Strahan and Strahan (No 2) - [2017] FamCA 248

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO 2)

[2017] FamCA 248

FAMILY LAW – PROPERTY – Application for litigation funding by way of property settlement, maintenance or costs where substantial amounts had already been spent over 12 years – application refused.

Family Law Act 1975 (Cth)

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan and Strahan (2011) FLC 93-466
Zschokke and Zsckokke (1996) FLC 92-693

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

26 April 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

The application in a case filed by the wife on 14 March 2017 is dismissed.
If no later than 4.00pm (Melbourne time) on 10 May 2017, the wife requests of the husband’s solicitor that the husband pay into the husband’s solicitor’s trust account the sum of $300,000, the husband do so within 14 days thereafter.
For the purposes of paragraph 2 of these orders, the said $300,000 is to be held on trust for the wife by way of part property settlement in her favour but such monies only be released to her at the conclusion of the final hearing of the property proceedings.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 4 September 2017 subject to any part heard case as a four day case and such trial be held in Melbourne subject to the orders that follow.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 7 July 2017 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)all affidavits of evidence to be relied upon; and
(c)a financial statement.
The applicant pay all required court fees by 4 pm on 7 July 2017.
By 4 pm on 4 August 2017 the applicant file and serve any affidavit in reply.
Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon
SUBPOENAE
All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.
By 4 pm on 31 August 2017 all parties file electronically to … a case outline in one document setting out:
(a)      the outline of the issues in dispute;
(b)      the list of the affidavits to be read;
(c)      a concise set of orders to be sought;
(d)      the list of objections to evidence requiring a ruling;
(e)      a list of assets and liabilities.
That to facilitate the final hearing referred to in these orders, the court provide a video link to…

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 (No 2)

Details

AGLC: Strahan and Strahan (No 2) [2017] FamCA 248
Case: [2017] FamCA 248
Decision Date: 26 April 2017

CaseChat Overview and Summary

In *Strahan and Strahan (No 2)*, Cronin J considered an application by the wife in long-standing property and spousal maintenance proceedings. The husband opposed the wife's application but proposed that he would place $300,000 into his solicitor's trust account for the wife's legal fees for the upcoming property trial, to be paid upon its conclusion. These proceedings had commenced approximately 12 years prior and, despite numerous hearings, remained unresolved.

The court was required to determine the wife's immediate application, which was filed by her as a self-represented litigant and included complaints about her former lawyers. Additionally, the court needed to establish a timetable and set directions for the final hearing of the substantive property and spousal maintenance proceedings, which had been previously adjourned. A key issue was the wife's failure to file her final affidavit evidence as ordered by Austin J in September 2016, while the husband had complied.

Cronin J dismissed the wife's immediate application, noting that any complaints against her former lawyers were not appropriate for determination in their absence. The court then made orders for the conduct of the final hearing, including setting a trial date for 4 September 2017. The husband was ordered to pay $300,000 into his solicitor's trust account, to be held on trust for the wife as part property settlement, to be released to her at the conclusion of the final hearing. A detailed timetable was set for the filing of amended applications, affidavits of evidence, financial statements, and case outlines. The court also provided for a video link to facilitate the wife's attendance and participation from Adelaide.

Orders

Orders of the court

The application in a case filed by the wife on 14 March 2017 is dismissed.

If no later than 4.00pm (Melbourne time) on 10 May 2017, the wife requests of the husband’s solicitor that the husband pay into the husband’s solicitor’s trust account the sum of $300,000, the husband do so within 14 days thereafter.

For the purposes of paragraph 2 of these orders, the said $300,000 is to be held on trust for the wife by way of part property settlement in her favour but such monies only be released to her at the conclusion of the final hearing of the property proceedings.

ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 4 September 2017 subject to any part heard case as a four day case and such trial be held in Melbourne subject to the orders that follow.

The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

By 4 pm on 7 July 2017 the applicant file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought;

(b) all affidavits of evidence to be relied upon; and

The applicant pay all required court fees by 4 pm on 7 July 2017.

By 4 pm on 4 August 2017 the applicant file and serve any affidavit in reply.

Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

10.

All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

11.

By 4 pm on 31 August 2017 all parties file electronically to … a case outline in one document setting out:

(a) the outline of the issues in dispute;

(b) the list of the affidavits to be read;

(d) the list of objections to evidence requiring a ruling;

(e) a list of assets and liabilities.

12.

That to facilitate the final hearing referred to in these orders, the court provide a video link to the Adelaide Registry to enable the wife (should she so chose), to attend and participate from Adelaide including giving evidence from there.

AND THE PARTIES SHOULD NOTE:

A. Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B. Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Strahan (“the husband”) opposes the application but has an alternative proposition which in essence, is that he will put $300,000 in his solicitor’s trust account to be paid to the wife for her legal fees for the forthcoming property trial upon its conclusion. All of this sounds simple enough but it has to be seen in context. These are substantive property and spousal maintenance proceedings which began about 12 years ago and, despite numerous court hearings, the matter might appear no closer to being heard, let alone resolved. However, in September 2016, Austin J set the case down for final hearing in April 2017. One would have thought that six months was ample time for the parties to be ready for trial where they have been arguing for years. The wife engaged lawyers in South Australia and they appeared at a first mention hearing before me early in 2017 at which discussion occurred about a trial timetable including a day being allocated before the final hearing for all outstanding interlocutory issues. The solicitor advocate told the court that the wife was intending to pursue discovery and litigation funding at the intended allocated interlocutory hearing. Subsequently however, the wife terminated the instructions of those solicitors before any application was filed. Quite unusually in this case, the wife, as a self-represented litigant, then filed the present application along with supporting affidavit material in which she set out complaints she had about her now former lawyers. I consider it important to observe that, to the extent that any complaint about the lawyers has been made, it is not appropriate for me to make comment let alone any finding as those persons have not only not been given an opportunity to be heard, but may not even know of the existence of the complaint. The affidavit material of both the husband and the wife in this case, indicates there have been quite a number of lawyers involved on behalf of the wife over the 12 year journey. The wife’s current lawyers have only just joined the proceedings. The immediate application is being determined on the basis of the affidavit material filed by the wife. I have also had the benefit of reading the husband’s untested affidavit of evidence in chief which he says he proposes to rely on for the trial. In September 2016, in setting the case down for trial, Austin J ordered each party to file their final affidavit evidence. The husband complied; the wife did not. Thus, I am aware of the husband’s substantive application for orders but not those proposed by the wife. The last application for substantive orders filed by the wife was in January 2009. It sought orders including parenting and child support issues relating to the parties’ only child who is now an adult. In that application, the wife sought alteration of property interests relating to five pieces of real estate. In his amended response filed 1 March 2017, the husband agreed to transfer four out of the five properties she sought in 2009. A fifth property, not mentioned in the wife’s application, is referred to by the husband as vacant land upon which he understands the wife wishes to construct a new home.

Ratio Decidendi

Legal Principle Established

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