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him – Where the contravention application was in the same terms as a previous contravention application the wife had withdrawn – Where the husband alleges the primary judge fell into legal error by rejecting his oral application – Where the prosecution of the contravention application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
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Details
- AGLC
- Dobbs & Dobbs (No 2) [2025] FedCFamC1A 37
- Case
- [2025] FedCFamC1A 37
- Decision Date
CaseChat Overview and Summary
In the case of Dobbs & Dobbs (No 2), the husband, Mr Dobbs, appealed against an order made by the Federal Circuit and Family Court of Australia, which fined him $7,825 for contravening a property settlement order without reasonable excuse. The litigation between the parties has a complex history, with orders made in 2018, followed by an appeal and subsequent contravention applications. The most recent contravention application, filed in January 2020, was heard and found proven in August 2020, with the imposition of sanction adjourned until November 2020. The husband's appeal from the finding of contravention was dismissed in May 2021. The husband was fined $2,500 in September 2023, but his appeal from that judgment succeeded in December 2023, leading to a re-hearing of the sanction. The primary judge, after dismissing various preliminary applications by the husband to summarily dismiss the contravention application, proceeded to the substantive hearing on 14 October 2024, and made the impugned orders on 15 October 2024.
The central legal issues in this appeal revolve around the primary judge's handling of the husband's oral applications to summarily dismiss the contravention application, the application of the principle of issue estoppel, the husband's contention of procedural unfairness, and the appropriateness of the penalty imposed. The husband argued that the primary judge erred in rejecting his oral applications, fell into legal error in finding him in breach of the property settlement order, and that the penalty imposed was disproportionate. The husband further claimed he was denied procedural fairness during the sanction hearing and that the primary judge misapplied the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth). The court found that the primary judge correctly assessed the seriousness of the contravention, did not misapply any legislation, and that the husband's complaints of procedural unfairness were unfounded as he had exhausted his submissions and was heard by the court.
The court dismissed the husband's appeal, finding that the primary judge's orders were justified and appropriate. The court held that the principle of issue estoppel did not preclude the prosecution of the contravention application, as the husband had not raised the issue of estoppel in his submissions. The court also found that the primary judge did not commit any legal error in finding the husband had contravened the property settlement order. The court rejected the husband's claims of procedural unfairness, noting that the husband had exhausted his submissions and was heard by the primary judge. Finally, the court concluded that the penalty imposed by the primary judge was not disproportionate and was within the court's discretion.
The court dismissed the appeal and made the following order: The appeal is dismissed. This order is subject to review for minor typographical or grammatical errors or to record a variation to the order in accordance with the relevant rules.
The central legal issues in this appeal revolve around the primary judge's handling of the husband's oral applications to summarily dismiss the contravention application, the application of the principle of issue estoppel, the husband's contention of procedural unfairness, and the appropriateness of the penalty imposed. The husband argued that the primary judge erred in rejecting his oral applications, fell into legal error in finding him in breach of the property settlement order, and that the penalty imposed was disproportionate. The husband further claimed he was denied procedural fairness during the sanction hearing and that the primary judge misapplied the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth). The court found that the primary judge correctly assessed the seriousness of the contravention, did not misapply any legislation, and that the husband's complaints of procedural unfairness were unfounded as he had exhausted his submissions and was heard by the court.
The court dismissed the husband's appeal, finding that the primary judge's orders were justified and appropriate. The court held that the principle of issue estoppel did not preclude the prosecution of the contravention application, as the husband had not raised the issue of estoppel in his submissions. The court also found that the primary judge did not commit any legal error in finding the husband had contravened the property settlement order. The court rejected the husband's claims of procedural unfairness, noting that the husband had exhausted his submissions and was heard by the primary judge. Finally, the court concluded that the penalty imposed by the primary judge was not disproportionate and was within the court's discretion.
The court dismissed the appeal and made the following order: The appeal is dismissed. This order is subject to review for minor typographical or grammatical errors or to record a variation to the order in accordance with the relevant rules.
Orders
Orders of the court
NAA 298 of 2024
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, 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).
Background
Background to the litigation
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).
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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