PARRISH & GALLEJO (No.2) - [2018] FCCA 2851

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARRISH & GALLEJO (No.2)

[2018] FCCA 2851

Catchwords:
FAMILY LAW– Family Law Act 1975 (Cth) and related legislation – contempt of court – powers of court.

COURTS AND JUDGES – Contempt – punishment and enforcement – punishment – order – nature of punishment – imprisonment.

Legislation:

Family Law Act 1975 (Cth), ss.112AP, 112AP(4), 112AP(6)

Cases cited:

Abduramanoski & Abduramanoska (2005) FLC 93-215
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115
Kendling v Kendling(Contempt) (2008) FLC 93-384
Myers and Myers (2006) FLC 93-291
Tate and Tate (No 3) (2003) FLC 93-138

Witham v Holloway [1995] 183 CLR 525

Applicant:

MS PARRISH

Respondent:

MR GALLEJO

File Number:

BRC 7807 of 2011

Judgment of:

Judge Jarrett

Hearing date:

31 July 2018

Date of Last Submission:

31 July 2018

Delivered at:

Brisbane

Delivered on:

3 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

O’Reilly & Sochacki

Counsel for the Respondent:

Mr Neaves

Solicitors for the Respondent:

Kl Legal

ORDERS

UPON THE COURT FINDING that the respondent has, upon his own pleas of guilty, contravened the orders made under the Family Law Act 1975 on 5 April 2013 and on 18 October 2017, in that:

(a)In contravention of order 4(a) of the orders made on 5 April 2013, the respondent paid the sum of $231,807.99 to the mortgage but without the consent of the applicant, withdrew the full amount of the sale proceeds and retained same.
(b)In contravention of order 4(a) of the orders made on 5 April 2013, the respondent without the consent of the applicant, increased the mortgage by systematic withdrawal of funds from the mortgage account.
(c)In contravention of order 4(b) of the orders made on 5 April 2013, the respondent failed to make any of the 48 monthly payments.
(d)In contravention of order 4(b) of the orders made on 5 April 2013, the respondent failed to pay the balance of the mortgage remaining at the expiration of the 48 month period.
(e)In contravention of order 7(c) of the orders made on 18 October 2017, the respondent failed to provide to the applicant financial statements for the Super Fund 1 to 30 June 2017 on 11 November 2017

AND that the contraventions are a flagrant challenge to the authority of the Court.

THE COURT ORDERS THAT:

Pursuant to s.112AP(4) of the Family Law Act 1975, on each of counts 1-2 of the contempt application filed on 19 February 2018 the respondent, MR GALLEJO is sentenced to serve a term of imprisonment for a period of twelve (12) months, to be served concurrently.
Pursuant to s.112AP(4) of the Family Law Act 1975, on each of counts 3-4 of the contempt application filed on 19 February 2018 the respondent, MR GALLEJO is sentenced to serve a term of imprisonment for a period of six (6) months, to be served concurrently.
The terms of imprisonment…

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 PARRISH & GALLEJO (No.2)

Details

AGLC: PARRISH & GALLEJO (No.2) [2018] FCCA 2851
Case: [2018] FCCA 2851
Decision Date: 3 August 2018

CaseChat Overview and Summary

In the matter of *Parrish & Gallejo (No.2)*, Judge Jarrett of the Family Court of Australia considered an application for contempt of court brought by the applicant against the respondent, Mr Gallejo. The dispute concerned Mr Gallejo's contravention of court orders made on 5 April 2013 and 18 October 2017, which related to financial matters, including mortgage payments, the withdrawal of sale proceeds, and the provision of financial statements.

The court was required to determine whether Mr Gallejo had contravened the specified orders and, if so, to consider the appropriate penalty for such contraventions, which were found to constitute a flagrant challenge to the authority of the court. The legal issues revolved around the application of the *Family Law Act 1975* (Cth), specifically concerning contempt of court and the powers of the court to punish such breaches.

Judge Jarrett found that Mr Gallejo had, on his own pleas of guilty, contravened multiple orders. These contraventions included unauthorised payment of mortgage funds, retention of sale proceeds, systematic withdrawal of funds from a mortgage account, failure to make monthly mortgage payments, failure to pay the remaining mortgage balance, and failure to provide financial statements for a superannuation fund. Applying s 112AP(4) of the *Family Law Act 1975*, the court sentenced Mr Gallejo to a term of imprisonment for twelve months, to be served concurrently, for the first two counts of contempt. For the third and fourth counts, he was sentenced to six months imprisonment, also to be served concurrently. The terms of imprisonment were ordered to be served concurrently. For the fifth count, Mr Gallejo was fined $1,000. A Warrant of Commitment was ordered to issue to give effect to the imprisonment.

Orders

Orders of the court

UPON THE COURT FINDING that the respondent has, upon his own pleas of guilty, contravened the orders made under the Family Law Act 1975 on 5 April 2013 and on 18 October 2017, in that:

(a) In contravention of order 4(a) of the orders made on 5 April 2013, the respondent paid the sum of $231,807.99 to the mortgage but without the consent of the applicant, withdrew the full amount of the sale proceeds and retained same.

(b) In contravention of order 4(a) of the orders made on 5 April 2013, the respondent without the consent of the applicant, increased the mortgage by systematic withdrawal of funds from the mortgage account.

(c) In contravention of order 4(b) of the orders made on 5 April 2013, the respondent failed to make any of the 48 monthly payments.

(d) In contravention of order 4(b) of the orders made on 5 April 2013, the respondent failed to pay the balance of the mortgage remaining at the expiration of the 48 month period.

(e) In contravention of order 7(c) of the orders made on 18 October 2017, the respondent failed to provide to the applicant financial statements for the Super Fund 1 to 30 June 2017 on 11 November 2017

AND that the contraventions are a flagrant challenge to the authority of the Court.

THE COURT ORDERS THAT:

Pursuant to s.112AP(4) of the Family Law Act 1975, on each of counts 1-2 of the contempt application filed on 19 February 2018 the respondent, MR GALLEJO is sentenced to serve a term of imprisonment for a period of twelve (12) months, to be served concurrently.

Pursuant to s.112AP(4) of the Family Law Act 1975, on each of counts 3-4 of the contempt application filed on 19 February 2018 the respondent, MR GALLEJO is sentenced to serve a term of imprisonment for a period of six (6) months, to be served concurrently.

The terms of imprisonment imposed by orders 1 and 2 hereof are to be served concurrently.

Pursuant to s.112AP(4) of the Family Law Act 1975, on count 5 of the contempt application filed on 19 February 2018 the respondent, MR GALLEJO is fined the sum of $1,000 such sum to be paid within 30 days of today.

To give effect to clause 1 of this order, a Warrant of Commitment issue in the usual form.

The respondent pay the applicant’s costs of and incidental to the application for contempt filed on 19 February 2018 to be assessed on the indemnity basis.

Background

Background to the litigation

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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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