Dobbs & Dobbs
[2021] FamCAFC 78
•21 MAY 2021
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 2020File 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 2015APPEAL 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 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).
REASONS FOR JUDGMENT
ALSTERGREN CJ, STRICKLAND AND AUSTIN JJ:
INTRODUCTION
In February 2018, final orders were made between Mr Dobbs (“the husband”) and Ms Dobbs (“the wife”) in relation to their child and their property interests pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively. Nevertheless, the parties’ complaints and recriminations survived the orders, as a host of enforcement and contravention applications then followed.
Over four days during July and August 2020, a judge of the Family Court of Australia heard a collection of enforcement and contravention applications filed by both parties, culminating in a series of orders being made on 24, 27 and 31 August 2020.
Relevantly, one order made on 31 August 2020 was expressed in these terms:
(11)Upon the Court finding the husband has contravened order 1 of the orders made 15 February 2018 and order 14 of the orders made 9 February 2018 the Court shall be required to make orders addressing what consequences and/or penalties, including costs, shall be imposed upon the husband. That matter shall be listed for hearing on 20 November 2020 at 10.00am. The wife shall file and serve at least 7 days prior thereto an affidavit of evidence as to any costs and other financial losses alleged to have been occasioned to her by virtue of the husband’s breach of order 1 of the orders made 15 February 2018.
(Emphasis added)
As can be seen from its terms, the primary judge found two of the contravention allegations made against the husband by the wife were established – one in respect of a parenting order and the other in respect of a property settlement order. Those two proven contraventions were adjourned to 20 November 2020 for consideration of the sanctions to be imposed.
The husband’s first appeal lies from that order (Appeal SOA 79 of 2020).
Then, on 20 November 2020, as foreshadowed, the primary judge sanctioned the husband for the single count concerning the contravened parenting order in these terms:
(1)Pursuant to s 70NEB(1)(d) of the Family Law Act 1975 (Cth), the husband enter into an undertaking to be of good behaviour for a 12 month period and comply with the parenting orders of the Court made 9 February 2018.
The husband’s second appeal lies from that order (Appeal SOA 98 of 2020).
The wife was unrepresented in the appeal. She did not file any Summary of Argument, but in an affidavit she swore or affirmed in the appeal on 14 April 2021, she deposed that she neither supported nor opposed the appeals.
The first appeal should fail but the second appeal should succeed.
APPEAL SOA 79 OF 2020
Order 11 made on 31 August 2020 comprises two parts. The first part is the finding that two particular contravention counts were proven against the husband. The second part is the procedural adjournment of the pending contravention application for its final disposition.
The husband’s appeal from that order pertains only to the findings; not to the adjournment.
Therein lies the flaw of this appeal. No appeal lies from mere findings. Pursuant to s 94(1)(a) of the Act, an appeal only lies from a “decree”.
The Act defines a decree to include a judgment or order (s 4(1)), but it is well established the definition only encompasses orders which dispose of a justiciable dispute by an operative judicial act binding the parties’ rights (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Wang v State of NSW [2011] NSWCA 321 per Campbell JA at [23]).
The mere finding by the primary judge that the husband contravened two orders without reasonable excuse did not finalise the parties’ justiciable dispute by an operative and binding judicial act. The findings were only progressive steps in the litigation and were not themselves decisive of the parties’ rights (Yule v Junek (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21, Aickin J at 26). The justiciable controversy was not actually concluded until the husband was sanctioned for the proven contraventions by an enforceable court order, which later occurred in respect of one count on 20 November 2020.
The husband submitted that, in respect of appeals brought from such contravention findings, the Court had “long taken the view” that such appeals were competent, but the submission is rejected. It offends what was said by the Full Court in Hay v Hay (1998) FLC 92-819 (per Ellis, Baker and Finn JJ at [22]–[28]), which was endorsed in Tryon & Clutterbuck (No.2) (2009) FLC 93-412 (per Finn J at [42]). The finding of contempt in Hay v Hay, from which the appeal was brought, was found not to be an appealable decree by express reference to and reliance upon the jurisprudence springing from Yule v Junek. The finding of “contravention” in this case is not relevantly different from the finding of “contempt” in Hay v Hay.
