Galvan and Galvan & Ors - [2011] FamCA 1033

FAMILY COURT OF AUSTRALIA

GALVAN & GALVAN AND ORS

[2011] FamCA 1033

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Application for adjournment made during the course of final hearing – where Husband’s adult children joined as parties to the proceedings during final hearing – reduced time to finalise the proceedings – adult children unprepared to meet the case – cross-examination of one of the parties occurred before adult children were joined as parties – adjournment granted

FAMILY LAW – PROPERTY – interim arrangements – need to preserve status quo during period of adjournment – matrimonial home – Wife currently has sole occupation of matrimonial home – matrimonial home currently listed for sale – Husband’s application for both parties to reside in matrimonial home until sale completed – recent history of alleged assaults and apprehended violence between parties – adjournment and delay in proceedings was not a result of Wife’s actions – Husband’s application refused – Wife and Husband appointed as trustees for sale – injunction – adult children restrained from disposing of real property

FAMILY LAW – COSTS – Between parties – Wife’s application for costs “thrown away” as a result of joinder and subsequent adjournment of proceedings – s 117(2A) factors considered – counsel’s fees – counsel’s cancellation fee – solicitor’s fees – costs order made

Family Law Act 1975 (Cth), ss 117(1), 117(2), 117(2A)

APPLICANT:

Mr Galvan Snr

FIRST RESPONDENT:

Ms Galvan Snr

SECOND AND THIRD RESPONDENTS:

Ms Galvan Jnr and Mr Galvan Jnr

FILE NUMBER:

CAC

2010

DATE DELIVERED:

16 November 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

16 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kumar

COUNSEL FOR THE RESPONDENT:

Mr Howard

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

Mr de Robillard

Orders

IT IS ORDERED THAT:

The proceedings formally are adjourned part heard to 20 February 2012 for further hearing.

IT IS NOTED THAT:

Five days are allocated for the hearing.

IT IS FURTHER ORDERED THAT:

The second and third respondents will jointly and severally pay the first respondent’s costs of and incidental to the adjournment quantified by me, including GST, in the sum of $11,800, such sum to be paid by them to the respondent’s solicitors on or before 5pm on 29 November 2011.
Until further order, the first respondent be at liberty to occupy the premises known as D Street, Suburb E in the Australian Capital Territory until settlement of the sale of the property.
Each of the applicant and the respondent are appointed as joint trustees for sale in relation to the property and will do such things together, or through their solicitors if they are unable personally to communicate, as may be necessary to ensure the effective and prompt sale of the property and the discharge of the existing mortgage.
Without limiting the terms of the sale or the matters to be agreed between the parties and noting that liberty to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Galvan and Galvan & Ors

Details

AGLC: Galvan and Galvan & Ors [2011] FamCA 1033
Case: [2011] FamCA 1033
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard proceedings between Mr Galvan Snr (applicant) and Ms Galvan Snr (first respondent), with Ms Galvan Jnr and Mr Galvan Jnr (second and third respondents) later joined as parties. The dispute concerned property matters under the *Family Law Act 1975* (Cth). The final hearing commenced, but the subsequent joinder of the adult children as parties, who were unprepared to meet the case, necessitated an adjournment.

The court was required to determine whether to grant an adjournment of the final hearing, consider interim arrangements for the matrimonial home, and make orders regarding costs. Specifically, the court had to assess the impact of the late joinder of the adult children on the procedural fairness of the proceedings and the practicality of completing the hearing within the allocated time. The court also needed to decide on the appropriate interim measures for the matrimonial home, given the history of conflict between the parties and the property's listing for sale, and to consider an application for costs thrown away due to the adjournment.

The court granted the adjournment, reasoning that proceeding without adequate preparation by the new parties and without their counsel having sufficient time to familiarise themselves with the complex issues would be unjust and deny procedural fairness. The court noted that cross-examination of Mr Galvan Snr had already occurred before the adult children were joined, creating a disadvantage. Regarding the matrimonial home, the court refused the husband's application for both parties to reside there, citing the history of alleged assaults and apprehended violence, and instead ordered that the wife continue to occupy the home until settlement. The court appointed both Mr and Ms Galvan Snr as joint trustees for sale to facilitate the prompt sale of the property. Furthermore, the court ordered the second and third respondents to pay the first respondent's costs thrown away as a result of the adjournment, quantifying this at $11,800, and restrained the second and third respondents from disposing of or encumbering their real estate without consent or further court order.

Orders