Strahan and Strahan - [2013] FamCA 205

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2013] FamCA 205

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant wife requests the husband execute letters of authority to the Australian Taxation Office and the Hong Kong Internal Revenue Department granting these agencies permission to release certain documentation to the wife – where the wife’s draft letters of authority are drafted extremely broadly – where the wife’s draft letters of authority may result in documentation that has no apparent relevance to the proceedings being produced – where the husband has a duty of full and frank disclosure – the wife’s application is dismissed.

Family Law Rules 2005 (Cth) r 13.01, 13.04, 13.07, 13.12, 13.13, 13.18

Cook & Cook (No. 2) [2007] FamCA 1426
Hatton v Attorney-General of Australia (2000) 26 Fam LR 570
In The Marriage Of Hickey (2003) 30 Fam LR 355
Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

4 April 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

26 November 2012 and 21 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Holland

SOLICITOR FOR THE APPLICANT:

Winter & Co

COUNSEL FOR THE RESPONDENT:

Mr Berman SC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE FIRST INTERVENER:

N/A

SOLICITOR FOR THE FIRST INTERVENER:

Legal Services Branch, Australian Taxation Office,

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Nelson & Co

Orders

Paragraphs 1 and 2 of the wife’s Application in a Case filed on 23 August 2012 are dismissed.
The question of costs is reserved on a date to be fixed if no agreement is reached.

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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

Introduction

On 21 February 2013, I heard submissions on paragraphs 1 and 2 of an Application in a Case filed by the wife on 23 August 2012. Previously, on 26 November 2012 I heard some submissions on this matter before adjourning the matter to this date.

The Wife’s Application in a Case

For the purposes of this judgment, I am reserved solely on paragraphs 1 and 2 of the wife’s Application in a Case. These paragraphs provide:
1. That the husband does forthwith execute an authority to the Australian Taxation Office in terms of the document annexed hereto.
2. That the husband does forthwith execute an authority to the Hong Kong Internal Revenue Department in the terms of the document annexed hereto.
Annexures “ES3” and “ES4” to the wife’s affidavit in support of this Application in a Case filed on 23 August 2012 are draft letters of authority to the Australian Taxation Office and the Hong Kong Internal Revenue Department.…

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 Strahan and Strahan

Details

AGLC: Strahan and Strahan [2013] FamCA 205
Case: [2013] FamCA 205
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by the wife, Ms Strahan, seeking orders that the husband, Mr Strahan, execute letters of authority to the Australian Taxation Office and the Hong Kong Internal Revenue Department. These letters would permit the respective agencies to release specified documentation to the wife. The husband sought the dismissal of the wife's application.

The central legal issue before the court was whether the wife had established sufficient relevance to justify compelling the husband to execute the broad letters of authority. This involved determining the appropriate test for relevance in the context of disclosure obligations under the Family Law Rules 2005 (Cth), specifically concerning the production of documents from third-party agencies. The court was required to consider the husband's duty of full and frank disclosure and the wife's onus to demonstrate the relevance of the documents sought.

The court applied the "apparent relevance" test, as established in *Hatton v Attorney-General of Australia*, to assess the wife's application. This test requires the party seeking production to demonstrate that the material sought has an apparent connection to the issues in the proceedings, to be established by reference to the affidavit material. The court found that the wife's draft letters of authority were drafted extremely broadly, potentially leading to the production of documentation with no clear relevance to the financial proceedings. Consequently, the wife had not discharged her onus to establish the apparent relevance of the extensive documentation sought.

Paragraphs 1 and 2 of the wife's Application in a Case were dismissed. The question of costs was reserved.

Orders