) faith. It may be that they have different approaches and practices towards religious observance and practice of faith. I take the comments by the husband at paragraph 154 to be responsive to the relief that is sought by the mother in her Application, she seeking an allocation of sole parental responsibility in her favour. 

13. I am conscious, as regards to the practice of religion as between these parents and the differences that might well exist, of the words of former Chief Justice Burger of the US Supreme Court:

    There can be no assumption that today’s majority is right and the Amish and other like them are wrong. A way of life is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.

14. There is suggestion that the particular practice of faith of which the husband is concerned relates to what is broadly described as “radicalism”. There is nothing in the evidence that speaks to that issue which could enable the Court to thus proceed, by reference to the Court’s protective jurisdiction, to determine that an injunction for the personal protection of the children is necessary or proper. 

15. Section 68B of the Act permits injunctive relief to be granted for protection. Section 114 of the Act provides a broader category of injunctive power. However, the only head of jurisdiction that would be of any relevance to this issue is, again, section 114(1)(a), an injunction for the personal protection of a party to the marriage. The children, of course, are not parties. I am not satisfied that the evidence could establish that the Court’s jurisdiction is appropriately enlivened by reference to a requirement for personal protection.

16. I am not satisfied, lest I am wrong with respect to the above, that it would be appropriate for this Court, particularly by reference to the evidence that is available, to be satisfied that such an injunction could be made. Interference with practice of faith is an important and significant matter. It is certainly important and significant to the parents, and I am in no way critical of the husband for expressing the concerns that he may hold. However, I could not be satisfied on the evidence available that an injunction in those terms is warranted or made out.  Accordingly, that Order is not made.  However, the balance of Orders in exhibit A are. 

17. The proceedings are otherwise adjourned to 12 March 2019 12 noon for further mention and directions, during which period, as already indicated, the parties will attend family dispute resolution, those Orders being incorporated within exhibit A. An Order will also be made for the children to participate in a Child Inclusive Conference with their parents on 7 January 2019, more than sufficient time prior to the anticipated family dispute resolution to enable the information gleaned therefrom to, hopefully, be of some assistance to these parties. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 30 October 2018