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 still a problem.
The current application is based on what is now perhaps best described as some certainty of funding for the future. I do not consider that the uncertainty here arises from that so much as for the potential for the wife to terminate her legal practitioners’ instructions, if she does not accept the professional advice she receives or the way in which her case is prepared.
The evidence relied upon is an affidavit of Mr Rowley, which was sworn last Friday. To some extent there are departures from that evidence by the submissions that were put to me by senior counsel but they are not significant.
The affidavit at paragraph 10 refers to the fact that in October 2017, Mr Rowley was approached by the wife to act for her in the proceedings. He said that he advised her that he would give consideration to acting for her, providing she gave him documentation and time to inform himself on the issues. He then received documentation on a rolling basis and advised her that he would act for her for the limited purpose of making an application to vacate the trial and obtain further funding.
As it now transpires, that position, as put to me by senior counsel today, has moved on. At paragraph 12.1 of the affidavit, Mr Rowley said that he was informed by the wife that she does not have available to her the funds for legal representation to prepare for and attend the final hearing of the proceedings. It is troubling that no alternative method had been mentioned to funding. As I recall, in previous matters I rejected an application for legal funding on the basis that there were properties that the wife would become entitled to simply by the husband offering them as part of her final property entitlements There was no explanation or exploration about that option.
At 12.2 of the affidavit, Mr Rowley said that he was informed by the wife that she held the opinion that she was not able to adequately represent herself in the proceedings and therefore needed representation. Unfortunately, as the former High Court justice Michael Kirby once said, legal representation in Australia is a privilege, not a right, and as all courts in this country now know, many litigants have to represent themselves. In this case, the wife has a choice, and the proposed course of action she has put does not give me a lot of confidence.
At 12.3 of the affidavit, Mr Rowley said that he was informed by the wife that she does not have ready access to her files or documents that have been disclosed in the proceedings. She told him that that documentation was voluminous and was presently withheld, and denied to her, by her former lawyers. As had been previously discussed in the arguments in the earlier hearings, that issue was in many ways controlled by what the Full Court said relating to a lien. What is troubling about that, though, is that I am not sure how the problem would be resolved and would assist the lawyers acting for the wife, if they were unable to somehow resolve it with their present instructions. There is no indication in the affidavit as to how that issue would be resolved.
In the affidavit, at paragraph 19.4, Mr Rowley deposed to the fact that he had been informed by the wife that the husband had initially removed approximately $142 million from the jurisdiction and also had unlimited funds at his disposal to defend the proceedings. That is not the first time that issue has been raised before me. It is correct, to say that issue was raised 10 years ago. Nothing seems to have moved on – in terms of the investigation in relation to that money – notwithstanding the husband has responded to it.
It is significant in this case, that at 12.4.2 of Mr Rowley’s affidavit, he acknowledges that the wife has spent something in the vicinity of $20 million on legal fees and not achieved much. Senior counsel has submitted to me today that the raising of the $142 million concern of the wife is not necessarily a matter that binds the way in which the case would be conducted. It is a matter entirely at the wife’s discretion as to how she conducts her case and whether she follows advice. I agree with that.
The difficulty, however, is that, if it is something that concerns her then notwithstanding 10 years and $20 million of legal fees, the issue still seems to remain unclear. The wife could cross-examine the husband on that issue – presumably – to show that either he has not been candid about his disclosure or – alternatively – that all of the assets under his control should be transferred to her. The dilemma for me, however, is that I have no idea what the wife’s case in this particular instance is. I say that because in September 2016, the matter was set down for trial, and various trial orders have since been made. Yet the evidence upon which the wife intends to rely still remains something of a mystery.
At paragraph 17 of Mr Rowley’s affidavit, he refers to the fact that the wife has ongoing health issues and has a particular difficulty, because she has to spend time caring for her son Mr S. Mr S is now an adult but has significant disabilities. The affidavit says that the wife informed Mr Rowley that she continues to have impediments to her ability to prepare for the final hearing because of those matters. The affidavit does not say – and I presume it is not simply an oversight, a lot of the amount of money that the wife has been receiving, has also been spent on people assisting her to care for Mr S. That issue was not mentioned. It certainly was in previous proceedings.
