Dobbs & Dobbs (No 3)
[2024] FedCFamC1F 535
•13 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dobbs & Dobbs (No 3) [2024] FedCFamC1F 535
File number(s): MLC 8793 of 2015 Judgment of: CARTER J Date of judgment: 13 August 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where the applicant asserts the respondent contravened an order made on 15 February 2018 requiring him to transfer his interest in a real property to the applicant – Where it is common ground the respondent did not sign a transfer of land document between the making of the order for transfer and mid-2019 – Where there was at all relevant times a caveat registered on title that would have prevented the transfer being registered – Where the Court is satisfied that the contravention is established as the respondent took no reasonable steps to comply with the order – Where the Court is satisfied the respondent has not established a reasonable excuse – Matter adjourned for further hearing on the question of sanction. Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 112AA, 112AB, 112AC
Family Law Rules 2004 (Cth) (superseded) r 1.15
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 22 July 2024 Place: Melbourne Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Cohen Lawyers Counsel for the Respondent: Mr Byrne Solicitor for the Respondent: RRR Lawyers 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:
13 AUGUST 2024
THE COURT DECLARES THAT:
1.The respondent, MR DOBBS, 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 mid-2019.
THE COURT ORDERS THAT:
2.The Contravention Application filed 22 January 2020 be adjourned to 14 October 2024 at 10.00 am for further hearing before the Honourable Justice Carter.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The only matter for determination by the Court is Count 3 of the applicant wife’s Contravention Application filed 22 January 2020.
Count 3 is pleaded as follows:
3.Respondent Contravene Order 1 of 15 February 2018 by His Honour Justice Cronin. He continued to ignore Final Court Orders for 17 months causing me significant financial loss and emotional trauma.
(As per the original)
The count as drafted refers to the respondent ‘ignoring Court orders for 17 months’. Accordingly, the period of alleged breach ended mid-2019.
Order 1 of the orders made 15 February 2018 provides as follows:
(1)That the husband transfer to the wife all of his interest in the house at [B Street], [Suburb C].
The respondent denied the charge.
THE EVIDENCE
The applicant did not rely on her affidavits filed 22 January 2020 or 24 April 2024 in support of her application. They were lengthy, and contained considerable material that was not relevant to the matter before the Court. Rather than undertaking the tedious and time‑consuming process of objections, the parties very sensibly prepared a statement of agreed facts, which the applicant adopted as her evidence in chief.
I was advised the respondent conceded that the correspondence referred to in the statement of agreed facts had been sent to him. However, when giving his evidence the respondent did not admit that the specific correspondence had been sent. He also would not concede the attachments referred to in the correspondence had been forwarded. He said there was a lot of correspondence at that time, and he could not specifically recall these particular communications.
The correspondence the applicant asserted was forwarded to the respondent on 24 April 2018 and 11 May 2018 was not able to be located. Similarly, the applicant was unable to locate the correspondence she asserted she sent to the respondent on 11 and 18 January 2019. The emails dated 15 August 2018, 2 September 2018 and 23 October 2018 were located and tendered into evidence.
Both the applicant and respondent gave evidence.
The respondent was not an impressive witness. He prevaricated as to whether he would or would not accept that the emails from the applicant had been received by him. He said he could not recall receiving the emails, but he did accept they appeared to have been sent to his email address. He did not accept that the emails included the documents they said were attached as he was unable to recall receiving the emails. As a general principle, the respondent acknowledged having received emails from the applicant. However, on several occasions in his oral evidence he referred to the applicant as having sent him abusive emails, which he said he took to the police. I do not understand the relevance of that evidence. The respondent also acknowledged there would have been correspondence from the applicant’s solicitors regarding the property, but he would not admit – without seeing the correspondence – that there were calls for him to transfer the property.
Conversely, the applicant gave her evidence in a clear and direct manner.
THE LEGAL PRINCIPLES
The application is brought under Part XIIIA of the Family Law Act 1975 (Cth). There is no controversy that the orders which the applicant asserts were breached are orders under this Act within the meaning of s 112AA.
Section 112AB of the Act provides that a person will only be taken to have contravened an order if the person bound by the order intentionally failed to comply with the order or made no reasonable attempt to comply with it. It is the applicant who must satisfy the Court that the order has been contravened.
Section 112AC provides that a person may have a reasonable excuse for contravening an order if they did not understand the obligations the order imposed, and the Court is satisfied they ought be excused in respect of the contravention. A person may be able to satisfy the Court as to other matters or circumstances that amount to a reasonable excuse. It falls to the respondent to establish that he had a reasonable excuse.
The requisite standard of proof is the balance of probabilities, as set out in s 140(1) of the Evidence Act1995 (Cth). 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.
