Dobbs & Dobbs (No 2)

Case [2024] FedCFamC1F 349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349

File number(s): MLC 8793 of 2015
Judgment of: CARTER J
Date of judgment: 24 May 2024
Catchwords: FAMILY LAW – CONTRAVENTION – Where one count has been remitted in which it is asserted that the respondent delayed transferring his interest in a real property to the applicant – Where the respondent made an oral application that the one remaining count be struck out or summarily dismissed – Where there has been compliance with the order – Whether the Contravention Application is an abuse of process – Whether there are no reasonable prospects of success of the Contravention Application – Whether there are deficiencies in the pleading – Oral application dismissed.   
Legislation:

Family Law Act 1975 (Cth) ss 45A, 112AD

Family Law Rules 2004 (Cth) rr 10.2, 22.38

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:

Gravis & Major [2010] FamCAFC 239

In the marriage of Davis, C.K. and Davis, P.M. (1976) FLC 90-050

In the marriage of Tudor, H and Tudor, PJ (1992) FLC 92-273

King & King [2023] FedCFamC1A 36

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531

Lindon v Commonwealth (No 2) (1996) 136 ALR 251

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

Division: Division 1 First Instance
Number of paragraphs: 80
Date of hearing: 29 April 2024
Place: Melbourne
Counsel for the Applicant: Mr Kelly
Solicitor for the Applicant: Cohen Lawyers
Counsel for the Respondent: Mr Cenacchi
Solicitor for the Respondent: TechComm Legal

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:

CARTER J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT:

1.The oral application by the respondent that count 3 of the Contravention Application filed 22 January 2020 be struck out and/or summarily dismissed is dismissed.

2.The matter be adjourned to 1 July 2024 for a one-day hearing commencing at 10.00 am.

3.By no later than 4.00 pm on 3 June 2024 the applicant file and serve a list identifying which paragraphs of her affidavits filed 22 January 2020 and 24 April 2024 upon which she seeks to rely at the hearing.

4.In the event that either party wishes to file written submissions, these shall be filed and served by 4.00 pm on 27 June 2024 and shall not exceed five pages.

5.No party file any further material other than as provided by these orders without leave of the Court.

6.If the respondent takes reasonable objection to the evidence of the applicant:

(a)any objections be taken no later than 4.00 pm on 10 June 2024 by service of written notice of such objections on the applicant;

(b)the applicant notify the respondent in writing no later than 4.00 pm on 17 June 2024 of which objections are the subject of agreement and which reasonably require…

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AGLC
Dobbs & Dobbs (No 2) [2024] FedCFamC1F 349
Case
[2024] FedCFamC1F 349
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) was asked to consider an oral application made by the respondent in relation to a Contravention Application filed by the applicant. The Contravention Application was brought in relation to an appeal against final orders made in proceedings between the parties, which were subsequently dismissed. The applicant alleged that the respondent had deliberately delayed transferring his interest in a real property to her, which she claimed was in contravention of the final orders. The respondent had made an oral application that the remaining count of the Contravention Application be struck out or summarily dismissed. The Court was required to determine whether the Contravention Application was an abuse of process, whether there were no reasonable prospects of success of the Contravention Application, and whether there were deficiencies in the pleading.

The Court determined that the applicant was not estopped from bringing the Contravention Application, and that it was not appropriate to summarily dismiss or strike out the application. The Court noted that the applicant had not pursued the relief available to her as a result of the order made pursuant to s 106A of the Family Law Act, which appointed a Registrar to sign the necessary documents to effect a transfer of the property to the applicant. The Court also noted that the respondent had executed documents to enable the transfer of the property to the applicant, but there were issues with the manner in which the documents had been signed, and the bank refused to accept them. The Court found that there were no reasonable prospects of success of the Contravention Application, and that there were deficiencies in the pleading. However, the Court did not find that the Contravention Application was an abuse of process.

The oral application made by the respondent that the remaining count of the Contravention Application be struck out or summarily dismissed was dismissed. The matter was adjourned to 1 July 2024 for a one-day hearing commencing at 10.00 am. The Court made several orders in relation to the filing and service of documents, and the resolution of objections. The Court noted that an order for costs may be made on the initiative of the Court against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party, or to be thrown away, because of unreasonable conduct or undue delay.

The Court ordered that the oral application by the respondent that count 3 of the Contravention Application filed 22 January 2020 be struck out and/or summarily dismissed is dismissed. The matter was adjourned to 1 July 2024 for a one-day hearing commencing at 10.00 am. The Court made several orders in relation to the filing and service of documents, and the resolution of objections. The Court noted that an order for costs may be made on the initiative of the Court against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party, or to be thrown away, because of unreasonable conduct or undue delay.