Another difficulty is that the wife was not present because of a medical position recognised by her doctor, which I understand to be anxiety and stress. There is no indication to me whether that problem will be ameliorated by either treatment or – indeed, disappear – by the time that either senior counsel thought the case would be ready to proceed, in or indeed, that of the solicitor in his affidavit.
It is particularly difficult, for me to rely upon that health evidence, notwithstanding the absence of the medical certificate, albeit I accept that senior counsel has seen that certificate, because arrangements were made for the wife to attend the court in Adelaide and for the matter to be dealt with by video link up to Melbourne. Those arrangements were in place today. Whether being in Adelaide would have created a problem I do not know, but in any event, I am now unsure about the capacity of the wife not just to attend court but also to provide the necessary instructions for the preparation of the proceedings.
I turn then to the issue of litigation funding. At paragraph 21 of Mr Rowley’s affidavit, he deposed his instructions being that the wife was extremely critical of legal representation she has had from time to time. He acknowledged that some of that had been publicised. He also said that she felt that some of her legal advisers had seen the proceedings as a vehicle for their own remuneration rather than an exercise in advancing her legitimate legal interests. That is not a persuasive argument to justify the adjournment here. The reality is that I am aware that solicitors have been engaged and gone off the record for a variety of reasons, and I have been told by counsel for the husband that there have been proceedings in various courts involving those solicitors over costs or other issues.
I also have the benefit of an affidavit in most unusual circumstances where early in 2017, the wife terminated her legal representation and was highly critical of what her then lawyers were doing. I previously described that as a frolic of their own. I am not for a minute suggesting that Mr Rowley is in that category, but the point being made is that I could not have confidence that Ms Strahan would not have some problem in the future with her lawyers and therefore the wheel would turn again.
At 22.9.2 of Mr Rowley’s affidavit, he said, dealing with the issue of litigation, despite $300,000 being set aside in the husband’s solicitor’s trust account, she had not been able to find a solicitor who would undertake to work on that basis. Mr Rowley pointed to the most recent terminated retainer as evidence of that. In the August hearing, senior counsel for the wife raised a number of objections of a professional nature to that course of action.
Mr Rowley went on to say that his firm was not prepared to act for the wife on that basis, and then a new proposal came forward. Senior counsel said that the court could have some confidence in relation to the funding here because of three specific things. The first is that the wife would sign an irrevocable authority in relation to their fees. The second would be the access to that $300,000 presumably when the case concluded. The third would be that the wife would execute a charge over any property that she might receive either in the form of cash or real property.
The wife is aware that the husband is offering her real property already. Whilst three things I just mentioned would give me a lot of comfort here that the present lawyers would continue to be involved, what counsel could not guarantee me, and I would not expect that they could, the wife may terminate the retainer should she not be content with what she was hearing from her lawyers.
Senior counsel for the wife submitted that if the Court allowed the adjournment and those funding issues were put in place, the case could be ready to proceed in some weeks. There is some difficulty for me in relation to that as well. At paragraph 23.1, Mr Rowley said that the final hearing should take 23 days. I am not sure how he calculated that, but I note that in September 2016, Austin J, when setting it down, allowed 13 days.
My assessment of the situation is very much limited by what I have read from the husband’s side and I have no idea how the husband’s evidence would be challenged, but it seems remarkable to me, even on a defended basis, that this case could take more than a few days. I am not for a minute suggesting that there is any magic in the 23 days, let alone the 13 days, but I had no idea how that calculation was made.
That is relevant because Mr Rowley then went on to say that it would take three months to prepare for the final hearing of the proceedings if his assumption about the funding was correct. In other words, if the matters that senior counsel put to me were implemented, then it would take three months to prepare for the final hearing. On that basis, the case could not be started until at least March next year and if indeed it was anticipated that 23 days would be allocated, that would need a lot of thought. Twenty three days would have to be found and that would further delay the conclusion of this case.
At paragraph 23.3 of the affidavit of Mr Rowley, he said that working on the assumption that he had the necessary funding, a final hearing would cost something in the vicinity of close to $1.7 million. That was based on 23 days. I have no concept of why that amount of money would be necessary in a situation like this other than the fact that the practitioners acting for the wife would have an enormous job in catching up because they would be starting from nothing. But, in any event, it is hard for me to see where 23 days comes in.
