Forlan and Forlan and Anor - [2017] FamCA 58

FAMILY COURT OF AUSTRALIA

FORLAN & FORLAN & ANOR

[2017] FamCA 58

FAMILY LAW – PROPERTY – interim orders – litigation funding – where the wife seeks funds to assist in her expenses of litigation – where the application is opposed by the husband – where there is an expert report – where the Court is not satisfied that such an order should be made – where the application is dismissed.

FAMILY LAW – EVIDENCE – where the husband seeks a section 128 certificate – where the Court does not consider that section 128 has application in the present circumstances – where the application is dismissed.

Family Law Act 1975 (Cth) s 117(2), 78(1), 80(1)(h)

Evidence Act 1995 (Cth) s 128
Corporations Act 2001 (Cth) s 233(1)(h)

Family Law Rules 2004 (Cth) r 15.45

Cornwell v The Queen (2007) 231 CLR 260
Ferrall and McTaggart as trustees for the Sapphire Trust and Ors & Blyton & Blyton & Attorney-General of the Commonwealth (2000) FLC 93-054
LGM & CAM (2011) FLC 93-481
Song v Ying (2010) NSWCA 237
Turner & Brown (No 2) [2014] FamCA 226

APPLICANT:

Ms Forlan

1st RESPONDENT:

Mr Forlan

2nd RESPONDENT:

Mr J Forlan

INTERVENOR:

FILE NUMBER:

ADC

1582

2015

DATE DELIVERED:

9 February 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

8 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr McGinn

SOLICITOR FOR THE 1ST RESPONDENT:

Mellor Olsson

COUNSEL FOR THE 2ND RESPONDENT:

No appearance

SOLICITOR FOR THE 2ND RESPONDENT:

Hunt & Hunt Lawyers

Orders

That the Further Amended Application in a Case filed 4 November 2016 and the oral application for orders as sought by the applicant wife on 18 November 2016 be dismissed.
That the oral application made on behalf of the respondent husband for a certificate pursuant to section 128 of the Evidence Act 1995 (Cth) in favour of the husband is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forlan & Forlan and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1582 of 2015

Ms Forlan

Applicant

And

Mr Forlan

First Respondent

And

Mr J Forlan
Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 10 October 2016 Ms Forlan (“the wife”) sought the following orders against Mr Forlan (“the husband”):-
(1)That paragraph 17 of the interim Orders sought in the wife’s…

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 Forlan and Forlan and Anor

Details

AGLC: Forlan and Forlan and Anor [2017] FamCA 58
Case: [2017] FamCA 58
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the matter of *Forlan and Forlan and Anor*, Berman J of the Federal Circuit Court of Australia considered an application by the wife for certain orders, and a counter-application by the husband for a certificate under section 128 of the *Evidence Act 1995* (Cth). The wife's application, filed on 4 November 2016, and an oral application made on 18 November 2016, were both dismissed by the Court.

The primary legal issue before the Court was whether the wife's applications for orders should be granted. Concurrently, the Court was required to determine the merits of the husband's application for a certificate pursuant to section 128 of the *Evidence Act 1995* (Cth), which relates to the protection of a witness from the consequences of giving evidence.

The Court's reasoning and the specific legal principles applied in dismissing both the wife's applications and the husband's application for a certificate are not detailed in the provided text. However, the outcome indicates that the Court found no basis to grant the relief sought by either party in relation to these specific applications.

Consequently, the Further Amended Application in a Case filed by the wife on 4 November 2016 and her oral application of 18 November 2016 were dismissed. The husband's oral application for a certificate under section 128 of the *Evidence Act 1995* (Cth) was also dismissed.

Orders

Orders of the court

That the Further Amended Application in a Case filed 4 November 2016 and the oral application for orders as sought by the applicant wife on 18 November 2016 be dismissed.

That the oral application made on behalf of the respondent husband for a certificate pursuant to section 128 of the Evidence Act 1995 (Cth) in favour of the husband is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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