Dobbs & Dobbs (No 2)
[2025] FedCFamC1A 37
•10 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dobbs & Dobbs (No 2) [2025] FedCFamC1A 37
Appeal from: Dobbs & Dobbs (No 4) [2024] FedCFamC1F 683 Appeal number: NAA 298 of 2024 File number: MLC 8793 of 2015 Judgment of: AUSTIN, BAUMANN & WILLIAMS JJ Date of judgment: 10 March 2025 Catchwords: FAMILY LAW – APPEAL – Where the husband was fined for contravening a property settlement order without reasonable excuse – Where the appealed orders flow from a series of anterior hearings and findings – Where the primary judge first rejected the husband’s oral application to summarily dismiss the wife’s contravention application against him – Where the contravention application was in the same terms as a previous contravention application the wife had withdrawn – Where the husband alleges the primary judge fell into legal error by rejecting his oral application – Where the prosecution of the contravention application was not precluded by the principle of issue estoppel – Where the primary judge positively found the husband had contravened the property settlement order – Where the husband’s complaint he was deprived of procedural fairness is rejected – Where the primary judge did not misapply the Evidence Act 1995 (Cth) or the Family Law Act 1975 (Cth) – Where the husband complains he was denied procedural fairness during the sanction hearing – Where his complaints are patently false because he exhausted his submissions and was heard – Where the husband alleges discretionary errors – Where the primary judge correctly assessed the seriousness of the contravention – Where the primary judge did not impose a disproportionate penalty – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) Pts 2.1, Divs 3, 4, 5, Pt 3.1, ss 27, 140
Family Law Act 1975 (Cth) Pts VIII, XIIIA, ss 106A, 112AB, 112AC, 112AD, 112AE, 112AF
Family Law Rules 2004 (Cth) r 1.15
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.69
Cases cited: Allwright & Allwright (2024) FLC 94-188; [2024] FedCFamC1A 79
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Dobbs & Dobbs (2021) FLC 94-021; [2021] FamCAFC 78
Dobbs & Dobbs (2023) FLC 94-167; [2023] FedCFamC1A 234
Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349
Dobbs & Dobbs (No 3) [2024] FedCFamC1F 535
Dobbs & Dobbs (No 4) [2024] FedCFamC1F 683
Dobbs & Dobbs [2018] FamCA 66
Dobbs & Dobbs [2018] FamCAFC 174
Dobbs & Dobbs [2019] FamCA 536
Dobbs & Dobbs [2020] FamCA 700
Dobbs & Dobbs [2023] FedCFamC1F 860
Galvis & Galvis (2024) FLC 94-200; [2024] FedCFamC1A 123
Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22
KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort and Village v Chilcott (2001) 51 NSWLR 516; [2001] NSWCA 116
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Qantas Airways Ltd v Gama (2008) 247 ALR 273; [2008] FCAFC 69
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Number of paragraphs: 76 Date of hearing: 4 March 2025 Place: Melbourne Counsel for the Appellant: Mr Ham Solicitor for the Appellant: U Lawyers The Respondent: Litigant in person ORDERS
NAA 298 of 2024
MLC 8793 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DOBBS
Appellant
AND: MS DOBBS
Respondent
ORDER MADE BY:
AUSTIN, BAUMANN & WILLIAMS JJ
DATE OF ORDER:
10 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dobbs & Dobbs has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BAUMANN & WILLIAMS JJ:
This appeal by the husband from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 15 October 2024, fining him $7,825 for contravening a property settlement order without reasonable excuse, is dismissed for the following reasons.
BACKGROUND
The history of the litigation is convoluted.
Property settlement orders under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were made between the parties on 15 February 2018 (Dobbs & Dobbs [2018] FamCA 66). The husband appealed from those orders, but his appeal was dismissed with costs in September 2018 (Dobbs & Dobbs [2018] FamCAFC 174).
Order 1 of the suite of orders made on 15 February 2018 (“Order 1”) required the husband to transfer to the wife all his proprietary interest in a parcel of real property (“the property”), but he did not comply with that order until July 2019, when he finally executed a registrable transfer.
