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Forlan and Forlan (No. 2)

Forlan and Forlan (No. 2)

Case [2017] FamCA 936 20 November 2017

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FAMILY COURT OF AUSTRALIA

FORLAN & FORLAN (NO. 2)

[2017] FamCA 936

FAMILY LAW – CONTRAVENTION – SANCTION – Where allegations of 46 contraventions without reasonable excuse were previously established – Consideration of sanctions under s 112AD(2) – Where it was determined that an order for imprisonment was necessary to ensure future compliance – Where the Court is satisfied that, in all the circumstances of the case, it would not be appropriate for the Court to deal with the contraventions through any other sanction – Where the respondent is sentenced to imprisonment for two months – Where the sentence is suspended on the condition that the respondent enter into a bond for two years with conditions that he be of good behaviour and comply with all orders of the Court.

FAMILY LAW – COSTS – INDEMNITY BASIS – Where the wife sought an order that the husband pay her costs on an indemnity basis or in the event that such an order was not made, on a party and party basis – Where it was appropriate to award costs on a basis other than party and party - Where costs were ordered on a solicitor and own client basis.

Crimes Act 1914 (Cth) s 4AA
Family Law Act 1975 (Cth) ss 112AD, 112AE, 112AF, 112AG, 112AN, 117

B & B [2004] FamCA 268
Bodilly & Hand (No. 2) [2012] FamCA 734
Cluny & Skinner(No. 2) [2017] FamCA 547
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Dobbs & Brayson (2007) FLC 93-346
Malcher & Malcher [2016] FLC 93-740
Stephens & Stephens and Anor (Enforcement) (Costs)(2010) 44 Fam LR 117

APPLICANT:

Ms Forlan

RESPONDENT:

Mr Forlan

FILE NUMBER:

ADC

1582

2015

DATE DELIVERED:

20 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:	Loughnan J
HEARING DATE:	11 October 2017

REPRESENTATION

COUNSEL FOR APPLICANT:	Ms Lewis
SOLICITOR FOR APPLICANT:	Black and Wood Divorce & Family Lawyers

RESPONDENT:

In Person

Orders

The proceedings are listed for the making of final orders in the Contravention proceedings on 30 November 2017 at 10.30 am Central Daylight Time.
Those proceedings will be conducted by video link and the husband shall attend personally at the Adelaide Registry of this Court on the adjourned date and shall remain there until released by the Court.
The husband shall pay the costs of the wife of and incidental to these proceedings on a solicitor and own client basis with the quantum of the costs to be as agreed or as assessed. Subject to the assessment processes, those costs shall be paid within 14 days after the conclusion of the property settlement proceedings between the parties.

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 (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 (No. 2)

Details

AGLC: Forlan and Forlan (No. 2) [2017] FamCA 936
Case: [2017] FamCA 936
Decision Date: 20 November 2017

CaseChat Overview and Summary

In the matter of *Forlan and Forlan (No. 2)*, Loughnan J of the Federal Circuit Court of Australia considered proceedings concerning contravention and the making of final property settlement orders. The specific dispute involved the husband's alleged contravention of previous court orders and the subsequent determination of final property settlement terms.

The court was required to determine the appropriate course of action regarding the contravention proceedings and to make final orders in relation to the property settlement between the parties. This included addressing the husband's attendance at court and the allocation of costs associated with the proceedings.

Loughnan J ordered that the contravention proceedings be listed for the making of final orders on 30 November 2017. The husband was directed to attend personally at the Adelaide Registry of the Court via video link and remain until released by the Court. Furthermore, the husband was ordered to pay the wife's costs of and incidental to these proceedings on a solicitor and own client basis, with the quantum to be agreed or assessed and paid within 14 days after the conclusion of the property settlement proceedings.

Orders

Orders of the court

The proceedings are listed for the making of final orders in the Contravention proceedings on 30 November 2017 at 10.30 am Central Daylight Time.

Those proceedings will be conducted by video link and the husband shall attend personally at the Adelaide Registry of this Court on the adjourned date and shall remain there until released by the Court.