The real difficulty in relation to preparation can be seen in paragraph 25 of Mr Rowley’s affidavit. At 25.2, Mr Rowley reiterates effectively what I was told by senior counsel and that is that, subject to things such as the irrevocable authority, the charge and access to the trust account funds in due course, the wife would be able to proceed. He says the wife is prepared to sign that irrevocable authority and that is consistent with what senior counsel told me were his instructions this morning. Again the difficulty for me is that Mr Rowley said that he began acting for the wife in early October and at this late hour, those documents are still not in place.
I have no doubt that senior counsel was giving me quite proper assurances in relation to the matter, but absent a very clear execution of documents of the nature contemplated, I could not be confident that this case could be ready in the timeframe that either of the practitioners mentioned in the affidavit or by the submissions this morning.
At 25.3 of Mr Rowley’s affidavit, he said it was difficult for him to assess the amount of work that would be required to prepare for the final hearing. He considered that he needed to do the trial affidavit and a financial statement but he then added that he needed to consider the extent of compliance with orders for disclosure in these proceedings. That also does not give me a lot of confidence that, absent some clear understanding of the past, there would not be a looming discovery issue, notwithstanding the assurances given to me by senior counsel today.
All of those matters are relevant to the issue of discretion. Mr Livesey’s final matters are probably the most that I need to concentrate on. He said that there were five matters that affect my discretion. The first relates to the fact that the wife acknowledges now that this is her last opportunity. It is very sad for me to say that I have heard that before. Indeed, as I recall it, Mr Glick commenced his submissions on the last occasion with that statement. Mr Glick clearly sought an adjournment on the basis of it being underpinned by a resolution of the litigation funding and that is not the situation here, but it is troubling that since September, when the last solicitor terminated her instructions, not much has happened. I could not, therefore, be confident that this last opportunity would, in fact, be just that.
The second point was that if the adjournment was granted, there would be no uncertainties about the way in which the matter would be readied for trial. The statistics that Mr Wilson of counsel for the husband relies upon indicates something different. Whilst I have no doubt that the solicitor and counsel would act appropriately, the real problem I have is the prospect of the termination of those instructions if the case did not go the way that the wife wanted. Therefore, contrary to that submission, I think there are uncertainties about the future.
The third and the fourth points are that having legal representation is of assistance to the Court and particularly otherwise there would be a contradictor, if the matter proceeded on an undefended basis. Both of those matters are clearly correct, but I observe that the evidence is what it is.
The husband has put his position very clearly and succinctly and the wife has had ample opportunity to test some of the propositions that he has put in his trial affidavit which has been before the Court for many months. There is no doubt that legal representation assists the Court, but as I earlier observed, legal representation is now, in this country, becoming a luxury.
There is also a view that a Court should not commence a case unless there is a contradictor but I think the better view is that sometimes it is harder to prove an undefended case than it is a defended one.
In this jurisdiction, the fundamental principle about the alteration of property interests lies in the fact that the Court has to be first satisfied that it is just and equitable to alter interests at all and if, ultimately, that determination is made, then the Court still has to be satisfied that the order proposed is just and equitable. As the authorities also point out, the Court is not bound by the proposals of the parties. Unashamedly therefore, the husband would not be getting what he wants by default.
The fifth point that Mr Livesey raised was that there would be some finality with certainty if the wife was represented by lawyers at trial. Again, I do not have the confidence about that, knowing that whether the wife was represented or not, she always has avenues of appeal and there are difficulties that could arise under such provisions as s 79A of Family Law Act 1975 (Cth) (“the Act”).
The wife has had ample time in this case over a number of years to sort out how she wanted to conduct the proceedings and I accept that the Court has, at times, not been necessarily as vigilant as it might have been. But, in the 12 months or more that I have dealt with the case, I have given the wife at least two occasions to try and get her house in order and whilst she has clearly had difficulties with getting representation, the material that might give me some indication as to the nature of the argument has been absent.
On the basis of all of those matters, my view is that the discretion should not be exercised in her favour and her application in a case is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 November 2017.

Associate:

Date: 23 November 2017