Dobbs & Dobbs

Case [2021] FamCAFC 78

FAMILY COURT OF AUSTRALIA

Dobbs & Dobbs [2021] FamCAFC 78

Appeal from: Dobbs & Dobbs [2020] FamCA 700
Appeal number(s): SOA 79 of 2020
SOA 98 of 2020
File number(s): MLC 8793 of 2015
Judgment of: ALSTERGREN CJ, STRICKLAND & AUSTIN JJ
Date of judgment: 21 May 2021
Catchwords:

FAMILY LAW – APPEAL – CONTRAVENTION APPLICATION – Where the primary judge found that the appellant had contravened a final parenting order and a final property order –  Where appellant sought to appeal those findings – Where an appeal cannot lie from mere findings – Appeal dismissed.

FAMILY LAW – APPEAL – PENALTY – Where the primary judge imposed a bond on the appellant pursuant to s 70NEB of the Family Law Act 1975 (Cth) as a penalty for contravention of a final parenting order – Where the appellant sought to appeal this order – Where the contravention hearings were not conducted in accordance with r 21.08 of the Family Law Rules 2004 (Cth) – Where the conduct of the contravention hearings lacked procedural fairness – Merit in ground of appeal – Appeal allowed.

Legislation:

Family Law Act 1975 (Cth) Pts VII, X, Div 13A, ss 4(1), 70NEB(1)(d), 94(1)(a)

Family Law Rules 2004 (Cth) r 21.08
Cases cited:

Bircher & Bircher [2014] FamCAFC 154

Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49

Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Hay v Hay (1998) FLC 92-819; [1998] FamCA 95

Kamano & Kamano [2011] FamCAFC 189

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Tryon & Clutterbuck (No.2) (2009) FLC 93-412; [2009] FamCAFC 176

Wang v State of NSW [2011] NSWCA 321

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Division: Appeal Division
Number of paragraphs: 34
Date of hearing: 28 April 2021
Place: Heard in Melbourne, delivered in Hobart
Counsel for the Appellant: Mr Timothy Byrne
Solicitor for the Appellant: Michael Benjamin and Associates
Respondent: Self-Represented

ORDERS

SOA 79 of 2020
SOA 98 of 2020
MLC 8793 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR DOBBS

Appellant
AND:

MS DOBBS

Respondent

ORDER MADE BY:

ALSTERGREN CJ, STRICKLAND & AUSTIN JJ

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:

1.Appeal SOA 79 of 2020 be dismissed.

2.Appeal SOA 98 of 2020 be allowed.

3.Count 5 of the Application-Contravention filed by the respondent on 22 January 2020 be remitted to the Family Court of Australia for re-hearing by a judge other than the primary judge.

4.The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to Appeal…

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Details
AGLC
Dobbs & Dobbs [2021] FamCAFC 78
Case
[2021] FamCAFC 78
Decision Date

CaseChat Overview and Summary

Dobbs & Dobbs was an appeal from the Family Court of Australia. The appellant sought to overturn findings of contravention of a final parenting order and a final property order, as well as a penalty imposed pursuant to s 70NEB of the Family Law Act 1975 (Cth). The appeal sought to overturn these findings on the basis that the contravention hearings were not conducted in accordance with r 21.08 of the Family Law Rules 2004 (Cth), and that the conduct of the contravention hearings lacked procedural fairness. The legal issues for the court were whether an appeal could lie from mere findings of contravention and whether the appeal had merit in relation to the penalty imposed.
The court held that an appeal could not lie from mere findings of contravention, and dismissed the appeal in relation to the contravention findings. However, the court found that there was merit in the appeal in relation to the penalty imposed. The contravention hearings were not conducted in accordance with r 21.08 of the Family Law Rules 2004 (Cth), and the conduct of the contravention hearings lacked procedural fairness. The appeal in relation to the penalty was allowed, and the matter was remitted to the Family Court of Australia for re-hearing by a judge other than the primary judge. The appellant was granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Appeal SOA 79 of 2020 be dismissed.

2. Appeal SOA 98 of 2020 be allowed.

3. Count 5 of the Application-Contravention filed by the respondent on 22 January 2020 be remitted to the Family Court of Australia for re-hearing by a judge other than the primary judge.

4. The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to Appeal SOA 98 of 2020.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

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

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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