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

1. 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.

2. To the great credit of both Mr and Ms Dobbs those contravention applications, in the main, have been disposed of and that is in the hope that they can now move on with their lives both financially and in respect of the parenting of their daughter. But I have before me, following the remitting of the matters from the Full Court via Hartnett J, an issue of penalty in respect of one matter, which is a finding by Hartnett J confirmed by the Full Court that the husband, Mr Dobbs, breached Order 1 of the orders of Cronin J made on 15 February 2018. Interestingly, that order reads as follows:

   1.That the husband transfer to the wife all of his interest in the house at [B Street, Suburb C].

3. Obviously, from what I have said as the preamble to these reasons it was not me who conducted the hearing on the contravention and did not sit on the Court of Appeal, but it is notable, in my view, and perhaps relevant to penalty, that the orders of Cronin J do not place a sunset time limit on the transfer of the title to that property. In any event, a finding was made by her Honour that the husband did contravene that order. The evidence before me now, the background evidence, is somewhat vague, still disputed, and there are many grey areas between the parties as to when and if and in what form the husband made a signed transfer to the wife.

4. At the very least - and that is on the husband’s saying - that occurred in July 2019, which is some 18 months after the orders of Cronin J, and if the contravention application was argued on the basis of a reasonable time period then, quite frankly, I agree that the husband would be outside any reasonable timeframe for the handing of the transfer of documents to the wife, but that was not a matter for me. As I said, the breach was alleged. A finding was made and it was confirmed by the Full Court. The matter now proceeds to the second stage of penalty.

5. There is some issue as to whether the husband has a prior conviction. On my understanding of the chronology, he does not. The appeal that went to the Full Court also dealt with a contravention of a parenting order and he was successful in that appeal and that means that is the time, in my view, relevant to whether I should consider there being a prior matter and I am of the view that this is stage one and that I do not consider it a prior issue. 

6. Both parties now appear before me in person. They both made articulate and somewhat emotional submissions in respect of the issue of penalty which is understandable given their background.

   THE WIFE’S CASE

7. My understanding of the wife's position in respect of the matters aggravating this circumstance is that not armed with the signed transfer by the husband for some considerable period of time, whatever that time was, that she was initially in a precarious financial position made more difficult by the delay in handing her the transfer in circumstances where, armed with that transfer and a discharge of mortgage document, she could renegotiate her mortgage and, together with the sale of investment property, organise her finances to make payment on the husband. Issues of interest rates also aggravated the situation.

8. The wife tells me, and I accept, that she made a plea to the husband, in the interim, to agree with him still being on the title, to an arrangement with the bank whereby, in that interim period until the matter was resolved, then she could make interest-only payments on the loan. The husband did not agree to that reasonable request. It is tenuous as to whether that is an aggravating situation. The matter has finally resolved. It resolved by way of a section 106A application of the Family Law Act 1975 (Cth) (“the Act”) but not until August 2020, some 12 months or so after the husband says that he handed a transfer document to the wife. I accept the wife's submission, as a matter of logic and common sense, that the document handed to her at Court in or about July 2019, may not have been in a form to satisfy the recorder of titles, given some concern as to the husband's signature.

9. Having said that, I am at a loss to understand why the wife, sometime more proximate to July 2020, when handed such document, could not have either made an application under section 106A of the Act or simply brought the matter back before the relevant judge, which was Johns J.

10. In any event, the matter continued for some 12 months, consistent, perhaps, with the litigious history of these parties where it seems to me, frankly, with due respect to each of them, it is a situation of points being gained against the other that might be more relevant than some of the more substantive issues that should occupy their minds. Not surprisingly, in those circumstances where the parties remain in a serious acrimonious relationship, despite the fact that they share a child, the wife urges that the penalties be at the higher end of my discretion in the circumstances that I have read into these reasons.

11. To put it simply, the matters put by the wife to me carry some merit and some weight. At its most simple, there was a significant delay in the husband providing a transfer in a form that would be accepted by the recorder of titles. The delay, at the minimum, was some 18 months and may be longer, and I accept that the wife's financial position was impacted negatively accordingly, as I expect was her emotional health.

    THE HUSBAND’S CASE

12. In mitigation, the husband says firstly that he has no prior convictions and considering the chronology I accept that, that is the case. He argues that the orders of Cronin J were impacted by the fact that an agreement from some years prior between the parties and his mother for a financial advancement resulted in a caveat being placed on the title to the property which caused some delay in the settlement.

13. I am incredulous - and I cannot think of a better word - to accept that the argument could be mounted when I hear that the issue of the caveat and the mother's alleged loan or gift was not raised before Cronin J. The orders are clear. It is clear that his Honour was not asked to consider that situation. In those circumstances, the mitigating effect of that submission is minimal at best. I accept that there was acrimony between the parties. I accept that there were communications that were difficult. I accept that the husband's, perhaps, emotional situation and readiness to assist the wife was not itself assisted by a course of emails of an aggressive nature, which included being cc'd onto various unnecessary recipients.

14. 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

15. 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. 

16. 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.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McGuire.

Associate:

Dated:       12 September 2023