In April 2019, before the husband had complied with Order 1, the wife filed a contravention application alleging his contravention of the order. Once the husband signed the registrable transfer in July 2019, with the grant of leave to do so, the wife withdrew the contravention application. Hence, the contravention application was neither heard on its merits nor formally dismissed by the Court (Dobbs & Dobbs [2019] FamCA 536).
The transfer document signed by the husband could not be registered because a caveat in favour of the husband’s mother was registered over the property at some point after the original trial. The property was not transferred from the parties’ joint proprietorship to the wife’s exclusive proprietorship until much later, after the caveat was removed.
The wife filed a new contravention application in January 2020 alleging the husband’s multiple contraventions of orders and, given the complications she encountered trying to implement Order 1, Count 3 of the fresh application alleged the husband’s breach of Order 1 for a defined period – from February 2018 until July 2019 – and thereby replicated a count within the application which was withdrawn some months beforehand.
The new contravention application was heard by another judge in conjunction with multiple other applications in mid-2020. On 31 August 2020, the judge found Count 3 proven and adjourned the contravention application until November 2020 for the imposition of sanction (Dobbs & Dobbs [2020] FamCA 700). The husband’s appeal from that bare finding was dismissed in May 2021 (Dobbs & Dobbs (2021) FLC 94-021 at [1]–[18]).
The sanction hearing did not proceed as anticipated in November 2020, but eventually occurred in September 2023, when another judge fined the husband the sum of $2,500 in respect of Count 3 (Dobbs & Dobbs [2023] FedCFamC1F 860).
In December 2023, the husband’s appeal from that judgment succeeded and Count 3 was remitted for re-hearing (Dobbs & Dobbs (2023) FLC 94-167).
Upon remitter, in April 2024, the primary judge heard the husband’s various preliminary oral applications to summarily dismiss Count 3. Judgment was reserved and his applications later dismissed on 24 May 2024, following which Count 3 was fixed for substantive re-hearing in July 2024 (Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349).
The contravention hearing proceeded in July 2024. Judgment was reserved and Count 3 was again found proven on 13 August 2024. The sanction hearing was then fixed for 14 October 2024 (Dobbs & Dobbs (No 3) [2024] FedCFamC1F 535).
Following the sanction hearing, on 15 October 2024, the primary judge imposed a fine of $7,825 upon the husband (Dobbs & Dobbs (No 4) [2024] FedCFamC1F 683).
The husband appealed from that judgment by Notice of Appeal filed on 11 November 2024.
THE APPEAL
The appeal challenges the order pronounced on 15 October 2024 – the culminating “judgment” in the contravention proceeding – on numerous different levels, making it necessary to address the series of hearings and the findings and orders which flowed therefrom, being: the rejection of the husband’s summary dismissal applications (in May 2024); the positive finding of his contravention (in August 2024); and the imposition of sanction (in October 2024).
The hearing on 29 April 2024 and the orders made on 24 May 2024
Relevantly, the primary judge made this order on 24 May 2024:
1.The oral application by the [husband] that count 3 of the Contravention Application filed 22 January 2020 be struck out and/or summarily dismissed is dismissed.
Grounds 2(a), 2(b), 2(c), 2(d), 3(a), 3(b) and 3(d) all allege the primary judge fell into legal error by making that dismissal order. Variously, the grounds contend that numerous different legal principles rendered the contravention application incompetent and obliged the primary judge to summarily dismiss it, as the husband sought.
Ground 2(b) alleges the wife’s prosecution of Count 3 was precluded by the principle of “issue estoppel”, but the proposition is rejected. The former contravention application was withdrawn by the wife, not formally dismissed by the Court, so the “issue” of the husband’s contravention of Order 1 was not judicially determined before the determination of Count 3 and so the principle of issue estoppel therefore did not apply (Blair v Curran (1939) 62 CLR 464 at 531; Jackson v Goldsmith (1950) 81 CLR 446 at 466; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21]–[23]), as the primary judge correctly found (at [22]–[34]).
The husband submitted in his Summary of Argument that the doctrine of issue estoppel even applies to bar the re-litigation of issues which have not been “expressly adjudicated” by the Court, but the submission is rejected. The common law authority he cited for the proposition does not stand for it. The estoppel doctrine only arises to prevent the re-litigation of an issue already decided by the Court.
