Strahan and Strahan (No 3)

[2016] FamCA 826

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO 3) [2016] FamCA 826

FAMILY LAW – PROCEDURAL – Where litigation has been pending for 11 years – Where the wife, who is the applicant, asserts she is unready for final trial – Where the wife asserts she remains uncertain as to the extent of the husband’s financial affairs – Where the wife claims there is need for further discovery – Where the wife concedes any proven failure by the husband to give full and frank financial disclosure will enable her to submit for a more generous share of known property – Where the wife claims she needs further litigation funding – Where the wife has not made an application for further litigation funding – Where the intervening period before the allocated trial dates is sufficient time for the parties to prepare –– Ordered that the proceedings be set down for trial

Family Law Act 1975 (Cth)

Black & Kellner (1992) 15 Fam LR 343

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 1 September 2016

PLACE DELIVERED: Adelaide/Newcastle

PLACE HEARD: Adelaide/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Kenny, Camatta Lempens Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

BY CONSENT, IT IS ORDERED THAT

1. Order 1 made on 11 May 2016 is discharged.

2. The Further Amended Application in a Case filed on 29 April 2016 is dismissed.

1. Save as to costs, the Response to an Application in a Case filed on 11 May 2016 is dismissed.

1. The costs of CW Lawyers incidental to the Further Amended Application in a Case filed on 29 April 2016 and the Response to an Application in a Case filed on 11 May 2016 are reserved until final trial.

1. Any and all other outstanding applications for interim orders are dismissed.

IT IS FURTHER ORDERED THAT

1. The trial of this matter is listed in the Adelaide Registry of the Family Court of Australia at 10:00 am on Monday, 3 April 2017, for a period of 13 days concluding on Friday, 21 April 2017.

2. The setting down and trial fees shall be paid by the applicant wife and respondent husband in equal shares, by Friday, 16 December 2016.

3. The applicant wife shall file and serve any Amended Application by Friday, 30 September 2016.

4. The respondent husband shall file and serve any Amended Response by Friday, 21 October 2016.

5. The husband and wife shall each file and serve updated Financial Statements and the affidavits upon which they wish to rely at trial by Friday, 3 February 2017.

6. The parties shall forthwith notify the single expert witnesses in writing of the trial dates and confirm the availability of the single expert witnesses to give evidence on those dates.

1. Leave is granted to the parties to issue update subpoenae to any person or entity to whom a subpoena has been issued in the past.

2. The parties shall by Friday, 24 March 2017, file and serve upon one another, a Case Outline Document containing:

   a.Short Chronology;

   b.Short Summary of Argument; and

c.List of Authorities.

1. If any party should default in the compliance with these orders any other party may, on notice being given to the other parties, seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

2. Liberty to restore the matter to the list on seven days notice for further procedural directions.

3. The Court declines to entertain the oral application of CW Lawyers for variation of Order 2 made on 22 August 2016.

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 ADELAIDE/NEWCASTLE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The current proceedings between the parties were, astonishingly, commenced in 2005. That date is not a mistake. This litigation has been on foot for 11 years. The parties’ child, in respect of whom they sought parenting orders, is now an adult and the parties’ delay has rendered the Court’s power under Part VII of the Family Law Act 1975 (Cth) (“the Act”) otiose. The parties remain in dispute about the division of their property interests pursuant to Part VIII of the Act.

2. The proceedings were listed before me today for procedural directions to determine the parties’ readiness for trial. Surprisingly, the wife, who is the applicant and commenced the proceedings, asserted she was unready for the matter to be listed for trial. She asked that the matter not be listed for trial because she is still uncertain as to the extent of the husband’s financial affairs.  She asserted there were two major issues which were impediments to the matter being listed for trial: first, the need for further discovery, and secondly, her need for further litigation funding. 

3. As to the question of discovery, I am satisfied the past 11 years of litigation have afforded the wife sufficient opportunity to discover all that she would want in respect of the husband’s financial affairs. When pressed on the point, the wife’s legal representative indicated the current problem about discovery arises out of an unanswered letter dated 29 July 2016 sent by the wife to the husband – that is, barely weeks ago. It is asserted that an entity described simply as “KC Trust” has annually distributed significant amounts of money to the husband. That entity is mentioned in the reports of the single expert witness, Ms E, who has apparently prepared many reports for the parties, the last of which was compiled months ago in May 2016. Given the passage of time since the last of those reports was released, I do not accept as a reasonable proposition the assertion the wife has not had sufficient opportunity to investigate the legal entity that is or sits behind the “KC Trust”.

4. As the wife’s legal representative candidly conceded, in the event the husband is cross-examined into a concession at trial that the disclosure of his financial affairs has not been full and frank, in accordance with established authority such as Black & Kellner (1992) 15 Fam LR 343, the wife could submit for more generous provision from the parties’ known property interests. Consequently, I do not accept the wife’s asserted need for further discovery is an adequate reason to delay listing the matter for final trial any longer.

5. As to the second matter addressed by the wife, being her need for further litigation funding, it was conceded by the wife’s legal representative that the husband has already paid to the wife no less than $12.6 million by way of numerous litigation funding orders made in these proceedings. The wife’s need for further litigation funding can abide any separate application she chooses to make. No such application is currently pending.

6. There must come a time at which litigation should be finalised and the delay in these proceedings has been extraordinary. For those reasons, I reject the wife’s request not to set the matter down for final trial. The trial dates allocated are approximately seven months hence. I regard that further period as more than sufficient for the parties to ready themselves for final trial.

7. There was some debate between the parties about the expected duration of the trial. The wife’s legal representative was unable to offer a reliable estimate, but estimated anything between two to four weeks. The husband’s legal representative asserted the trial would take between one and two weeks and indicated the case had previously been listed for trial with an estimated duration of two weeks, though those prior trial dates were vacated for reasons unknown to me.

8. As a consequence, I have listed the trial across three weeks but, allowing for some public holidays in that period, 13 days have been designated for the trial. On the basis of submissions made to today, that appears sufficient.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 September 2016.

Associate: 

Date:  29 September 2016