RELEVANT CHRONOLOGY
On 13 April 2008 the parties executed a loan agreement in favour of the respondent’s mother. Pursuant to the terms of that agreement, the respondent’s mother loaned the parties $300,000. Interest was to be paid quarterly. Curiously, the agreement provided that the loan would be interest only for three years and thereafter the principal was to be repaid – with the date for repayment given as 27 February 2010 (being a period of less than two years from the date of the agreement). No explanation was given for this inconsistency.
The loan agreement provided that the parties authorised the respondent’s mother to lodge a caveat over the property at B Street as security. Clause 6 provided:
Should the Borrowers wish to sell or transfer the property, they shall either:
(a) Repay the Principal Sum and interest monies in full; or
(b) Provide the Lender with similar security over another property.
It was the respondent’s case that his mother had not been repaid and that at the time of the hearing before Cronin J the sum of $9,000 remained outstanding.
It was the applicant’s evidence that the parties refinanced with the bank in early 2009 and repaid the respondent’s mother in full. The applicant said she then asked the respondent’s mother to sign a withdrawal of caveat, which she did on 29 May 2009. That signed withdrawal form was tendered into evidence. I note the respondent’s evidence was that the signature “doesn’t look like my mother’s” and he queried whether it was a genuine document. It is implicit in that answer that the respondent was suggesting a potential fraud on behalf of the applicant. That would be a serious allegation to make. It was not put to the applicant under cross-examination.
The withdrawal of caveat form was not lodged at the Titles Office prior to the final orders being made. Accordingly, the respondent’s mother’s caveat remained in place. It was the applicant’s case that at the time the final orders were made, she was unaware that the caveat had not been removed.
I accept the applicant’s evidence regarding the repayment of the monies to the respondent’s mother, and that the withdrawal of caveat was signed by the respondent’s mother. The applicant was not challenged under cross-examination regarding the authenticity of the withdrawal of caveat.
I further accept the applicant believed that the executed withdrawal of caveat had been actioned.
There was no reference in the judgment of Cronin J that there was any caveat lodged over B Street. Nor did his Honour refer to any other issue that might have impeded the respondent transferring his interest in that property to the applicant. Similarly, there was no reference in his Honour’s judgment to monies owed to the respondent’s mother. In his oral evidence the respondent admitted he did not raise the allegation that funds remained owing to his mother at the hearing before Cronin J.
These matters add weight to the applicant’s evidence that the monies had been repaid and nothing further was owed to the respondent’s mother as at the time of the final hearing. The respondent’s silence as to these matters at a final hearing is otherwise very difficult to understand.
It was common ground that the respondent’s interest in the house at B Street was not transferred to the applicant between the making of the orders and 16 July 2019. Nor did the respondent sign any transfer of land document before 16 July 2019.
On 15 March 2018 the respondent appealed the orders of Cronin J. His Honour’s orders were not stayed pending the appeal.
I am satisfied that the applicant sent correspondence to the respondent on 15 August 2018 attaching documents for the respondent to sign being a discharge of mortgage and a transfer of land.
I am satisfied the respondent did not respond to that correspondence.
The appeal was heard on 28 August 2018. On appeal the respondent challenged the percentage adjustment pursuant to s 75(2) of the Act determined by his Honour. The respondent did not assert to the Full Court that there was any impediment to the property being transferred, such as a caveat being lodged on title, or that there were any monies owing to his mother.
I am satisfied the applicant sent correspondence to the respondent on 2 September 2018 referring to her earlier email and advising she had not received the executed documents from him. She requested that he comply with the final orders and sign the forms.
I am satisfied the respondent did not respond to that correspondence.
The appeal was dismissed on 10 September 2018.
I am satisfied the applicant sent further correspondence to the respondent on 23 October 2018 attaching a mortgage discharge document for B Street. She again asked him to comply with the orders and sign the document.
I am satisfied the respondent did not respond to that correspondence.
The respondent signed documents that would enable the transfer of the property to the applicant at Court on 16 July 2019.
At that time, the respondent’s mother’s caveat remained on title. As best as I can tell, the caveat was not withdrawn until sometime in 2020 or thereafter.
HAS THE ORDER BEEN CONTRAVENED?
The respondent denied he had contravened the order as asserted by the applicant.
It was his case that:
(a)the order as drafted is deficient; and
(b)the failure of the property to be transferred to the applicant between the making of the orders and [mid] 2019 was not as a result of his contravention of the orders but was a consequence of the parties still owing monies to his mother, the terms of the loan agreement, and the fact that his mother’s caveat had not been removed. Accordingly, he argued it was beyond his power to comply with the order and transfer his interest in the property.
It was his case therefore that the contravention must fail.
In the event that the Court was satisfied the order had been contravened, it was asserted these matters would provide a reasonable excuse.