Grounds 2(a) and 2(c) allege the prosecution of Count 3 was vexatious and an abuse of process, though the grounds only particularise the alleged abuse of process and not the alleged vexation, so presumably the terms were being used interchangeably. The doctrine of “abuse of process” overlaps the doctrines of estoppel and its invocation is similarly informed by considerations of the finality and the fairness of the litigation, but it has wider and more flexible application when the use of the court’s procedures would be unjustifiably oppressive or bring the administration of justice into disrepute and yet no variant of the estoppel doctrine would apply to prevent such mischief (Tomlinson v Ramsey Food Processing Pty Ltd at [24]–[26]).
The premise of the husband’s assertion of “abuse of process” is that the contravention dispute was “resolved” by the withdrawal of the former application, but this complaint is also without merit for the reasons given by the primary judge (at [35]–[50]). The issue of the husband’s alleged contravention of Order 1 was not resolved to finality by the withdrawal of the former contravention application, as he wrongly asserted both to the primary judge and in the appeal. The dispute was only “resolved” in the sense that the parties decided not to contest the dispute at that point. The need for any final resolution of the disputed contravention by the Court was averted by the withdrawal of the application, which was akin to its discontinuance, neither of which form of voluntary termination of a cause of action by an applicant operates as a judgment of the Court finally disposing of the cause (KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort and Village v Chilcott (2001) 51 NSWLR 516 at 527–528). There was no demonstrated scope here for the doctrine of “abuse of process” to apply more broadly than the doctrines of “claim estoppel” or res judicata. Consequently, it was neither oppressive nor unfair to allow the wife to prosecute Count 3.
Ground 2(d) alleges the primary judge erred by failing to summarily dismiss Count 3 when it served to re-litigate the previously withdrawn identical count of alleged contravention. The ground contends “procedural rules” required the dismissal of Count 3, but no such procedural rules were ever identified to the primary judge or in this appeal. The complaint is rejected as it adds nothing to the rejected grounds concerning estoppel and abuse of process.
Ground 3(a) alleges Count 3 was defective for the lack of necessary particulars. The primary judge correctly rejected this submission (at [63]–[71]) because Count 3 alleged the husband’s contravention of Order 1 endured over a period of 17 months, which particularity was sufficient when the contravention persisted for a prolonged period and was not a discrete act or omission committed at a single moment in time. Particularity is vitally important (Allwright & Allwright (2024) FLC 94-188 at [35]-[39]), but it would have been misleading for the wife to nominate “specific dates, times, and detailed descriptions” within the application, as the husband alleged was necessary, when there was but a solitary enduring contravention.
Grounds 3(b) and 3(d) allege Count 3 was defective because Order 1 was too vague to enable compliance and impracticable to implement. This was not an argument raised by the husband before the primary judge at the hearing in April 2024. He did not raise the point until the wife closed her evidence in support of the contravention application at the later hearing in July 2024. Nonetheless, being a point of law, the husband ought not be precluded from raising it in the appeal as the basis of an alleged erroneous failure to grant his summary dismissal application three months before in May 2024.
Yet the point is rejected because the terms of Order 1 were clear enough, stating:
1. That the husband transfer to the wife all of his interest in [the property].
The husband could not have been in any doubt from the text of the order that he was required to transfer his proprietary interest in the property to the wife. The omission from the order of any stipulated time within which he must do so meant his obligation was triggered forthwith. He would discharge his obligation by executing and furnishing to the wife a registrable transfer. He did not do so until July 2019.
The hearing on 22 July 2024 and the finding made on 13 August 2024
Relevantly, the primary judge made this finding on 13 August 2024, though the finding was styled as a declaration:
1.The [husband], has without reasonable excuse contravened Order 1 of the orders made by the Family Court of Australia on 15 February 2018 and that contravention continued up until 16 July 2019.
Multiple grounds of appeal challenge the way in which the hearing was conducted on 22 July 2024 and the reasons subsequently given by the primary judge for the finding of contravention made on 13 August 2024.
