Enmore & Smoothe

Case [2014] FamCAFC 131

FAMILY COURT OF AUSTRALIA

ENMORE & SMOOTHE [2014] FamCAFC 131

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the appellant mother alleged a risk of child sexual abuse and the Federal Circuit Judge did not suspend interim orders allowing the respondent father to spend unsupervised time with the child, but transferred the proceedings to the Family Court – Whether the Judge erred by failing to act on evidence that was “not far-fetched, fanciful or remote” – Whether the Judge erred by relying on evidence other than that of an expert – Whether the Judge placed excessive weight on inconsistencies in the evidence – Appeal dismissed – Submissions to be filed in relation to costs.

FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent father brought contravention proceedings in relation to orders that allowed him to spend unsupervised time with the child – Where the Judge found that the mother did not have a reasonable excuse for breaching the orders and required the mother to enter into a bond to comply – Whether the Judge erred by relying on the reasons delivered in the substantive proceedings – Appeal dismissed – Submissions to be filed in relation to costs.
Family Law Act 1975 (Cth), ss 69ZN and 70NAA
CDJ & VAJ (1998) 197 CLR 172
Deiter & Deiter [2011] FamCAFC 82
Irvin and Carr (2007) FLC 93-322
Rice and Asplund (1979) FLC 90-725
Re W (Sex Abuse:  Standard of Proof) (2004) FLC 93-192
WK v SR (1997) FLC 92-787
APPELLANT: Ms Enmore
RESPONDENT: Mr Smoothe
FILE NUMBER:  BRC 4709 of 2012
APPEAL NUMBER: NA 52 of 2013
NA 66 of 2013
NA 8 of 2014
DATE DELIVERED: 23 July 2014
PLACE DELIVERED: Perth
PLACE HEARD: Brisbane
JUDGMENT OF: May, Thackray and Aldridge JJ
HEARING DATE: 29 May 2014
LOWER COURT JURISDICTION:
NA 52 OF 2013 Federal Circuit Court of Australia
NA 66 OF 2013 Federal Circuit Court of Australia
NA 8 OF 2014 Family Court of Australia
LOWER COURT JUDGMENT DATE:
NA 52 OF 2013 17 September 2013
NA 66 OF 2013 5 November 2013
NA 8 OF 2014 29 January 2014
LOWER COURT MNC:
NA 52 OF 2013 [2013] FCCA 1580
NA 66 OF 2013 [2013] FCCA 1924
NA 8 OF 2014 [2014] FamCA 44

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Merkin
SOLICITOR FOR THE APPELLANT: Henry Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele
SOLICITOR FOR THE RESPONDENT: Carroll Fairon Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Dooley
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

Orders

  1. The appellant mother’s applications to adduce further evidence filed on 7 March 2014 and 20 May 2014 be dismissed.

  2. The appeals NA 52 of 2013, NA 66 of 2013 and NA 8 of 2014 be dismissed.

  3. There be no order as to the costs of the Independent Children’s Lawyer.

  4. Within twenty-one (21) days of the delivery of judgment the respondent father file and serve submissions in support of his application for costs.

  5. Within…

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AGLC
Enmore & Smoothe [2014] FamCAFC 131
Case
[2014] FamCAFC 131
Decision Date

CaseChat Overview and Summary

The appeal before the Family Court of Australia concerned the relationship between Enmore, the mother, and Smoothe, the father, regarding the unsupervised visitation of their child. The mother, Enmore, sought to challenge the Federal Circuit Judge's decision to not suspend interim orders that allowed the father, Smoothe, unsupervised time with their child, despite her allegations of a risk of child sexual abuse. The Judge's decision to transfer the proceedings to the Family Court was also contested by Enmore. Additionally, Smoothe brought contravention proceedings against Enmore for allegedly breaching the interim orders, and the Federal Circuit Judge found that Enmore did not have a reasonable excuse for her actions, requiring her to enter into a bond to comply with the orders.

The court was required to decide whether the Federal Circuit Judge erred by not acting on evidence that was deemed credible and by relying on evidence other than that of an expert. The court also needed to determine if the Judge placed excessive weight on inconsistencies in the evidence. Furthermore, the court had to consider whether the Federal Circuit Judge erred in relying on the reasons delivered in the substantive proceedings when ruling on the contravention proceedings brought by Smoothe.

The appeals were dismissed by the Family Court of Australia. The court held that the Federal Circuit Judge did not err in their decisions, as the evidence provided was not deemed to be "not far-fetched, fanciful or remote." Additionally, the court found that the Judge did not place excessive weight on inconsistencies in the evidence. The court also found no error in the Judge's reliance on the reasons delivered in the substantive proceedings when ruling on the contravention proceedings. The appeals were dismissed, and the court directed that submissions be filed in relation to costs.

Orders

Orders of the court

1.

The appellant mother’s applications to adduce further evidence filed on 7 March 2014 and 20 May 2014 be dismissed.

2.

The appeals NA 52 of 2013, NA 66 of 2013 and NA 8 of 2014 be dismissed.

3.

There be no order as to the costs of the Independent Children’s Lawyer.

4.

Within twenty-one (21) days of the delivery of judgment the respondent father file and serve submissions in support of his application for costs.

5.

Within fourteen (14) days thereafter the appellant mother file and serve submissions in response to the submissions on behalf of the respondent father in relation to costs.

6.

Within fourteen (14) days thereafter the respondent father file and serve submissions in reply to the submissions of the appellant mother in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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