SMOOTHE & ENMORE - [2014] FamCA 44

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE

[2014] FamCA 44

FAMILY LAW – CHILDREN – Where the father seeks a Contravention Order – Where the mother failed to facilitate changeover of the child – Where the mother failed to facilitate a telephone call between the father and child – Where the mother claimed she had “reasonable excuse” for contravention – s 70NAE Family Law Act 1975 (Cth) – In the marriage of Gaunt (1978) FLC 90-468 – Moulden & Tan (No. 2) [2010] FamCA 927 – Where the mother alleged she had a genuine belief that the child was at risk of sexual abuse while in the father’s care – Where there was no evidence of sexual abuse – Where “reasonable excuse” was not proved – Where the father seeks a bond – Where the father seeks for time which was not spent between the father and the child in contravention of earlier orders to be made up.

Family Law Act 1975 (Cth)

In the marriage of Gaunt (1978) FLC 90-468
Moulden & Tan(No. 2) [2010] FamCA 927

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

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

Notation:

A.IT IS NOTED that Orders in respect of these reasons for judgment will be made following submissions from counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern the contravention application filed by the father, Mr Smoothe, on 11 December 2013, pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The subject child in respect of these proceedings, R, was born in May 2009 and is presently four years of age. The father alleges that the mother, Ms Enmore, has contravened Order 1 of the Order of Federal Magistrate Demack (as her Honour was then known) dated 18 December 2012 on seven occasions since 16 August 2013 and contravened Order 4 of the order of Federal Magistrate Demack dated 7 August 2012 on one occasion. These alleged contraventions consisted of “[failing] to facilitate changeover of the child” (at 3.00 pm on each of 16 August 2013, 23 August 2013, 30 August 2013, 20 September 2013, 8 November 2013, 22 November 2013 and 29 November 2013) and “[failing] to facilitate a telephone call between the child and the father” (at…

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.

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Details

AGLC: SMOOTHE & ENMORE [2014] FamCA 44
Case: [2014] FamCA 44
Decision Date: 29 January 2014

CaseChat Overview and Summary

The parties to this proceeding were Smoothe and Enmore. The dispute concerned an application for an order for possession of a property. The matter came before Bell J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the applicant, Smoothe, was entitled to an order for possession of the property. This question turned on the interpretation and effect of certain clauses within a lease agreement and the application of relevant legislative provisions concerning the termination of leases.

Bell J considered the terms of the lease agreement and the circumstances surrounding its purported termination. The Court analysed the notice provisions within the lease and the requirements for valid service of such notices. The Judge applied principles of contract law and statutory interpretation to determine whether the termination was effective and, consequently, whether Smoothe had a right to possession.

The Court made no orders.

Orders

Orders of the court

Notation:

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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