Grounds 1(a), 1(b), 1(c) and 1(e) allege the husband’s deprivation of procedural fairness in various ways at the hearing on 22 July 2024, being:
(a)not giving him adequate time to consider his objections to the wife’s affidavit evidence led in support of the alleged contravention (Ground 1(b));
(b)the admission of an exhibit (Exhibit A2) into evidence over his objection (Ground 1(c));
(c)compelling him to give evidence (Ground 1(a));
(d)requiring him to admit certain facts (Ground 1(a));
(e)permitting his cross-examination on facts which were not admitted (Ground 1(a)); and
(f)making findings against him without sufficient justification (Ground 1(e)).
Such complaints will be addressed individually, but it is important to observe the husband was represented by counsel at the hearing in July 2024, who made no complaint to the primary judge during the hearing about any deprivation of procedural fairness. The failure of counsel to contemporaneously raise the complaint makes it difficult, though perhaps not impossible, to now sustain the complaint in the appeal.
The first complaint is rejected because the wife did not eventually rely upon any affidavit in support of her prosecution of the contravention application. Instead, the parties agreed upon certain facts forming the premise of the contravention allegation, which were furnished to the primary judge. The transcript reveals this:
HER HONOUR: Thank you, [counsel for the husband]. All right, what’s happening?
[Counsel for the wife]: So, the matter is ready to proceed. We’ve come to a position where there’s an agreed statement of facts that are sought to be relied upon by my client…
…
HER HONOUR: All right, thank you. Thank you. [Counsel for the husband], it says “agreed statement of facts,” are you content with the matter proceeding that way?
[Counsel for the husband]: Yes, they were prepared by my learned friend and myself.
HER HONOUR: Okay, so you have no issue that with the proposal that the [wife] can get in the witness box, adopt this as the agreed statement of facts, and we proceed that way?
[Counsel for the husband]: That’s right.
(Transcript 22 July 2024, p.2 lines 8–11 and lines 22–31)
The wife then gave oral evidence affirming the agreed facts, without objection by the husband. During her cross-examination by the husband’s counsel, the parties’ use of agreed facts was again emphasised by the primary judge, who said this:
HER HONOUR: … it has been made abundantly clear to me that your affidavits aren’t being relied on today. What we’re working off is this more streamlined approach of the agreed statement of facts. All right.
(Transcript 22 July 2024, p.12 lines 22–24)
In the appeal, the husband did not identify any evidence given by the wife which would have been properly objectionable and inadmissible even if he had taken the point.
The second complaint is rejected because no objection was raised by the husband to the exhibit, which was tendered during his oral evidence. The transcript reveals these exchanges between the primary judge and the husband’s counsel at that point:
HER HONOUR: No, I appreciate that. Do you want me to get me – do you want me to give you a couple of moments just to speak to your client to see whether he objects to them being tendered?
[Counsel for the husband]: Well - - -
HER HONOUR: And if so, then as I said – this is why I wanted it done earlier.
[Counsel for the husband]: If I may, your Honour. And I don’t want to interrupt - - -
HER HONOUR: Yes.
[Counsel for the husband]: - - - but this may assist. The witness has acknowledged (sic) that it is his email address on the documents. If they’re tendered on the basis of “emails forwarded to the husband’s email address” - - -
HER HONOUR: Yes, okay.
[Counsel for the husband]: - - - I don’t see that as being objectionable - - -
(Transcript 22 July 2024, p.27 line 35 to p.28 line 7)
The third complaint is rejected because, once the wife closed her case, her counsel conceded the husband could not be cross-examined unless he elected to give evidence. At that point, the husband did not submit the wife failed to prove any contravention. He then voluntarily gave evidence in his defence in an apparent attempt to demonstrate a reasonable excuse for the contravention. The transcript reveals these exchanges:
[Counsel for the wife]: Well, my instructions are that I do want to cross-examine.
HER HONOUR: But I suppose if he’s not being put in the witness box, that makes it impossible.
[Counsel for the wife]: Well, it does make it impossible. And I can’t compel.
HER HONOUR: No, that’s true.
[Counsel for the wife]: So - - -
HER HONOUR: All right. Okay. Well, [counsel for the husband], you’re not putting your client in the witness box, you’re not adducing any evidence from him?
[Counsel for the husband]: Other than, as I said earlier, your Honour, he adopts the statement of agreed facts, which is its purpose, obviously. And although it’s not in the statement, he acknowledges that the correspondence referenced was forwarded to him. There’s not common ground on what was in the correspondence, obviously they’re not before the court, but he accepts that material was sent to him and part of that material included documents purporting to be transfers and so on.
