Smoothe and Enmore (No. 2) - [2014] FamCA 45

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE (NO. 2)

[2014] FamCA 45

FAMILY LAW – CHILDREN – Where the father seeks a Contravention Order – Where the mother found without reasonable excuse for contravening parenting orders – s 70NEB(1)(d) Family Law Act1975 (Cth) – Ordered to enter into a bond – Ordered an extension of existing orders to compensate the father for time that was not spent with the child due to the contravention – Costs.

Family Law Act 1975 (Cth)

McClintock & Levier (2009) 233 FLR 179

APPLICANT:

Mr Smoothe

RESPONDENT:

Ms Enmore

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4709

2012

DATE DELIVERED:

29 January 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

16 January 2014 and 29 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT:

Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Merkin

SOLICITOR FOR THE RESPONDENT:

Kim Eccleston Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

IT IS ORDERED THAT:

Pursuant to s 70NEB(1)(d) of the Family Law Act 1975 (Cth), THE MOTHER having been found without reasonable excuse contravening the parenting Orders of 7 August 2012 and 18 December 2012, IS ORDERED to enter into a bond in the sum of FIVE HUNDRED DOLLARS ($500) without surety for a period of two (2) years as security upon the condition that the Mother comply with all current parenting Orders.
The Mother to pay the $500 security referred to in Order (2) hereof within fourteen (14) days of the date of this Order to the Collector of Public Monies.
As and by way of compensation, Order 1(b) of the Order of 18 December 2012 is extended for a period of three (3) months, to 5.00 pm Sunday.
Leave be given to the Father’s legal representatives to file and serve an Application in a Case seeking that a Recovery Order issue, with such Application in a Case to be adjourned to a date to be fixed before the Honourable Justice Bell on the giving of twenty-four (24) hours notice, should the Mother fail to comply with any parenting Order of this Honourable Court.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The parenting Orders of 7 August 2012 and 18 December 2012 remain in full force and effect.

IT IS FURTHER ORDERED THAT:

The costs of this application be reserved to the trial Judge.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smoothe and Enmore (No. 2)

Details

AGLC: Smoothe and Enmore (No. 2) [2014] FamCA 45
Case: [2014] FamCA 45
Decision Date

CaseChat Overview and Summary

In *Smoothe & Enmore (No. 2)*, the Family Court of Australia considered an application by the father, Mr Smoothe, seeking contravention orders against the mother, Ms Enmore. The dispute concerned Ms Enmore's contravention of existing parenting orders made on 7 August 2012 and 18 December 2012, which dealt with the time the child spent with each parent and communication between the child and the father.

The court was required to determine whether the mother had contravened the parenting orders without reasonable excuse, and if so, what orders should be made pursuant to Subdivision E of Division 13A of the *Family Law Act 1975* (Cth). Specifically, the court considered the father's requests for the imposition of a bond, compensatory time for the child to spend with the father, and variations to the existing parenting orders.

Justice Bell found that the mother had contravened the parenting orders on multiple occasions and had not proven a reasonable excuse for these contraventions. Applying the principles from *McClintock & Levier*, the court considered each contravention individually but allowed for a single overarching order. The court determined that Subdivision E of Division 13A of the Act applied, and it was appropriate to make orders requiring the mother to enter into a bond. The court reasoned that the bond, with a monetary security and a condition of compliance with all parenting orders, would act as a deterrent against future breaches.

Consequently, the court ordered the mother to enter into a bond of $500 for two years, without surety, conditional upon her compliance with all current parenting orders. Additionally, an existing order for compensatory time was extended by three months to compensate the father for time lost due to the mother's contraventions. The court also reserved costs to the trial judge and noted that further orders could be made for a recovery order should the mother fail to comply with any parenting order.

Orders