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

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

Order 1 made on 11 May 2016 is discharged.
The Further Amended Application in a Case filed on 29 April 2016 is dismissed.

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

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.

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

IT IS FURTHER ORDERED THAT

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.
The setting down and trial fees shall be paid by the applicant wife and respondent husband in equal shares, by Friday, 16 December 2016.
The applicant wife shall file and serve any Amended Application by Friday, 30 September 2016.
The respondent husband shall file and serve any Amended Response by Friday, 21 October 2016.
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.
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.

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

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) [2016] FamCA 826
Case: [2016] FamCA 826
Decision Date: 1 September 2016

CaseChat Overview and Summary

In *Strahan and Strahan (No 3)*, Austin J of the Family Court of Australia considered applications and counter-applications by the applicant wife and respondent husband. The proceedings involved the discharge of a previous order, the dismissal of an application and a response, and the reservation of costs.

The court was required to determine the procedural steps necessary for the progression of the matter towards final trial. This included setting a trial date, allocating responsibility for fees, and establishing timelines for the filing and service of amended applications, responses, financial statements, affidavits, and case outline documents. The court also addressed the notification of single expert witnesses and the issuance of updated subpoenas.

Austin J made orders by consent, discharging an earlier order and dismissing the Further Amended Application in a Case and the Response to an Application, save as to costs. The court then set the trial for 3 April 2017, with specific directions for the parties regarding payment of fees, filing of documents, and notification of expert witnesses. Leave was granted to issue update subpoenas, and parties were directed to file and serve a Case Outline Document. The court also declined an oral application for variation of a previous order.

Orders

Orders of the court

BY CONSENT, IT IS ORDERED THAT

Order 1 made on 11 May 2016 is discharged.

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

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

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.

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

IT IS FURTHER ORDERED THAT

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.

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

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

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

10.

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.

11.

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.

12.

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.

13.

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.

14.

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.

15.

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

16.

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.

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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