HER HONOUR: Okay, well does he not need to go in the witness box just to acknowledge those things?
[Counsel for the husband]: As I said, your Honour, he is certainly willing to do that.
HER HONOUR: Well, I think so.
[Counsel for the husband]: I don’t cavil with that, your Honour.
…
HER HONOUR: Yes. All right. Well, if you’re – I think that the appropriate way to go forward is for your client to give the evidence that he agrees with these agreed statement of facts, and then it will be open to [counsel for the wife] to ask him some questions.
[Counsel for the husband]: I’m in your Honour’s hands, of course.
(Transcript 22 July 2024, p.17 line 32 to p.18 line 13; p.19 lines 21–25)
The primary judge’s observations at that juncture about the “appropriate way to go forward” did not bind the husband. He could have abstained from giving evidence in his defence had he wished. He was not “compelled” to do so, as the ground falsely alleges. The ground and the submissions made in support of it were an egregious exaggeration.
The fourth complaint is also rejected as the husband was not obliged to give sworn evidence adopting the agreed facts. He elected to do so. His subsequent prevarication over the agreed facts during evidence-in-chief aroused more interest than it quelled. Once the husband elected to give evidence in his defence then, subject to any valid objection to the questions he was asked, he was amenable to cross-examination and was obliged to answer the questions (s 27 of the Evidence Act 1995 (Cth) (“the Evidence Act”)).
As it transpired, despite equivocating about his receipt of multiple past emails from the wife requesting his compliance with Order 1, the husband conceded her emails were not merely sent by her, but were sent to his correct email address. His counsel had these exchanges with the primary judge:
[Counsel for the husband]: Other than, as I said earlier, your Honour, he adopts the statement of agreed facts, which is its purpose, obviously. And although it’s not in the statement, he acknowledges that the correspondence referenced was forwarded to him. There’s not common ground on what was in the correspondence, obviously they’re not before the court, but he accepts that material was sent to him and part of that material included documents purporting to be transfers and so on.
…
HER HONOUR: That – I think that’s absolutely right. So rather than – okay, yes. I think that’s – because he does acknowledge that that is indeed his email address that they – all three seem to have been sent to. All right. So I will tender them…
(Transcript 22 July 2024, p.17 line 46 to p.18 line 4; p.28 lines 21–23)
The fifth complaint is rejected for the same reason. Once the husband elected to give evidence, the wife was free to cross-examine him as she saw fit, provided the questions were posed courteously and were relevant to the outcome of the dispute (Pt 2.1, Divs 3–5 and Pt 3.1 of the Evidence Act).
The last complaint is rejected because it is not one which engages the doctrine of procedural fairness, which doctrine concerns only the fairness of the process, not the fairness of the result (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). The findings made against the husband, given the applicable legal principles and the available factual evidence, were either open or not. It was not contended they were not.
Next, Ground 3(c) alleges the primary judge misapplied r 1.15 of the Family Law Rules 2004 (Cth) (“the 2004 Rules”).
The primary judge said this in the reasons for judgment in Dobbs & Dobbs (No 3):
41.There is no time for compliance expressed in the order made by [named judge], and the order does not particularise what action the [husband] is to take to effect a transfer of his interest in the property to the [wife].
42.At the time the orders were made rule 1.15 of [the 2004 Rules] provided:
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
The husband’s complaint that the primary judge “failed to properly assess” whether he complied with the February 2018 orders “as soon as practicable” after they were made, as required by r 1.15 of the 2004 Rules, is rejected. Her Honour recounted the husband’s submissions of how it was impossible, or at least impracticable, to transfer the property to the wife for 17 months after the orders were made (at [43]–[45]) and rejected the arguments in the face of his concession that he consciously decided he would not do so (at [46] and [48]–[54]).
The finding of the husband’s conscious decision to abstain from transferring the property to the wife is certainly correct. He said in cross-examination he would not transfer the property to the wife until an alleged loan due to his mother was repaid. He said this:
[The husband]: … But my position is also I was subject to obligations under a loan agreement to my mother in respect of that caveat and in respect of the transfer of the property, that there would be no transfer until the loan had been repaid.
