Strahan and Strahan and Ors - [2013] FamCA 206

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN AND ORS

[2013] FamCA 206

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the applicant wife sought a stay of an order requiring the disclosure of certain documents pending an appeal against said order – where the applicant wife appears to have an arguable case – where the appeal would be rendered nugatory if the stay were not granted – stay granted.
FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the applicant husband sought a stay of an order requiring him to do all things necessary to resolve his indebtedness to the Australian Taxation Office – where the applicant husband appears to have an arguable case – where the appeal would be rendered nugatory if the stay were not granted – stay granted.
FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the applicant husband sought a stay of an order requiring the applicant husband to disclose certain documents to the wife’s solicitors concerning his indebtedness to the Australian Taxation Office – where the applicant husband claimed that the order requires him to disclose privileged documents – stay granted to the extent that the applicant husband is no longer required to disclose documents that are subject to a claims of legal professional privilege.
FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the applicant husband sought a stay of an order granting the Commissioner of Taxation leave to intervene in the proceedings – where the applicant husband does not appear to have an arguable case – where the appeal would not be rendered nugatory if the stay were not granted – stay refused.

Family Law Rules 2005 (Cth) r 22.11

Aldridge & Keaton [2009] FamCAFC 106
Commissioner of Taxation v Myer Emporium Pty Ltd (1986) 160 CLR 220
Friscioni & Friscioni [2009] FamCAFC 43
State Central Authority & Ustinov (No. 2) [2008] FamCA 368
The Annot Lyle (1886) 11 PD 114
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FIRST INTERVENER:

Commissioner of Taxation, Australian Taxation Office

SECOND INTERVENER:

PC Firm

INDEPENDENT CHILDREN’S LAWYER:

Nelson & Co

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

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Winter & Co

COUNSEL FOR THE APPLICANT

[PC FIRM ISSUE]:

Mr Crocker

SOLICITOR FOR THE APPLICANT

[PC FIRM ISSUE]:

Winter & Co

COUNSEL FOR THE RESPONDENT:

Mr Berman SC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE FIRST INTERVENER:

Ms Gleeson

SOLICITOR FOR THE FIRST INTERVENER:

Legal Services Branch, Australian Taxation Office

COUNSEL FOR THE SECOND INTERVENER:

Mr PP

SOLICITOR FOR THE SECOND INTERVENER:

PC Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Nelson & Co

Orders

Pending determination upon appeal paragraph 1 of the Orders made 4 April 2012 and…

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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Details

AGLC: Strahan and Strahan and Ors [2013] FamCA 206
Case: [2013] FamCA 206
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications for stays of proceedings brought by both the applicant wife, Ms Strahan, and the respondent husband, Mr Strahan. The wife sought a stay of an order requiring her to disclose certain documents pending her appeal against that order. The husband sought stays of orders requiring him to resolve his indebtedness to the Australian Taxation Office, to disclose documents related to that indebtedness, and granting the Commissioner of Taxation leave to intervene in the proceedings, pending his appeals against these orders.

The court was required to determine whether to grant a stay of the various orders under appeal. Specifically, for the wife's application, the court had to consider whether her appeal against the disclosure order had an arguable case and whether the appeal would be rendered nugatory if a stay were not granted. For the husband's applications, the court had to assess the arguable nature of his case for each of the orders he sought to stay, and whether the respective appeals would be rendered nugatory without a stay.

In relation to the wife's application, the court found that she appeared to have an arguable case and that the appeal would be rendered nugatory if a stay were not granted, thus granting the stay. Similarly, for the husband's application concerning the resolution of his tax indebtedness, the court found an arguable case and granted a stay. However, regarding the husband's claim that the order to disclose documents related to his tax indebtedness required him to reveal privileged information, the court granted a stay only to the extent that he was no longer required to disclose documents subject to a claim of legal professional privilege. The husband's application for a stay of the order granting the Commissioner of Taxation leave to intervene was refused, as the court found he did not appear to have an arguable case and the appeal would not be rendered nugatory without a stay.

Consequently, the court ordered that paragraphs 1 of the orders made on 4 April 2012 and paragraph 2 of the orders made on 23 August 2012 be stayed pending the finalisation of the appeals. Paragraph 3 of the orders made on 23 August 2012 was stayed to the extent that the husband was no longer required to disclose documents subject to claims of legal professional privilege. The court declined to grant a stay in relation to paragraph 4 of the orders made on 23 August 2012, which concerned the Commissioner of Taxation's intervention. The question of costs was reserved.

Orders