Strahan and Strahan (No. 2)

[2008] FamCA 489

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 2) [2008] FamCA 489

FAMILY LAW – PRACTICE AND PROCEDURE – Extension

APPLICANT: Mr Strahan

RESPONDENT: Mrs Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 25 March 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC with Ms McMillan and Mr Berman

SOLICITOR FOR THE APPLICANT: Robinson and Mason

COUNSEL FOR THE RESPONDENT: Mr Abbott QC, Ms Pyke QC and Mr Kearney

SOLICITOR FOR THE RESPONDENT: Donaldson Walsh

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ann Bills & Associates

ORDERS

Property settlement issues

1. By consent that the affidavit filed on behalf of the husband by his solicitor Ms Mason on 12 March 2008 be uplifted and replaced by an affidavit of Ms Mason sworn on 19/3/08 and tendered to the court this day.

2. That the time for the husband to file and serve his affidavit of evidence in chief be extended to 4:00pm on 7 April 2008.

3. That the Application in a Case filed by the husband on 12 March 2008 be dismissed and removed from the active pending cases list.

4. That on or before 4:00pm on 23 April 2008 the husband file and serve an affidavit detailing the documents sought by the single expert witness Ms E which he alleges he is not able to provide and detailing the reasons for that.

5. That further consideration of the issue of property settlement be adjourned to 9:15am on 24 April 2008.

6. That the single expert witness Ms E attend the adjourned hearing by way of telephone link.

7. That leave is granted to the husband’s legal representatives to attend the adjourned hearing by way of telephone link.

8. That the subpoena issued to D Pty Ltd on 22 January 2008 be dismissed.

9. That the Application in a Case filed by D Pty Ltd on 15 February 2008 be dismissed and removed from the active pending cases list.

10. By consent that the costs in relation to the subpoena for D Pty Ltd are to be agreed or taxed.

11. By consent that the costs in relation to the subpoena for H Pty Ltd are to be agreed or taxed.

Child Issue

1. That further consideration of the child issue be adjourned for mention to 9:15am on 24 April 2008.

IT IS NOTED that publication of this judgment under the pseudonym Strahan and Strahan is approved 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

MR STRAHAN

Applicant

And

MRS STRAHAN

Respondent

EX TEMPORE REASONS

1. The husband filed an Application in a Case on 12 March 2008 seeking an extension of time to file his affidavit of evidence in chief until 4:00pm on 2 April 2008, and I am now told that a further extension is sought until 4:00pm on 7 April 2008 and an affidavit has been filed in support of that further extension of time.  I am not in a position to make any findings as to what has been put by way of excuses and I take on board what Mr Abbott says in opposing that application. 

2. If the circumstances were different, for example, if we had a date for trial, there would be no further extension of time.  The husband has had more than ample time to complete his affidavit.  There have been 2 or 3 extensions sought and granted already and there is nothing new in the affidavit material in support of this application. This causes prejudice to the wife and puts her at a disadvantage in relation to any negotiations; however I am told that a conference has been arranged for tomorrow in any event.

3. I well remember the opposition which the husband instructed his counsel to put to me when the wife sought time to file her own affidavit.  However, this matter is not listed for trial yet and therefore there is time for both parties to finalise their affidavits. Only because of that do I propose to grant this application.  To repeat though, I may not be as generous on the next occasion, if there is one.

4. On 1 February 2008 I made various orders in relation to the completion of the report by Ms E and in particular that she provide a progress report and if possible some indication as to when she is able to complete her valuation reports either in writing by 4:00pm on 19 March 2008 or orally by attending the hearing on 25 and 26 March 2008.  Ms E has complied with that order by forwarding a letter of 18 March 2008, however, because of the husband’s failure to fully comply with all her requests for documents, Ms E says in her letter that she is not in a position to advise when her report is likely to be completed. 

5. I’m told by Mr Ackman that within the next 7 to 14 days the husband anticipates being able to comply with all the requests made by Ms E save and except in respect of documents that are not in his possession or control.  As has been said Ms E’s report is vital not only in terms of the valuation that it will provide but also in terms of when this trial can be listed.  I am anxious that this matter not be delayed any further and I have canvassed with counsel what orders if any should be made to ensure that Ms E is in a position to complete her report. 

6. At the end of the day I have settled on a process whereby I propose to adjourn this matter to 24 April 2008 and in that time the husband will have complied with the request of Ms E to the extent that he can. Ms E is available on 24 April 2008 and I require her to attend that hearing by way of telephone link and also I propose to order the husband to file an affidavit as to his compliance with the requests of Ms E and in particular indicating what documents she has requested that he is unable to provide and what the reason is for that. 

7. Mr Ackman has indicated that his client may not be in a position to provide such an affidavit by 24 April 2008 but I don’t consider that I can wait any longer than that.  At the very least Ms E will be able to tell us on that day what documents are outstanding even if the husband is unable to comply.  I still propose to make an order for the husband to file such an affidavit.

8. I want to now deal with the subpoenas issued to D Pty Ltd and H Pty Ltd.  On the last occasion, namely 3 March 2008 I set aside the subpoena directed to H Pty Ltd and adjourned further consideration of the subpoena directed to D Pty Ltd to today.  I am told that in relation to the subpoena to D Pty Ltd that subpoena is not being pursued.  However, there is an order sought by consent in relation to the costs of D Pty Ltd and of H Pty Ltd and I propose to make those orders.

I certify that the preceding 8 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 March 2008.

Associate