Of the authorities cited for the husband’s proposition, only two were actually supportive of it. In Kamano & Kamano [2011] FamCAFC 189 at [2]–[4], Coleman J was apparently satisfied that, absent any actual order being made by the primary judge, an appeal from merely reasons was competent. In Bircher & Bircher [2014] FamCAFC 154 at [1]–[6], May J was satisfied an appeal from a contravention finding was competent. Neither decision referred to Hay v Hay or Tryon & Clutterbuck (No.2), let alone to binding High Court authority.
Respectfully, we cannot agree with the views expressed in Kamano and Bircher and prefer those expressed in both Hay v Hay and Tryon & Clutterbuck (No.2), which we regard as being consistent with binding High Court authority.
The first appeal is therefore incompetent and should be dismissed.
APPEAL SOA 98 OF 2020
The wife’s outstanding contravention application culminated on 20 November 2020 in respect of the count concerning the contravened parenting order (being Count 5 which was alleged in the Application-Contravention filed by the mother on 22 January 2020), with a good behaviour bond imposed upon the husband for the breach pursuant to s 70NEB(1)(d) of the Act. The wife’s application in respect of that count was then determined by an operative judicial act which bound the parties’ rights. That order is a decree from which an appeal validly lies.
No separate reasons for judgment were published for the subject order made on 20 November 2020. The transcript reveals the primary judge mooted the imposition upon the husband of a good behaviour bond of 12 months’ duration, with which proposal the husband agreed and the wife queried the duration of the proposed bond. The question of sanction to be imposed for the other count (being Count 3 which was alleged in the Application-Contravention filed by the wife on 22 January 2020) was adjourned due to the lateness of and deficiencies in the mother’s filed evidence regarding her losses stemming from that contravention.
In this appeal, numerous grounds were advanced, but it is necessary to first consider the complaint that the husband was denied procedural fairness by the manner in which the hearing of the contravention application was conducted because, if that ground of appeal is established, it means the husband was denied a fair hearing, the only remedy for which is a re-hearing (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The hearing before the primary judge occupied four days spread across several months. By reference to both the transcript and the reasons for judgment (at [4], [5] and [39]), it is clear the primary judge purported to concurrently hear many applications: contravention applications prosecuted against the husband by the wife; contravention applications prosecuted against the wife by the husband; and numerous other applications filed by the parties for consequential orders designed to facilitate the implementation of the final property settlement orders made in February 2018.
With the aggregated hearing spread over several days, it was quite unclear what particular applications were the subject of attention by the primary judge at any one point in time. Advertence to the transcript reveals how the pending applications were given jumbled consideration. We have some sympathy for the primary judge, dealing with multiple applications which were only the latest in a long line of other contravention applications in which one or both parties had been legally unrepresented. However, while the primary judge may have been trying to finalise all outstanding applications economically, the conduct of the proceedings in that way was procedurally unfair for two fundamental reasons.
First, the quasi-criminal procedure prescribed for hearing contravention applications (r 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”)) is remarkably different from the usual procedure for hearing other forms of civil application. If there is to be a departure from that procedure, it must be done so as not to cause injustice or prejudice to the respondent (Caballes & Tallant (2014) FLC 93-596 per Kent J at [89]–[95]). Relevantly, the husband was defending the wife’s contravention applications and, as the respondent, he enjoyed an entitlement to remain mute until the closure of the evidence offered in support of the alleged contraventions, which right he could not be forced to relinquish. He could not be expected to lead evidence about the need for further orders to facilitate implementation of the final property orders when he was simultaneously defending an allegation of his contravention of those very same orders.
Secondly, leaving aside the various applications for consequential property orders, the parties’ countervailing contravention applications should not have been heard together because neither party could be expected to simultaneously prosecute one case and defend another. An applicant who prosecutes a contravention application carries the burden of adducing evidence to prove the alleged contravention. Since the parties’ respective contravention applications related to the same underlying parenting and property orders, neither party could concurrently carry the burden of proof and reserve their right to silence.
