Strahan and Strahan
[2017] FamCA 76
•9 February 2017
FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN | [2017] FamCA 76 |
| FAMILY LAW – PRACTICE AND PROCEDURE - ADJOURNMENT |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Strahan |
| RESPONDENT: | Mr Strahan |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| DATE DELIVERED: | 9 February 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 9 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lindsay With Mr Heinrich |
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler |
| COUNSEL FOR THE RESPONDENT: | Mr Wilson |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
That all outstanding applications are adjourned to 10.00am (Melbourne time) on 3 March 2017 for the determination of all outstanding interlocutory issues.
That the wife file and serve by 4.00pm (Adelaide time) on 16 February 2017 any application together with supporting affidavit material upon which she intends to rely.
That the husband file and serve by 4.00pm (Adelaide time) on 1 March 2017 any response with supporting affidavit material upon which he intends to rely.
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 Strahan & Strahan 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 MELBOURNE |
FILE NUMBER: ADF 228 of 2005
| Ms Strahan |
Applicant
And
| Mr Strahan |
Respondent
REASONS FOR JUDGMENT
On 9 February 2017, at the instigation of the court, this long-running property proceeding was listed for management reasons.
In September 2016, Austin J as the national case management judge of the court listed the property dispute for final hearing in Adelaide to commence in April 2017 and thereafter set a timetable for the parties to file relevant material. In addition, his Honour dismissed all outstanding interim proceedings.
Whilst there had been some compliance by the husband, neither party had fulfilled the obligations under the orders. Those orders provided the opportunity for the court to list the matter if there was non-compliance.
Mr Lindsay on behalf of the wife indicated that new solicitors had just come on the record for the wife prior to Christmas and he foreshadowed that an application for the adjournment of the April trial would soon be made. Mr Wilson of counsel on behalf of the husband indicated that his client was about to file the trial affidavit material and was otherwise ready to proceed.
Mr Lindsay indicated that there were three outstanding matters that required attention before the case could proceed to trial. The first of those issues related to litigation funding. It seems that there have been previous orders including that a solicitor retain funds in trust for the purposes of some form of mediation in the process and that those funds have been dissipated. As such, the wife has flagged that to engage the lawyers, she needs further funding. Mr Wilson on behalf of the husband said that if such an application was made, his client would point to the relevant real properties in Adelaide including where the wife lives as a source of her funding her own case. He observed that his client’s proposed orders would enable the wife to have access to property over and above the home for the purposed of funding any case. It would also seem that the wife has a significant spousal maintenance entitlement currently being paid by the husband. Mr Wilson indicated that his client was very keen to bring the proceedings to an end because he desired that that stop.
Mr Lindsay indicated that the lawyers would have to give consideration to their position if there was no such funding order. The uncertainty around this particular issue requires clarification and for that reason, I fixed the interlocutory hearing date mentioned at the commencement of these reasons.
The second issue relates to discovery. The wife’s argument is that prior to the hearing before Austin J, the solicitors for the husband were served with an extensive list of documents said to be in the husband’s possession relating to financial matters and about which he was required to make disclosure. Mr Lindsay’s submission was that the solicitors had been unresponsive but having read their letter, I am satisfied that what they were saying was that there were no documents within the husband’s possession, power or control that had not already been disclosed. That led to a discussion as to how the issue could be advanced and I indicated that if the letter to which I have just referred was replicated in an affidavit by the husband, the only way that anything could be done would be by the testing of that evidence. It will remain to be seen whether that exercise can be undertaken on the date that I have allocated for interlocutory issues to be determined. If not, it may be that a voir dire of some form has to take place but that seems impracticable if a trial is then to follow in circumstances where such a discovery order is then to follow in circumstances where such a discovery order is possible.
The third issue relates to the question of discovery as well but in a different sense. It seems that the wife has had a number of solicitors act for her and one in particular, has a dispute with her about legal costs and has claimed a lien over her files which are substantial in number. That issue as litigated before Faulks DCJ during which judgment was unfortunately substantially delayed and then subject to an appeal. The appeal was heard in October 2016 and judgment is reserved save that, my attention was drawn to the fact that a concession was made to the Full Court that the reasons of the trial judge were not adequate and accordingly the appeal had to be allowed. The problem seems to be in the question of the Full Court exercising its discretion to make orders and that apparently relates to what terms and conditions (if any) can be imposed in relation to the lien. All of that leads to the dilemma however that the wife says that without those documents, she cannot necessarily proceed to trial. Mr Wilson on behalf of the husband observed that she did not need those documents because many of them were irrelevant to the present property dispute. Again it is an issue about which I can make no finding but I consider that it is another issue that needs to be determined by the next return date.
One of the suggestions I have made is that if the parties are not in a position to proceed, the case should no longer be carried (it has currently been carried by the court for 11½ years) but simply be struck out with a right to reinstate when certification of readiness occurs. Mr Wilson indicated that that was not satisfactory from his client’s point of view because he is ready to proceed but the wife is not. I am not in a position to make a finding one way or the other as to why this case has taken so long to get as far as it has. However, it seems to me that the best way to solve the problem is to fix a date as Austin J did and then have everybody work towards that. At this stage, notwithstanding the suggestion that there may an application for an adjournment, I propose not to make any change to the April date but an assessment will be made as to whether or not the matter is ready to proceed on the next return date.
I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 February 2017.
Associate:
Date: 17 February 2017
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