Dobbs & Dobbs - [2023] FedCFamC1F 860

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dobbs & Dobbs [2023] FedCFamC1F 860

File number: MLC 8793 of 2015

Judgment of: MCGUIRE J

Date of judgment: 12 September 2023

Catchwords: FAMILY LAW – CONTRAVENTION – Where the husband was found guilty of contravening an order – Consideration of aggravating and mitigating factors – Penalty imposed

Legislation: Family Law Act 1975 (Cth) s 106A

Division: Division 1 First Instance

Number of paragraphs: 16

Date of hearing: 12 September 2023

Place: Melbourne

Applicant: Litigant in Person

Respondent: Litigant in Person
ORDERS

MLC 8793 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DOBBS

Applicant

AND:
MR DOBBS

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

12 SEPTEMBER 2023

THE COURT ORDERS THAT:
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 respondent Mr Dobbs, 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 Q Lawyers be released to the husband.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dobbs & Dobbs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
MCGUIRE J
BACKGROUND

I did have before me on remission from Hartnett J matters concerning contraventions between the parties. There had been mutual contravention applications. There appears to have been a history not only of acrimony between the parties and litigation in respect of both financial and parenting matters but, following that, a propensity to bring contravention applications to these Courts. It is worth noting the commonly held view of judges of these Courts that a contravention proceeding is not of itself a punitive exercise but one to ensure the compliance with Court orders. With that being said, there are traits of contravention applications that are analogous to those in the criminal Courts. It is a serious matter as are the matters of penalty which flow from findings of contravention.
To the great credit of both Mr and Ms Dobbs those contravention applications, in the main, have been…

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 Dobbs & Dobbs

Details

AGLC: Dobbs & Dobbs [2023] FedCFamC1F 860
Case: [2023] FedCFamC1F 860
Decision Date: 12 September 2023

CaseChat Overview and Summary

In the matter of Dobbs & Dobbs, the Federal Circuit and Family Court of Australia was tasked with assessing a contravention of a court order by Mr Dobbs against his ex-wife, Ms Dobbs. The dispute centred on whether Mr Dobbs had contravened a specific court order by not signing a document that would allow a bank to amend mortgage requirements. The wife argued that she had reasonably requested the husband to sign the document, while the husband claimed he had no obligation to do so and that the wife had not acted with clean hands regarding a delayed payment.

The primary legal issue before the court was whether Mr Dobbs had contravened the court order and, if so, what the appropriate penalty should be. The court considered various factors, including the nature of the contravention, the delay in complying with the order, and the financial circumstances of the wife and their child at the time. The court found that the contravention was not of the least serious nature and that there was no reasonable excuse for the delay, which was significantly aggravated by the wife's financial situation.

The court concluded that a fine was an appropriate penalty to deter Mr Dobbs from future contraventions and to serve as a general deterrent in the community. The court accepted that while Mr Dobbs was a professional, his understanding of the contravention provisions might not be readily apparent to him. Accordingly, the court ordered Mr Dobbs to pay a fine of $2,500, which would be paid within 28 days of the order. The order also stipulated that upon receipt of the payment, the monies held in trust by Q Lawyers would be released to the husband.

In summary, the court found Mr Dobbs guilty of contravening the court order, imposed a fine as the penalty, and directed the payment process to be carried out within the specified timeframe.

Orders

Orders of the court

MLC 8793 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DOBBS

Applicant

AND:

MR DOBBS

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

12 SEPTEMBER 2023

THE COURT ORDERS THAT:

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 respondent Mr Dobbs, 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 Q Lawyers be released to the husband.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

And where, as I say, the wife suggests that she reasonably asked the husband to sign a document to allow the bank to make an amendment to the mortgage requirements to allow interest only, the husband had no obligation to sign that, and what I have read of the email communications generally between the parties, I suggest that their relationship was such that he was reasonably not inclined to agree to that request, such is the relationship between the parties. The husband argues that the wife herself does not come to Court with clean hands in respect of a delayed or late payment emanating from the sale of a rental property. I have no details of the course of the sale of that property, whether it was placed on the market at a reasonable time for a reasonable price in reasonable circumstances given market conditions and I can place no weight on that submission by the husband.CONCLUSION In all the circumstances, this is a matter where I am dealing with a finding of a contravention without prior conviction. It is not of the least serious that come before these Courts and I have given examples to the parties of what are more serious and less contraventions that come to these Courts. I accept that there was a considerable delay. I accept that there is no reasonable excuse for that delay. I accept that the delay was aggravated by the financial circumstances of the wife at that time and vicariously, I expect, the parties' child in the care of the wife. In all those circumstances, I am of the view that a fine is an appropriate penalty. The fine should be enough to act as a deterrent to the husband in respect of contraventions and, if appropriate, general deterrence in the community. I accept that the husband is a professional. However, his understandings of the workings of the rather complex contravention provisions of the Act are perhaps not readily apparent to him.

Ratio Decidendi

Legal Principle Established

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File number:	MLC 8793 of 2015
Judgment of:	MCGUIRE J
Date of judgment:	12 September 2023
Catchwords:	FAMILY LAW – CONTRAVENTION – Where the husband was found guilty of contravening an order – Consideration of aggravating and mitigating factors – Penalty imposed
Legislation:	Family Law Act 1975 (Cth) s 106A
Division:	Division 1 First Instance
Number of paragraphs:	16
Date of hearing:	12 September 2023
Place:	Melbourne
Applicant:	Litigant in Person
Respondent:	Litigant in Person

MLC 8793 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DOBBS Applicant
AND:	MR DOBBS Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	12 SEPTEMBER 2023