…
HER HONOUR: … why didn’t you just sign it, and then she could go to try to register it and then the registrar of titles will tell her there’s a caveat. But why didn’t you just take the step and sign the transfer document?
[The husband]: Because the loan agreement itself said there would be no transfer – there is to be no transfer. We were under obligation to my mother. The provisions of the loan agreement which I believe we’re putting in, say there’s to be no transfer of that property until the loan and all monies are fully repaid.
(Transcript 22 July 2024, p.28 line 41–44; p.31 lines 38–44)
Next, Ground 4(b) alleges the primary judge erred by misapplying s 140 of the Evidence Act. It was asserted the primary judge did not “adequately” consider the gravity of the allegation made against the husband or the “higher standard of proof required in quasi-criminal proceedings”, which submissions are rejected.
The husband was defending a contravention application which, being a civil proceeding under Pt XIIIA of the Act, only needed to be established on the balance of probabilities. The structured conduct of contravention hearings in a quasi-criminal way pursuant to r 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) does not convert a civil cause to a criminal prosecution. The quasi-criminal procedure employed in hearings of contravention applications is only to ensure procedural fairness to the respondent who is at risk of some form of penalty.
The husband’s counsel made this submission to the primary judge:
[Counsel for the husband]: … and as the court will be aware, the standard is higher than the mere balance of probabilities…
(Transcript 22 July 2025, p.35 lines 10–11)
The submission was correctly rejected by the primary judge in the reasons for judgment in Dobbs & Dobbs (No 3), saying:
15.The requisite standard of proof is the balance of probabilities, as set out in s 140(1) of [the Evidence Act]. As is provided in s 140(2), in determining whether I am satisfied on the balance of probabilities, I may take into account the nature of the cause of action or defence, the nature of the subject matter and the gravity of the matters alleged.
We reject these following similar submissions made by the husband in the appeal:
21.4The trial judge erred by making a contravention finding without proving intent beyond reasonable doubt…
…
22.4 …
•The standard of proof in contravention proceedings is higher than the balance of probabilities (Briginshaw v Briginshaw [1938] HCA 34).
(Emphasis in original)
As the primary judge correctly identified, the civil standard of proof applied per force of s 140 of the Evidence Act, the terms of which provision envisage the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of the fact sought to be proven. That is the common law (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170–171; Briginshaw v Briginshaw (1938) 60 CLR 336) and it remains so in federal proceedings because the statutory provision emulates the common law (Qantas Airways Ltd v Gama (2008) 247 ALR 273 at 306 and 312).
Lastly, Ground 4(a) alleges the primary judge erred by misapplying s 112AB and s 112AC of the Act. The Act defines what it means for an order to be contravened (s 112AB), which element of the alleged contravention the applicant must prove, and what a reasonable excuse for contravening an order means (s 112AC), which defence the respondent bears the burden of proving. The two burdens must not be conflated. The primary judge correctly applied those provisions by finding the husband contravened the relevant order by making no reasonable attempt to comply with it until July 2019 (at [46]–[49]) and by then finding he had no reasonable excuse for not complying with it (at [52]–[54]).
The husband’s submissions in the appeal focussed upon the primary judge’s alleged failure to properly find he intentionally failed to comply with Order 1, but the complaint is mistaken.
Relevantly, s 112AB(1)(a) of the Act provides:
(1)A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order…
The definition is disjunctive and satisfied by proof of either limb. Here, the primary judge found the elements of second limb under s 112AB(1)(a)(ii) were satisfied, saying this in Dobbs & Dobbs (No 3):
46.It was not the [husband’s] evidence that he did not understand what his obligations were under the order. Importantly, he did not suggest he did not know he was required to sign a transfer of land document to comply – at least in part – with the order. Rather, it was his evidence that he determined not to sign the transfer of land as the loan agreement required there be no transfer of the property until the loan was repaid.
…
47.As set out, pursuant to s 112AB of the Act, the [husband] will be taken to have contravened the order only if he has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
48.I find that the [husband] made no reasonable attempt to comply with the order.
