FAMILY LAW – EVIDENCE – ADMISSIBILITY – whether evidence illegally obtained
FAMILY LAW – EVIDENCE – ADMISSIBILITY – whether communication in connection with attempt to negotiate a settlement of the dispute
FAMILY LAW – EVIDENCE – EXCEPTIONS TO INADMISSIBILITY – whether Court likely to be misled unless otherwise privileged communication admitted
FAMILY LAW – EVIDENCE – EXCEPTIONS TO INADMISSIBILITY – whether otherwise privileged communication affects the right of a person
FAMILY LAW – EVIDENCE – EXCEPTIONS TO INADMISSIBILITY – whether otherwise privileged communication made in furtherance of the commission of an act that renders a person liable to civil penalty – whether contempt comprising an attempt to mislead a Court renders a person liable to a civil penalty
FAMILY LAW – EVIDENCE – EXCEPTIONS TO INADMISSIBILITY – whether otherwise privileged communication made in furtherance of the commission of a fraud – whether prejudice to the interests of creditors comprises fraud for purposes of s 131(2)(j) of the Evidence Act (Cth)
Family Law Act 1975 (Cth) ss 70 NEB, 79, 112AP Invasion of Privacy Act (Qld) ss 43, 45 Evidence Act (Cth) ss 131, 138 Crimes Act (Cth) ss 42, 43
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelly & Lomax has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT
FILE NUMBER: BRC6009/2010
Applicant Ms Kelly
And
Respondent Mr Lomax
REASONS FOR JUDGMENT
INTRODUCTION
On 13 March 2013, I reserved my decision in relation to a number of interim applications that were heard by me on 11, 12 and 13 March 2013.
By Application in a Case filed 18 April 2013, the applicant wife sought to re-open her case to rely upon additional material which had been obtained by her pursuant to a subpoena which she had issued to the National Australia Bank. In my decision delivered 27 June 2013, amongst other things, I gave leave for her to re-open her case to rely upon that additional material.
Prior to delivering that decision,…
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.
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AGLC
KELLY & LOMAX [2013] FamCA 556
Case
[2013] FamCA 556
Decision Date
CaseChat Overview and Summary
The case of *Kelly & Lomax* concerned a dispute between the parties, Kelly and Lomax, heard before Tree J. The precise nature of the dispute is not detailed in the provided text, but it involved a matter requiring judicial determination.
The central legal issue before Tree J was to determine the rights and obligations of the parties in relation to the subject matter of their dispute. This would have involved an examination of the relevant legal principles and any applicable legislation or common law rules governing their relationship.
Tree J's reasoning and the legal principles applied would have been directed towards resolving the dispute based on the evidence presented and the applicable law. The judgment would have articulated the court's findings of fact and its application of legal principles to those facts to reach a conclusion.
The final orders or outcome of the case, reflecting Tree J's determination of the legal issues, would have been pronounced at the conclusion of the proceedings.