Strahan and Strahan (No. 3) - [2017] FamCA 948

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 3)

[2017] FamCA 948

FAMILY LAW – PROPERTY – Adjournment application – where wife seeks adjournment to seek to prepare her case – where proceedings extant for over 12 years – where husband ready to proceed – where no certainty of lawyer involvement – application refused.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

13 November 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livesey QC

SOLICITOR FOR THE APPLICANT:

Charlton Rowley Legal

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That the application in a case filed by the wife on 13 November 2017 is dismissed.
That the husband has leave to proceed in the absence of the wife on an undefended basis.
That the amended application for final orders filed by the wife on 1 June 2010 is dismissed.
That the amended response of the husband filed 1 March 2017 is adjourned to a date to be fixed and judgment is reserved.

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 (No. 3) 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

By an application in a case filed with leave today, Ms Strahan seeks an adjournment of a trial listed to begin today. The application in a case is supported by an affidavit of her solicitor. I propose to refuse the application for the adjournment for the following reasons.
The application for the adjournment was begun by senior counsel for Ms Strahan acknowledging that this is one which, if granted, would be another indulgence. This case has been littered with indulgences – certainly – over the last 12 months. It is not necessary for me to repeat what I said in August 2017, but to a very large degree I rely on the same philosophical points I there made.
In August, the issue was that the wife was not ready for trial. The foundation for the adjournment application then was that she needed litigation funding. Litigation funding had been raised in previous matters and had not been resolved to her satisfaction. In August, I granted the application for the adjournment but it is clear from the material before me now, the litigation funding is…

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. 3)

Details

AGLC: Strahan and Strahan (No. 3) [2017] FamCA 948
Case: [2017] FamCA 948
Decision Date: 13 November 2017

CaseChat Overview and Summary

In *Strahan and Strahan (No. 3)*, the Honourable Justice Cronin of the Federal Circuit Court of Australia considered an application by the wife and a response by the husband. The dispute concerned final orders sought by the wife, with the husband seeking to proceed in her absence on an undefended basis.

The court was required to determine whether to dismiss the wife's application filed in November 2017 and her amended application for final orders filed in June 2010. Additionally, the court had to consider whether to grant the husband leave to proceed with his amended response on an undefended basis, and the appropriate course for the husband's amended response filed in March 2017.

Justice Cronin dismissed the wife's application filed in November 2017 and her amended application for final orders filed in June 2010. The court granted the husband leave to proceed in the absence of the wife on an undefended basis. The husband's amended response filed in March 2017 was adjourned to a date to be fixed, with judgment reserved.

Orders

Orders of the court

That the application in a case filed by the wife on 13 November 2017 is dismissed.

That the husband has leave to proceed in the absence of the wife on an undefended basis.

That the amended application for final orders filed by the wife on 1 June 2010 is dismissed.

That the amended response of the husband filed 1 March 2017 is adjourned to a date to be fixed and judgment is reserved.

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

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Ratio Decidendi

Legal Principle Established

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