49.The order is sufficiently clear as to the obligations it imposed on the [husband] – he was required to transfer his interest in the property to the [wife]. That required him to sign a transfer of land document. He did not sign a transfer of land until 16 July 2019 despite requests by the [wife] for him to attend to this. He made no reasonable attempt to sign the transfer until July 2019. Whilst the transfer could not have been registered until the caveat had been removed, the fact of the caveat did not, in my view, relieve the [husband]of the obligation to sign the transfer of land in an attempt to comply with the order.
(Emphasis added)
Having found the provisions of s 112AB(1)(a)(ii) satisfied, the primary judge had no need to be additionally satisfied of the elements within s 112AB(1)(a)(i).
The hearing on 14 October 2024 and the order made on 15 October 2024
The primary judge made these orders on 15 October 2024 to conclude the contravention proceeding:
1. The [husband] be fined $7,825.
2. The contravention application filed 22 January 2020 be otherwise dismissed.
Ground 1(d) alleges the husband was denied procedural fairness during the hearing conducted on 14 October 2024, which was particularised to mean: first, his submissions on penalty were “curtailed”; and secondly, the primary judge did not “adequately consider” the explanations of his conduct.
As to the first complaint, it is rejected as being patently false because the husband exhausted his submissions. Having initially heard the wife’s submissions on sanction, the primary judge then invited submissions from the husband. At their apparent conclusion, the primary judge asked the husband whether he was finished, to which he answered affirmatively. The exchange between them ended this way:
HER HONOUR: All right. Okay. Thank you. They’re your submissions?
[The husband]: Yes, your Honour.
(Transcript 14 October 2024, p.6 lines 11–13)
The second complaint is without merit because her Honour listened to the husband’s oral submissions – so he was heard. As noted above, the doctrine of procedural fairness is concerned only with the fairness of the process, not the fairness of the result. The husband’s evident dissatisfaction with the primary judge’s lack of persuasion by his submissions does not engage the doctrine of procedural fairness.
Ground 5 alleges the primary judge erred “in law and fact”, which statement is misleading because the lengthy sub-grounds then all allege discretionary errors made in the assessment of the seriousness of the contravention and the imposition of a disproportionate penalty.
Context is vitally important to the consideration of this ground because, as was observed in Galvis & Galvis (2024) FLC 94-200 at [49]:
The imposition of penalty is an exercise of discretion (Dinsdale v The Queen (2000) 202 CLR 321 at 324–326, 329 and 339–340), involving “a process of instinctive synthesis of multiple factors” (Stanley v DPP (NSW) (2023) 407 ALR 222 at [59]).
The maximum available penalties for the contravention ranged between imprisonment for 12 months (s 112AE), a good behaviour bond of two years duration (s 112AF), and a maximum fine of 60 penalty units (s 112AD(2)(c)). Here, the husband was fined 25 penalty units, so the penalty is not ostensibly a manifestly unreasonable exercise of discretion.
Disregarding the glib and gratuitously offensive allegation of the primary judge’s abdication of judicial duty by disregarding the concept of equality before the law (Ground 5(b)(ii)) – the more specific errors alleged by the sub-grounds were: over-estimating the seriousness of the contravention and imposing a disproportionately severe penalty (Ground 5(a)); placing undue weight upon the husband’s professional status (Ground 5(b)); failing to give sufficient weight to mitigating factors (Ground 5(c)), and failing to have regard for the wife’s inaction which could have cured the consequences of the contravention sooner (Ground 5(d)).
As to Ground 5(a), the husband’s contravention persisted for 17 months, for which he was fined less than one-half of the maximum fine available and the other sanctions which threatened his liberty were not considered. His submissions about the over-estimation of the objective severity of his contravention and the unduly severe penalty imposed were really just expressions of his bare opinion, which are rejected.
With respect to Ground 5(b), the primary judge said this of the husband’s professional status in Dobbs & Dobbs (No 4):
12.In my view this is a serious matter – although not to the extent that a maximum penalty is appropriate. Rather, I am satisfied that the fine should be 25 penalty units. Court processes must be protected, and litigants need to know that court orders will be enforced, and compliance with them, in a timely manner, is a requirement. I note further that the [husband] is a [legal practitioner]. That he delayed in signing the transfer document is, in my view, more significant given that he is an officer of the court.
(Emphasis added)
In relation to that observation the husband wrongly submitted this:
26.1The trial judge improperly considered the [husband’s] professional status as a [legal practitioner] as an aggravating factor in determining the penalty.