The procedure adopted by the primary judge for hearing and determining the wife’s contravention applications bore no similarity at all to that prescribed by r 21.08 of the Rules, even though her Honour purported to observe the Rules. The manner in which the hearing was conducted improperly impelled the husband to forego his right to remain silent in answer to the wife’s contravention applications until after she had closed the evidence she led in support of them. Without attempting to be exhaustive, a summary of events exemplifies the way in which the father was denied a fair hearing.
The primary judge (in accordance with rr 21.08(a) and 21.08(b)) put to the wife the counts alleged against her by the husband in his two contravention applications for her formal response, but did not do the same thing for the husband in respect of the counts alleged against him by the wife.
On 2 July 2020, the primary judge commenced to hear one of the two contravention applications filed by the husband. During his cross-examination by the wife’s counsel, the wife interjected to say she did not realise that contravention applications were being heard that day and her counsel then interjected to tell the primary judge the crux of the dispute was really the husband’s contravention of orders which allegations were the subject of separate contravention applications brought by the wife. The wife’s counsel and the primary judge then broke into general discussion about the unfulfilled property orders, culminating in the primary judge’s decision to adjourn the contravention application then under consideration until 29 July 2020.
As it transpired, the hearing was not actually resumed until 24 August 2020. Upon resumption, her Honour went straight to the applications for consequential orders which it was said were needed to facilitate the implementation of the unfulfilled property orders. As the general discussion developed, the primary judge raised the husband’s second contravention application and challenged him about the evidence he had available to prove it. The primary judge then enquired of the husband whether he wanted to cross-examine the wife in respect of her evidence concerning the unfulfilled property orders, which he chose not to do. Her Honour then invited the husband to make submissions about the unfulfilled property orders following which her Honour sought submissions from the wife’s counsel, to which the husband was able to respond. Her Honour then announced she would move to the contravention applications, starting with the husband’s second contravention application even though the first was still part-heard. The husband’s cross-examination then resumed, traversing a range of matters far beyond the scope of his two contravention applications, including allegations of his own contraventions of orders. In effect, the husband was improperly converted from applicant to respondent when the evidence filed in support of the contraventions alleged by the wife had not yet been either formally adduced or tested in cross-examination.
When the proceedings returned to court three days later on 27 August 2020, the primary judge announced the proceedings would resume with the consideration of the remainder of the wife’s first contravention application, even though the husband had still not yet been asked to plead to the counts within it, nor offered the chance to cross-examine the wife in respect of the evidence filed in support of her application. The husband’s cross-examination then continued. All this occurred notwithstanding the husband’s first contravention application was part-heard and still pending (Order 5 made on 24 August 2020). When the husband’s cross-examination was complete, the primary judge returned to consider the husband’s outstanding contravention application and permitted him to cross-examine the wife. Then, the wife’s counsel was permitted to cross-examine the husband again followed by more cross-examination of the wife by the husband. When the evidence was closed, her Honour reserved judgment without taking any submissions.
Orders were made and reasons for judgment delivered several days later on 31 August 2020. The suite of orders covered the competing applications for consequential orders and the parties’ contravention applications, including the order which is the subject of the first appeal.
Relevantly, Count 5 which was alleged in the Application-Contravention filed by the mother on 22 January 2020 was adjourned until 20 November 2020 for further hearing in relation to the imposition of sanction and was finalised on that date by the order which is the subject of this appeal.
Given the denial of procedural fairness throughout the hearing, as was claimed by the husband, the primary judge fell into appealable error. The subject contravention application, in so far as it comprises Count 5 in the Application-Contravention filed by the mother on 22 January 2020, must be remitted for re-hearing. There is no need to consider the remaining grounds of appeal (Boensch v Pascoe (2019) 94 ALJR 112 at [7]–[8]).
COSTS
The husband did not seek costs if the appeal succeeded, but did seek costs certificates if the appeal succeeded on errors of law. The denial of procedural fairness was an error of law and so the husband should have a certificate for Appeal SOA 98 of 2020, but not for the re-hearing. The mother did not file any Summary of Argument and appeared in the appeal without legal representation, so there is no basis for her to receive a certificate for either the appeal or the re-hearing.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Alstergren CJ, Strickland and Austin JJ. Associate:
Dated: 21 May 2021
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