Dobbs & Dobbs

Case [2023] FedCFamC1A 234

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dobbs & Dobbs [2023] FedCFamC1A 234

Appeal from: Dobbs & Dobbs [2023] FedCFamC1F 860
Appeal number: NAA 266 of 2023
File number: MLC 8793 of 2015
Judgment of: AUSTIN, CAREW & CAMPTON JJ
Date of judgment: 21 December 2023
Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION – PENALTY – Where orders were made in 2018 to finalise property and parenting between the parties – Where in 2020 the respondent wife brought an Application-Contravention against the appellant husband – Where another judge found the husband had contravened the orders on one count as to the property orders and on one count as to the parenting orders –Where the husband was sanctioned with respect to the parenting order contravention but not the property order contravention – Where the husband previously filed two separate appeals – Where the previous appeal as to the contravention of the property order was dismissed as the justiciable dispute between the parties had not yet been determined (“the first appeal”) – Where the appeal in respect of the sanction imposed as to the contravention of the parenting order was allowed on grounds the husband had been denied procedural fairness – Where the primary judge made an order by consent dismissing all outstanding contravention applications, but the order did not enjoy the wife’s consent – Where the transcript records the primary judge realised the mistake and expressly announced the need for the dismissal order to be discharged but then inadvertently failed to do so – Where the order is discharged ab initio – Where the primary judge imposed a fine upon the husband for the outstanding property order contravention – Where the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention – Where the sanction imposed constitutes the judgment from which an appeal lies – Where the primary judge incorrectly took the view the dismissal of the first appeal meant his Honour only needed to determine the appropriate sanction – Appeal allowed – Matter remitted for re-hearing – Where the wife did not participate in the appeal – Costs certificate issued to the husband.
Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Proceedings (Costs) Act 1981 (Cth) s 9

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.19

Cases cited:

Akbar & Gandega [2023] FedCFamC1A 174

Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5

Department of Communities and Justice & Edwards [2023] FedCFamC1F 82

Dobbs & Dobbs (2021) FLC 94-021; [2021] FamCAFC 78

Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13

Harrell & Nesland (No. 2) (2021) 62 Fam LR 230; [2021] FamCAFC 35

Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76

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

State of NSW v…

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AGLC
Dobbs & Dobbs [2023] FedCFamC1A 234
Case
[2023] FedCFamC1A 234
Decision Date

CaseChat Overview and Summary

In the matter of Dobbs & Dobbs, the husband and wife were involved in a long-standing dispute over property and parenting arrangements, which was finalised in 2018. In 2020, the wife filed an Application-Contravention against the husband alleging that he had breached the 2018 orders. The husband was found to have contravened the orders on one count related to property and on one count related to parenting. While the husband was sanctioned for the parenting order contravention, he was not sanctioned for the property order contravention. The husband had previously filed two separate appeals, one of which was dismissed as the justiciable dispute between the parties had not yet been determined. The other appeal was allowed on grounds that the husband had been denied procedural fairness. In the present appeal, the primary judge dismissed all outstanding contravention applications by consent, but the order did not enjoy the wife’s consent. The primary judge also imposed a fine upon the husband for the outstanding property order contravention. The court found that the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention. The court found that the sanction imposed constituted the judgment from which an appeal lies.

The legal issues the court was required to decide were whether the appeal should succeed and what remedial orders should be made in the appeal. The court found that the appeal should succeed and that the orders made by the primary judge were incorrect. The court found that the primary judge had failed to discharge the order dismissing all outstanding contravention applications and that the primary judge had incorrectly taken the view that the dismissal of the first appeal meant his Honour only needed to determine the appropriate sanction. The court found that the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention. The court found that the sanction imposed constituted the judgment from which an appeal lies. The court found that the appeal should be allowed and the matter should be remitted for re-hearing.

The court allowed the appeal and set aside the orders made by the primary judge. The court set aside the order dismissing all outstanding contravention applications and the order imposing a fine upon the husband for the outstanding property order contravention. The court remitted Count 3 within the Application-Contravention filed by the respondent on 22 January 2020 for re-hearing by a judge other than Hartnett and McGuire JJ. The court granted the husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The wife did not participate in the appeal. The court issued a costs certificate to the husband.

Orders

Orders of the court

NAA 266 of 2023

MLC 8793 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DOBBS

Appellant

AND:

MS DOBBS

Respondent

ORDER MADE BY:

AUSTIN, CAREW & CAMPTON JJ

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Order 1 made on 12 September 2023 is set aside ab initio.

3. Orders 2 and 3 made on 12 September 2023 are set aside.

4. Count 3 within the Application-Contravention filed by the respondent on 22 January 2020 is remitted for re-hearing by a judge other than Hartnett and McGuire JJ.

5. The appellant is granted a costs certificate pursuant to 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 the appeal.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

We agree with Carew J that the appeal should succeed, but our respective reasons for that outcome differ and the disagreement affects the nature of the remedial orders which should be made in the appeal.Background In February 2018, orders were made to finalise a financial cause contested by the parties. One of the orders required the husband to transfer to the wife all of his proprietary interest in a designated parcel of real property (“the property”). He did not do so. On 22 January 2020, the wife brought an Application-Contravention against the husband alleging numerous counts of his contravention of various orders without reasonable excuse. One count concerned the husband’s failure to transfer his proprietary interest in the property to her (“Count 3”), while another count concerned the husband’s breach of a parenting order (“Count 5”). The contravention application was heard simultaneously with numerous other applications then pending between the parties during July and August 2020. Judgment was reserved, but reasons were delivered promptly on 31 August 2020. Relevantly for present purposes, the judge found both counts proven and adjourned both to a date in November 2020 for consideration of the sanctions to be imposed, at which later time Count 5 was sanctioned but Count 3 was not. By two separate appeals, the husband appealed from the finding made against him in respect of Count 3 and the sanction imposed upon him in respect of Count 5. As the Full Court explained when dismissing the first appeal in respect of Count 3 (Dobbs & Dobbs (2021) FLC 94-021 at [10]–[18]), appeals do not lie from findings – only from operable orders which determine the justiciable dispute between the parties. The second appeal in relation to Count 5, the judgment in respect of which was completed by the imposition of a sanction, was allowed on grounds the husband had been denied procedural fairness by reason of the manner in which it was prosecuted against him. The viral pandemic which gripped Australia for some years stalled the progress of Count 3 to conclusion. The hearing in respect of it eventually occurred before the primary judge on 12 September 2023. After some initial uncertainty, the primary judge perceived the task at hand was to penalise the husband in respect of Count 3. The primary judge determined to impose a fine of $2,500 upon him. His Honour also determined to make another order directing the release of funds still held on trust to the husband, which the primary judge was satisfied would then resolve all outstanding rancour between the parties. Reasons for those orders were delivered ex tempore. The primary judge made orders in these terms:1.BY CONSENT the respective contravention applications filed by the parties are dismissed.2.The sum of two thousand five hundred dollars ($2,500) is to be paid by the [husband], to The Collector of Monies at the Registry of the Federal Circuit & Family Court of Australia at Melbourne within twenty eight (28) days of the date of these orders. 3.Upon confirmation of the receipt of that payment then the monies held in trust by Regal Lawyers be released to the husband.(As per the original)The appeal

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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