Dobbs & Dobbs (No 3)

Case [2024] FedCFamC1F 535

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Family Law Rules 2004 (Cth) (superseded) r 1.15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

  1. The only matter for determination by the Court is Count 3 of the applicant wife’s Contravention Application filed 22 January 2020.

  2. Count 3 is pleaded as follows:

    3.Respondent Contravene Order 1 of 15…

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AGLC
Dobbs & Dobbs (No 3) [2024] FedCFamC1F 535
Case
[2024] FedCFamC1F 535
Decision Date

CaseChat Overview and Summary

In the matter of Dobbs & Dobbs (No 3), the applicant, Ms Dobbs, filed an application alleging that the respondent, Mr Dobbs, had contravened a family law order made on 15 February 2018. The order required Mr Dobbs to transfer his interest in a property to Ms Dobbs. Ms Dobbs asserted that Mr Dobbs had not signed the transfer of land document between the date of the order and mid-2019. A caveat on the property title would have prevented the transfer from being registered during this period. The case came before Carter J in the Federal Circuit and Family Court of Australia.

The central legal issues revolved around whether Mr Dobbs contravened the family law order and, if so, whether he had a reasonable excuse for his failure to comply. Under the Family Law Act 1975, a person contravenes an order if they intentionally failed to comply with it or made no reasonable attempt to comply with it. The onus was on Ms Dobbs to prove the contravention. If Mr Dobbs had a reasonable excuse, the court could excuse the contravention.

The court found that the evidence established that Mr Dobbs did not take reasonable steps to comply with the order. He did not sign the transfer document and did not provide a reasonable explanation for his inaction. The court was not satisfied that Mr Dobbs had a reasonable excuse for his non-compliance. Consequently, the court declared that Mr Dobbs had contravened the order without reasonable excuse. The contravention application was adjourned for further hearing on the question of sanction.

The court ordered that the contravention application be adjourned to 14 October 2024 at 10.00 am for further hearing before the Honourable Justice Carter. The form of the order is subject to the entry in the Court’s records.

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:

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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