Galvis & Galvis

Case [2024] FedCFamC1A 123

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Galvis & Galvis [2024] FedCFamC1A 123

Appeal from: Galvis & Galvis [2024] FedCFamC2F 429
Appeal number: NAA 81 of 2024
File number: PAC 6181 of 2022
Judgment of: AUSTIN J
Date of judgment: 26 July 2024
Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION – Where the primary judge found the appellant had contravened parenting orders –Where the primary judge denied the appellant procedural fairness by not affording her the opportunity to make supplementary submissions on the question of sanction – Where the appellant was sentenced globally for multiple contraventions – Where the primary judge erred by not imposing individual sanctions for the individual contraventions – Where the reasons for judgment do not explicate material considerations in the sentencing exercise – Where discretion miscarried – Appeal allowed – Where the appellant was not ready to adduce additional evidence in the appeal for the re-exercise of discretion – Where the question of penalty is remitted for rehearing – Costs certificates granted for the appeal only
Legislation:

Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 65N, 70NBF, 70NCB, 70NEB, 70NEC, 70NECA

Family Law Amendment Act 2023 (Cth) Sch 2

Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Dobbs & Brayson (2007) FLC 93-346; [2007] FamCA 1261

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Gravis v Major [2010] FamCAFC 239

Langer & Griffin (2013) FLC 93-559; [2013] FamCAFC 170

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

McClintock v Levier (2009) FLC 93-401; [2009] FamCAFC 62

Mead v Mead (2007) 235 ALR 197; [2007] HCA 25

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 355

Stanley v DPP (NSW) (2023) 407 ALR 222; [2023] HCA 3

Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Zamir & Zamir (2022) FLC 94-115; [2022] FedCFamC1A 193
Number of paragraphs: 59
Date of hearing: 22 July 2024
Place: Newcastle (via Microsoft Teams)
Counsel for the Appellant: Mr Ahmad
Solicitor for the Appellant: Thornton and King
Counsel for the Respondent: Mr Baston
Solicitor for the Respondent: Hills Family Law Centre

ORDERS

NAA 81 of 2024
PAC 6181 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS GALVIS

Appellant
AND:

MR GALVIS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:

1.The appeal…

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AGLC
Galvis & Galvis [2024] FedCFamC1A 123
Case
[2024] FedCFamC1A 123
Decision Date

CaseChat Overview and Summary

The appeal in this matter concerns the contravention of parenting orders made between the parties, Galvis and Galvis, under the Family Law Act 1975 (Cth). The children reside with the appellant in Queensland, while the respondent lives in New South Wales. The orders include provisions for the children to spend time with the respondent during school holidays and for electronic communication, among others. The respondent filed two Applications-Contravention alleging breaches of these orders by the appellant. The primary judge found four counts proven against the appellant, leading to a single good behaviour bond as a sanction. The appellant appealed, asserting errors in the imposition of the sanction and the denial of procedural fairness.

The primary legal issues before the court were whether the appellant was denied procedural fairness by not being allowed to make supplementary submissions on the question of sanction, and whether the primary judge erred in imposing a single global sanction for multiple contraventions rather than individual sanctions for each contravention. Additionally, the court needed to determine if the primary judge's reasons for judgment sufficiently explicated the material considerations in the sentencing exercise and whether there was a miscarriage of discretion.

The court found that the primary judge did deny the appellant procedural fairness by not allowing supplementary submissions on the sanction. Furthermore, the court concluded that the imposition of a single global sanction for multiple contraventions was erroneous and that the reasons for judgment did not sufficiently detail the material considerations in the sentencing exercise, leading to a miscarriage of discretion. The court found that the appeal was allowed due to these errors of law. However, as the appellant was not ready to proceed with the re-exercise of the sentencing discretion in the appeal, the matter had to be remitted for rehearing on the question of penalty.

The court set aside the orders made by the primary judge and remitted the two Applications-Contravention to the Federal Circuit and Family Court of Australia (Division 2) for the re-imposition of sanctions according to law. The court dismissed the appellant's and respondent's applications for costs against each other and granted costs certificates for the appeal to both parties. The parties' applications for costs certificates in respect of the re-hearing were also dismissed.

Orders

Orders of the court

NAA 81 of 2024

PAC 6181 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS GALVIS

Appellant

AND:

MR GALVIS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 1, 2, 3 and 6 made on 8 April 2024 are set aside.

3. The two Applications-Contravention filed by the respondent on 16 October 2023 are remitted to the Federal Circuit and Family Court of Australia (Division 2) for the imposition of sanctions upon the appellant according to law in respect of the four contraventions found proven against her (as recorded in Notation A made on 8 April 2024).

4. The appellant’s application for costs against the respondent is dismissed.

5. The respondent’s application for costs against the appellant is dismissed.

6. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

7. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

8. The parties’ applications for costs certificates in respect of the re-hearing are 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).

Background

Background to the litigation

The appeal is allowed for errors of law related to the way in which the appellant was sanctioned for the four contraventions proven against her. As the appellant was unready to proceed in the appeal by way of the re-exercise of the sentencing discretion, there was no alternative but to remit the proceeding for re-hearing on the question of penalty.Background On 27 March 2023, with the parties’ consent, parenting orders were made between them with respect to their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The children live with the appellant in Queensland, while the respondent lives in New South Wales. The orders relevantly provide for the children to spend time with the respondent in Sydney during school holiday periods (Order 10), for the children to communicate electronically with the respondent once per week (Order 16), for the parties to keep one another advised of contact details for themselves and the children (Order 19), and for the children to travel overseas with each parent upon meeting certain conditions (Order 27). In October 2023, the respondent filed two Applications-Contravention alleging the appellant’s breach of those orders without reasonable excuse on seven occasions in September 2023. The applications were heard by the primary judge in March 2024. In respect of the seven counts, the appellant:(a)denied the contravention alleged by Count 1 (at [26(a)]), but contended for a reasonable excuse in the alternative (at [26(b)]);(b)denied the contravention alleged by Count 2 (at [26(a)] and [26(c)]);(c)denied the contravention alleged by Count 3 (at [26(a)] and [26(d)]), which count the respondent subsequently abandoned and so it was consequently dismissed (at [27]);(d)admitted the contravention alleged by Count 4, but contended for a reasonable excuse (at [87]);(e)denied the contravention alleged by Count 5 (at [26(a)] and [26(e)]); and(f)admitted the contravention alleged in Count 6 (at [10] and [29]), but the respondent conceded it would be duplicitous for both Counts 6 and 7 to be found proven against the appellant and so he pressed for only Count 6 to be sustained (at [9] and [28]), in which event Count 7 was dismissed (at [30]). In the upshot, four counts (Counts 2, 4, 5 and 6) were found proven against the appellant without reasonable excuse (Notations A and B). The appellant was sanctioned for all four contraventions by the imposition of a single good behaviour bond of 12 months duration imposed under ss 70NEB(1)(d) and 70NEC of the Act (Order 2). The appellant appealed from the orders on 10 April 2024, though the appeal was amended on 21 June 2024.Ground 1 This ground seeks to challenge a finding of fact made in respect of Count 1 but, as the count was dismissed (at [76]), the ground is entirely superfluous. No appeal lies from merely findings in reasons for judgment (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [34]; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625).

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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