Dobbs & Dobbs (No 4)
[2024] FedCFamC1F 683
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dobbs & Dobbs (No 4) [2024] FedCFamC1F 683
File number(s): MLC 8793 of 2015 Judgment of: CARTER J Date of judgment: 15 October 2024 Catchwords: FAMILY LAW – CONTRAVENTION – PENALTY – Where contravention made out – Consideration of penalty –Where the applicant sought the imposition of the maximum fine of 60 penalty units – Where the respondent sought that no penalty be imposed – Where the most appropriate sanction is a fine. Legislation: Crimes Act 1914 (Cth) ss4AA
Family Law Act 1975 (Cth) ss 112AD, 112AG
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 14 October 2024 Place: Melbourne Solicitor for the Applicant: Cohen Lawyers Counsel for the Respondent: Litigant in person 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:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The respondent be fined $7,825.
2.The contravention application filed 22 January 2020 be otherwise 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).
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
On 13 August 2024 I made a declaration that the respondent had without reasonable cause 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. The respondent had failed to execute a transfer of land in relation to a property which was to be transferred to the applicant. I adjourned the matter to 14 October 2024 for further hearing in relation to the question of penalty.
Sanctions available for failure to comply with orders
Section 112AD(1) of the Family Law Act 1975 (Cth) empowers the Court to impose such sanction or sanctions contained in s 112AD(2) as the Court considers to be the most appropriate in the circumstances.
Section 112AD(2) provides that the available sanctions are:
(a)to require the respondent to enter a bond;
(b)to impose a sentence in accordance with s 112AG;
(c)to fine a person not more than 60 penalty units; or
(d)to impose a sentence of imprisonment.
Ordinarily, the purpose of a contravention is to coerce compliance with court orders. However s 112AD(1A) also provides:
The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.
Accordingly, although the property has now been transferred into the applicant’s name, I am still empowered to impose a sanction.
The parties’ submissions
It was the applicant’s submission that the respondent should be fined 60 penalty units. It was asserted the maximum penalty should be imposed given the length of delay, the emotional trauma and financial costs the delay caused the wife.
The respondent asserted that no penalty should be imposed. He said the suggestion that the maximum penalty ought be imposed was vindictive. He said the applicant could have availed herself of the opportunity to have a Registrar sign the transfer on her behalf pursuant to s 106A (as an order to that effect had been made on 15 May 2019). He submitted further that it was not his failure to sign the transfer of land that caused the delay – and that the applicant did not actually register the transfer until 2022, some three years after he had signed the transfer.
THE COURT’S DETERMINATION
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 respondent's compliance with it. As set out in my previous judgment, the respondent made no reasonable attempt to comply with the order between it being made in February 2018 and 2019. He did not sign the transfer – which was a necessary step in the process towards the property being transferred to the applicant – for about 17 months. He was obliged to sign the transfer as soon as practicable, and he did not do so.
I am not satisfied that requiring the respondent to enter a bond is an appropriate sanction. There seems little likelihood of re–offending. The property proceedings between the parties are concluded. There are no ongoing orders in this court with which the respondent is required to comply. There is no suggestion that a sentence or term of imprisonment would be appropriate.
I am satisfied that the most appropriate sanction in all the circumstances is to impose a fine.
A penalty unit is currently $313 per unit. That is the indexed figure calculated pursuant to the formula specified in s 4AA of the Crimes Act1914 (Cth).
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.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 15 October 2024
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