…
26.4The trial judge erred by unfairly increasing the penalty based on the [husband’s] professional background, breaching fundamental principles of equality before the law.
(Emphasis in original)
The mistaken premise of this complaint is that the primary judge increased the penalty imposed upon the husband on account of his professional status. Instead, her Honour correctly found the husband’s commission of the contravention to be “significant” when, as a legal practitioner, he ought to have known better than to breach court orders. His status therefore inferentially precluded additional leniency being extended to him, but his status was neither used to aggravate the objective seriousness of the contravention nor to increase the penalty imposed for it. There was nothing unprincipled about that discretionary approach. The personal circumstances of an offender can never aggravate the objective seriousness of an offence, but may exclude or minimise the scope for leniency (Veen v The Queen (No 2) (1988) 164 CLR 465 at [14]).
In relation to Ground 5(c), the husband nominated the mitigating factors which allegedly received insufficient weight as being these in his Summary of Argument: his compliance with Order 1, the lack of risk he would re-offend, and the wife’s delay in registering the transfer.
The first point is not a mitigating factor. The husband’s eventual compliance with Order 1 after 17 months of contravention finally brought his disobedience to an end, but it did not mitigate his preceding prolonged disobedience.
The second point is obviously false because the primary judge expressly found such mitigation in the husband’s favour, saying this in the reasons for judgment in Dobbs & Dobbs (No 4):
9.I am not satisfied that requiring the [husband] to enter a bond is an appropriate sanction. There seems little likelihood of re-offending…
(Emphasis added)
The third point spills into Ground 5(d), to understand which it is necessary to know that, in May 2019, an order was made by a registrar under s 106A of the Act permitting a registrar to sign a registrable transfer on the husband’s behalf to enable the transfer of the property to the wife. She did not immediately resort to the use of that procedural order by having the registrar sign the transfer because the husband reviewed the registrar’s decision and sought to have the s 106A order discharged. It was not until July 2019 that the husband finally signed the transfer, following the dismissal of his application to discharge the s 106A order.
The husband’s audacious submission before the primary judge was that the wife’s inactivity in the few months between May 2019 and July 2019 justified no sanction being imposed upon him for his contravention between February 2019 and July 2019. The husband submitted this to the primary judge:
[The husband]: Well, the only other comment I could – I would like to just – a matter I would like to refer to which was referred to at the hearing was that [the wife] held a section 106A order since 15 May 2019. So it was within her power to have that signed regardless. In the circumstance, I submit that no penalty is appropriate, your Honour, because of the circumstances surrounding the events the subject of the contravention.
HER HONOUR: All right. Okay. Thank you. They’re your submissions?
[The husband]: Yes, your Honour.
(Transcript 14 October 2024, p.6 lines 4–13)
The primary judge recorded the gist of that submission in the reasons (at [7]), but evidently did not accept it, saying this in Dobbs & Dobbs (No 4):
8.I am satisfied in this matter that it is appropriate for a sanction to be imposed, given the length of the delay between the making of the order and the [husband’s] compliance with it. As set out in my previous judgment, the [husband] made no reasonable attempt to comply with the order between it being made in February 2018 and 16 July 2019. He did not sign the transfer – which was a necessary step in the process towards the property being transferred to the [wife] – for about 17 months. He was obliged to sign the transfer as soon as practicable, and he did not do so.
…
12.In my view this is a serious matter – although not to the extent that a maximum penalty is appropriate. Rather, I am satisfied that the fine should be 25 penalty units…
There was no error in rejecting the husband’s submission. Perhaps the wife could have tried to ameliorate the effects of his contravention once the s 106A order was made in May 2019, though it is doubtful a registrar would have signed the transfer knowing his application to discharge the s 106A order was still pending. Regardless, the husband’s contravention for 17 months was not negated by the elapse of three months while he chose to contest the status of the s 106A order. When determining penalty, the primary judge did not overlook the husband’s submission the wife could have availed of the s 106A order from May 2019 (at [7]).
DISPOSITION
The appeal is dismissed.
The wife was self-represented so no question of costs arises.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann & Williams JJ . Associate:
Dated: 10 March 2025
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