Discussion
There is no time for compliance expressed in the order made by Cronin J, and the order does not particularise what action the respondent is to take to effect a transfer of his interest in the property to the applicant.
At the time the orders were made rule 1.15 of the Family Law Rules 2004 (Cth) 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.
It was submitted by counsel for the respondent that it was never “practicable” to effect a transfer of land in the 17 months after the orders were made because:
(a)at all relevant times his mother had a caveat registered on the property, thereby preventing any transfer being effected; and
(b)the loan agreement between the parties and his mother required the monies to be repaid, or similar security to be provided over another property in the event the parties wished to transfer the property and accordingly, he could not execute a transfer document without breaching the loan agreement and impacting the rights of a third party.
It was further asserted by counsel for the respondent that the contravention cannot be made out because the existence of the caveat and the terms of the loan agreement meant it was not at any relevant time within the respondent’s “sole power” to bring about the outcome contemplated by the order: had the applicant received the executed transfer from the respondent and attempted to lodge it, it is common ground that the transfer would not have been registered pending the withdrawal of caveat.
Counsel for the respondent asserted the order was deficient in that it did not set out with particularity the steps the respondent was to undertake to give effect to the order. Clearly, the order did not refer to the respondent having to attend to the removal of a caveat or the repayment of any monies to the respondent’s mother as pre-conditions to the transfer. This is not surprising in light of the respondent’s concession that his assertion that his mother was owed money had not been raised during the hearing before Cronin J. As already observed the failure by the respondent to raise these issues before Cronin J is curious. As already set out, I accept the evidence of the applicant that she understood the loan had been repaid and the caveat removed prior to the final hearing.
It was not the respondent’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.
Determination
As set out, pursuant to s 112AB of the Act, the respondent 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.
I find that the respondent made no reasonable attempt to comply with the order.
The order is sufficiently clear as to the obligations it imposed on the respondent – he was required to transfer his interest in the property to the applicant. That required him to sign a transfer of land document. He did not sign a transfer of land until mid-2019 despite requests by the applicant for him to attend to this. He made no reasonable attempt to sign the transfer until mid-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 respondent of the obligation to sign the transfer of land in an attempt to comply with the order.
When asked what steps he had taken to transfer the property prior to 16 July 2019 the only action the respondent referred to was that – as far as he could recall – he had ‘raised the question of the monies owed’ to his mother with her. He gave no other particulars as to that conversation. Some vague evidence that he recalled raising the issue of monies owed with his mother falls well short of a reasonable attempt to comply with the order.
It was not sufficient that the respondent remained silent, and now seeks to rely on the terms of the loan agreement and the fact that the caveat remained on title as impediments ‘beyond his control’ that prevented the transfer from occurring in accordance with the orders of Cronin J. He was obliged to take steps to comply with the order, and he did not do so. It was not up to the respondent to decide he would not sign the transfer because he knew the transfer could not be registered until his mother’s caveat was removed. It was also not up to the respondent to determine the provisions of the loan agreement would take precedence over the orders of this Court and thus refuse to execute the transfer of land.
I do not find that the respondent had a reasonable excuse for contravening the order. I am satisfied the respondent knew what his obligations were under the order, and he made no reasonable attempt to comply with the order. He did not respond to the applicant’s requests that he sign the transfer of land. He did not remind the applicant that there was a caveat lodged on the title or tell her that he believed his mother was still owed money. He simply ignored the applicant’s repeated requests.
It is not, in my view, sufficient for the respondent to assert he could not sign the documents as a result of the loan agreement terms, and simply not raise this with the applicant. It was also not open to the respondent to prioritise the obligations pursuant to the loan agreement over his obligations pursuant to orders of this Court and to remain silent about his choice in doing so. That there may have been a conflict between the respondent’s obligation under the order and his obligations pursuant to a term of the loan agreement cannot provide the respondent with a reasonable excuse in circumstances where he failed to raise this issue with the trial Judge, and then subsequently with the applicant.
Similarly, that the caveat would have impeded the registration of the transfer does not provide the respondent with a reasonable excuse for his failure to sign the transfer of land. Any issues with the registration of that transfer could have been dealt with more promptly by the applicant and brought to the attention of the Court.
The respondent made no effort to explain the rationale behind his non-action to the applicant at the time. His evidence was that he could not recall having made contact with her solicitors about executing the transfer of land shortly after the orders were made. He acknowledged he did not contact the applicant directly. The respondent said he did not contact the applicant about the potential issues once she became self-represented because he was concerned he would potentially breach the Intervention Order. I do not accept that explanation as he should have arranged for a lawyer to communicate with her regarding what he asserted were the issues.
For these reasons I make the orders as set out herein.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 13 August 2024
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