Strahan and Strahan (No 5) - [2017] FamCA 1177

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 5)

[2017] FamCA 1177

FAMILY LAW – ADJOURNMENT – Where the wife, having engaged new lawyers seeks an indulgence to pursue documents she maintains will show the husband has not been candid – Where adjournment granted but limited – Where the wife seeks to have her solicitors aid as and when they submit accounts to the solicitors for the husband who hold funds pending the final hearing – Application denied.

Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175
Family Law Act 1975 (Cth)

Forster & Forster (2014) FamCAFC 88

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

25 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick SC

SOLICITOR FOR THE APPLICANT:

Dst Legal

COUNSEL FOR THE RESPONDENT:

Mr Wilson SC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

The hearing on 4 September 2017 is vacated.
The final hearing of all outstanding applications is listed for 10 am on 13 November 2017 as a four day matter on the same arrangements as for the previous hearing.
The wife is to file and serve any affidavit upon which she intends to rely by 4 pm on 2 November 2017.
The application in a case filed 24 August 2017 is dismissed.
The reasons this day be transcribed and be made available to the parties.

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 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

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

The final hearing of the property application in this case is set down to commence on 3 September after some 12 or more years of interlocutory steps. With just over a week to go, the wife now seeks to vacate the hearing, adjourn the trial and have it listed after March 2018. The husband opposes that course. I do not intend to grant the wife’s application, but I will delay the start of the final hearing.
A second issue concerns litigation funding. On 26 April 2017, I made an order that of $300,000 held on trust for the wife by the husband’s solicitor in what my order described as a part property settlement in the wife’s favour, monies were only to be released to the wife at the conclusion of the final…

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 5)

Details

AGLC: Strahan and Strahan (No 5) [2017] FamCA 1177
Case: [2017] FamCA 1177
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Strahan & Strahan (No. 5)*, considered applications by the wife concerning the adjournment of a final property hearing and the release of funds held in trust. The wife, having recently engaged new legal representation, sought to vacate the scheduled final hearing, which was due to commence after approximately 12 years of interlocutory proceedings, and have it relisted for March 2018 or later. She also sought to vary a previous order to allow her solicitors to be paid from funds held on trust by the husband's solicitor as their accounts were rendered, rather than upon the conclusion of the final hearing. The husband opposed both applications.

The court was required to determine whether to grant the wife's applications for a significant adjournment of the final hearing and for variation of the litigation funding order. Central to these determinations was the wife's assertion that she needed further time to gather documents which she believed would demonstrate the husband's lack of candour regarding his assets, and her claim that her current health issues and the financial difficulties of her legal team necessitated these requests. The court also had to consider the principles governing adjournments, particularly in light of the extensive history of the proceedings and the wife's numerous changes in legal representation.

Justice Cronin, in his reasoning, acknowledged the wife's health concerns and her desire to present evidence of the husband's alleged lack of candour, referring to this as a potential "smoking gun." However, he noted the protracted history of the case, the wife's previous opportunities to prepare her case, and the significant indulgences already granted. Applying principles from *Forster & Forster* and *Aon Risk Services Australia Limited & Australian National University*, the court found that while access to justice is paramount, the wife's situation was distinguishable from cases where an adjournment was granted to a litigant-in-person who had only just obtained legal representation. The court concluded that the wife's legal team's difficulties and the wife's health issues did not, in the context of the case's history, warrant a lengthy adjournment or the variation of the funding order.

Consequently, the court dismissed the wife's application to vacate the hearing and relist it for March 2018. Instead, the final hearing was vacated from its original date and relisted for 13 November 2017, to commence as a four-day matter. The wife was ordered to file and serve any affidavit material she intended to rely upon by 4 pm on 2 November 2017. The application to vary the order regarding the release of funds from the trust account was also dismissed.

Orders