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:

CARTER J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT:

1. The oral application by the respondent that count 3 of the Contravention Application filed 22 January 2020 be struck out and/or summarily dismissed is dismissed.

2. The matter be adjourned to 1 July 2024 for a one-day hearing commencing at 10.00 am.

3. By no later than 4.00 pm on 3 June 2024 the applicant file and serve a list identifying which paragraphs of her affidavits filed 22 January 2020 and 24 April 2024 upon which she seeks to rely at the hearing.

4. In the event that either party wishes to file written submissions, these shall be filed and served by 4.00 pm on 27 June 2024 and shall not exceed five pages.

5. No party file any further material other than as provided by these orders without leave of the Court.

6. If the respondent takes reasonable objection to the evidence of the applicant:

(a) any objections be taken no later than 4.00 pm on 10 June 2024 by service of written notice of such objections on the applicant;

(b) the applicant notify the respondent in writing no later than 4.00 pm on 17 June 2024 of which objections are the subject of agreement and which reasonably require determination; and

(c) the parties’ legal representatives who are instructed to appear at trial confer by no later than 24 June 2024 to endeavour to resolve any outstanding objections.

NOTING THAT pursuant to rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an order for costs may be made on the initiative of the Court against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party, or to be thrown away, because of (inter alia) unreasonable conduct or undue delay.

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).

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

Background

Background to the litigation

For the reasons I now set out I have determined the applicant is not estopped from bringing the application. Nor is it appropriate to summarily dismiss or strike out the Contravention Application. I will list it before me for hearing on 1 July 2024. BACKGROUND As set out, final orders were made on 15 February 2018. On 15 March 2018 the respondent appealed the final orders. That appeal was heard on 28 August 2018, and dismissed on 10 September 2018, with the respondent to pay the applicant’s costs of $15,000. The respondent did not execute any transfer documents whilst his appeal was on foot. The applicant asserts that following the appeal being dismissed the respondent still did not transfer his interest in the property to her – and that he deliberately delayed doing so, at significant detriment to her. In the face of the alleged continuing non-compliance, the applicant filed a Contravention Application on 5 April 2019. The applicant drafted that application herself. She relevantly asserted as follows:1.[The respondent] Contravene the Final Court Order 1 of the Family Court post trial dated February 2018 by His Honour Justice Cronin. He continued to ignore Court Order prior to his Appeal and even after his Appeal, caliming that His Honour was wrong, was dismissed by the High Court, he still continues to deliberately ignore Final Court Orders.…Statement of the alleged contravention[The respondent] is in breach of Final Family Court Orders and deliberately refuses to comply per the evidence provided in the Affidavit…(As per the original) The 5 April 2019 Contravention Application was listed before the Court on 15 May 2019. At that time an order was made appointing a Registrar pursuant to s 106A of the Family Law Act to sign the necessary documents to effect a transfer of the property to the applicant. The matter was otherwise adjourned to 16 July 2019. I do not know why the applicant did not pursue the relief available to her as a result of the order made pursuant to s 106A of the Family Law Act. On 16 July 2019 the matter was listed before Johns J. Amongst a number of orders made that day, the applicant was also given leave to withdraw her 5 April 2019 Contravention Application in circumstances where the respondent had executed at Court that day a number of documents to enable the transfer of the property to the applicant. There was no hearing of the Contravention Application on its merits. The property was still not then transferred to the applicant. It is the applicant’s evidence that there were issues with the manner in which the respondent had signed the documents, and the bank refused to accept them. The applicant then filed a further Contravention Application on 22 January 2020. This is the Contravention Application currently before the Court. As set out, count 3 in that contravention concerned the respondent’s asserted delay in transferring his proprietary interest in the property to the applicant. There were a number of hearings – and appeals – with the Full Court ultimately determining in relation to count 3 that it needed to be remitted for hearing. There was a convoluted procedural history regarding this count summarised as follows:(a)there were hearings in July and August 2020 before one judge, which resulted in a finding that the respondent had without reasonable excuse contravened the order requiring him to transfer his interest in the property to the applicant;(b)the matter was transferred from that first judge to another judge. It appears it was intended the second judge would re-hear the matter. However, his Honour determined his role was to only to consider an appropriate penalty following the finding of breach and not to rehear the contravention application. His Honour imposed a penalty on the respondent in orders made 12 September 2023;(c)the Full Court heard and upheld an appeal against the imposition of that penalty (determining that the respondent had been denied procedural fairness in the hearings in July and August 2020). That Full Court decision was delivered on 21 December 2023 in which count 3 was remitted for rehearing.

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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