The husband shall pay the costs of the wife of and incidental to these proceedings on a solicitor and own client basis with the quantum of the costs to be as agreed or as assessed. Subject to the assessment processes, those costs shall be paid within 14 days after the conclusion of the property settlement proceedings between the parties.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Forlan and Forlan (No. 2) [2017] FamCA 936

Most Recent Citation

Najar & Bata (No 2) [2025] FedCFamC2F 690

Cases citing this decision · 2 of 2 shown

Najar & Bata (No 2)
[2025] FedCFamC2F 690

…tion: Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Forlan & Forlan (No 2) [2017] FamCA 936 Panno & Panno [2018] FamCAFC 195 Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 2 May 2025 Place: Sydney Solicitor for the Appli…
Woolly & Woolly
[2023] FedCFamC1F 634 Para 35

…In Forlan & Forlan (No 2) [2017] FamCA 936, the respondent had been found guilty of 46 contraventions, selling and disposing of multiple assets despite orders restraining him from doing so, or in circumstances where he failed to meet the conditions surrounding any sales as set out in various orders. The trial judge…

View all 2 citing cases →

Cases cited in this decision · 16 of 16 shown

Cluny & Skinner (No 2)
[2017] FamCA 547 Para 6

…No comparable sentences were referred to me by the parties. In Cluny & Skinner (No 2) [2017] FamCA 547 Kent J was required to consider, among other things with the appropriate sentence for a husband who had been found to have contravened court orders, without reasonable excuse resulting in an amount in excess of $2…
Bodilly & Hand (No. 2)
[2012] FamCA 734 Para 7

…equire that justification is given by the Court for awarding costs on any more generous basis than party and party costs. In Bodilly & Hand (No. 2) [2012] FamCA 734I discussed the authorities in respect of the quantification of costs, including the decision of the Federal Court of Australia (Sheppard J) in Colgate…
Preston v Preston
[2011] FamCA 618 Para 7

…The wife’s application is for costs on an indemnity basis but if not granted, on the usual party and party basis. Costs are generally awarded on a party and party basis which provides a partial indemnity to the party who secures a costs order. Absent considerations such as the costs of a representat…
Limousin v Limousin (Costs)
[2007] FamCA 1178 Para 7

…nd Yunghanns [2000] FamCA 681; (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, Mullane J dissenting) and Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478 per Full Court (Kay, Coleman and Boland JJ). 73. An order for costs may be made on an indemnity basis, subject to a judicial determ…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 7

…Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnit…
NMFM Property Pty Ltd v Citibank Ltd (No 2)
[2001] FCA 480 Para 7

…36; (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) [2001] FCA 480; (2001) 109 FCR 77 per Lindgren J at [53] to [90]. 221.In Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 Sheppard J revie…
Yunghanns v Yunghanns
[2000] FamCA 681 Para 7

…Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman (1997) FLC 92-784 per Holden J; Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, Mullane J dissenting) and Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 4…
Pearce v The Queen
[1998] HCA 57 Para 14

…contemplates, in accordance with general sentencing principles, that one offence (or contravention) is punishable by one sentence (see Pearce v The Queen (1998) 194 CLR 610). As the father was found to have contravened orders on three separate occasions, his Honour was entitled to consider them separately and impose a sanc…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 7

…uantification of costs, including the decision of the Federal Court of Australia (Sheppard J) in Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 and the decision of the Full Court of this Court in Stephens & Stephens and Anor (Enforcement) (Costs) (2010) 44 Fam LR 117 in the following terms: 220…
Colgate-Palmolive Co v Cussons Pty Ltd
[1993] FCA 536 Para 7

…arty basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) [2001] FCA 480;…
Thors v Weekes
[1989] FCA 795 Para 7

…false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were c…
[1993] FAMCA 71
[1993] FAMCA 71 Para 7

…tion of indemnity costs as follows: Indemnity Costs 72. The Family Court has jurisdiction to make orders for indemnity costs: McAlpin and McAlpin [1993] FamCA 71; (1993) FLC 92-411 per Full Court (Nicholson CJ and Maxwell J, Baker J dissenting); Kohan and Kohan (1993) FLC 92-340 per Full Court (Strauss, Lindenmaye…
B & B
[2004] FAMCA 268 Para 7

…B & B [2004] FamCA 268 was a decision by Judicial Registrar Forbes in contempt proceedings. A husband who had breached an injunction in dissipating over $78,000 in funds drawn from his DFRDB lump sum. The husband had offered to make a partial restitution. He was sentenced to imprisonment for 28 days with the senten…
Maitland Hospital v Fisher
268 ALR 1 Para 7

…The wife’s application is for costs on an indemnity basis but if not granted, on the usual party and party basis. Costs are generally awarded on a party and party basis which provides a partial indemnity to the party who secures a costs order. Absent considerations such as the costs of a representat…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 7

…ngation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreport…
Munday v Bowman
Para 7

…ll Court (Nicholson CJ and Maxwell J, Baker J dissenting); Kohan and Kohan (1993) FLC 92-340 per Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman (1997) FLC 92-784 per Holden J; Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, M…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
112AD, 112AE, 112AF, 112AG, 112AN, 117 13 mentions
Crimes Act 1914 (Cth)
4AA 1 mention
Family Law Rules 2004 (Cth)
1 mention