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 hearing. The wife now seeks that, as her solicitors render invoices, those funds should be released in payment of their services. That application is also opposed by the husband. I do not intend to grant that application.
It is unnecessary to traverse any of the detail of the background save that since the litigation began many years ago, the wife has had 14 firms of lawyers acting for her. From what I understand, there have been a number of disputes after the lawyer’s services were terminated. I do not think it is controversial that there have been cost disputes, including in the State Courts, various appeals, including an appeal about a lien over files, the termination of the services of one firm earlier this year, after which, as a litigant-in-person the wife filed an affidavit being highly critical of their approach to her instructions, and then there has been a complaint about a solicitor who was to hold funds for purposes of a specific task within the litigation, taking those funds as professional fees.
It is self-evident that the case has been bedevilled with problems. Austin J set this case down almost a year ago. The wife has been granted what her senior counsel correctly, and properly, conceded were indulgences. She now seeks another. The nub of her application is that she wishes to put material before the Court. She opposes the husband’s position proceeding on an undefended basis. Senior counsel for the wife submitted that there is no prejudice to anybody by the matter being put off.
It is not appropriate and I agree with Mr Glick on behalf of the wife, that I should descend into the factual circumstances surrounding the most significant parts of the wife’s evidence relating to her health, save for some matters that seem to me to be self-evident. It is clear from the wife’s evidence today that she has a number of health problems. She describes her difficulties as including little sleep, but she also has significant help, which in my view does not detract from her evidence.
In reality, the wife’s solicitor needs time. She is proposing to spend a week, at least, in Adelaide taking witness statements and she will come to Adelaide to do the trial affidavit. She says that the appropriate time for this trial to be relisted is in March 2018 or thereafter. She submits that there is no prejudice to the husband by that period of time.
There are some additional complicating factors here for the wife. It is suggested that junior counsel cannot consider her material, and her solicitor is without funds.
That is the basis upon which it is proposed by the wife that the order I made in April 2017 be varied to allow the solicitor to not only give an undertaking required by the Full Court in relation to the PP documents, which would then enable those documents to be inspected, but also to deliver bills as work was done. They would be paid from the $300,000 currently sitting in the husband’s solicitor’s trust account, which is – as evident from the order I made – deemed otherwise as a partial settlement of property in favour of the wife.
The only purpose of delaying this trial is for the purposes of preparation and, ultimately, the appearance before the Court.
The husband’s solicitor says that this is entirely unsatisfactory. Counsel for the husband raise a number of questions. First, history suggests that it is unlikely that, even if the varying orders were made as proposed by the wife, the solicitors would be able to get the case ready. The argument about the information that the wife wants to investigate is really about storage costs from the husband’s perspective.
In the husband’s view, the wife’s application lack bona fides. I am not prepared to make that finding now. What the husband says, is that the present solicitors came into the record on 27 July, almost a month ago. On that day, Mr Glick of senior counsel appeared on behalf of the wife and indicated that there were health problems for the wife, which is now the material contained in her present affidavit. It was also said on that day that the husband had frustrated the wife’s endeavours to sell properties which would have enabled her to fund her lawyers.
The husband says that that frustration is not correct. In any event, even if it was, there is nothing in the current affidavit that would suggest that taking the course previously considered has been taken any further. In relation to the wife’s health position, there are only the assertions before the Court, and in relation to one of the relevant doctors, the certificate is dated in June. I am therefore unsure what the current position is in relation to the wife’s health.
Even if I accepted her position as she states in the affidavit, there is no sign that that would change. As such, I could not be confident that the case, from her perspective, would be ready to be heard in March.
This issue really has to be determined on the basis of access to justice. In a decision of Forster & Forster (2014) FamCAFC 88, the Full Court considered a decision that I had made not to grant an adjournment for Mr Forster. At paragraph 88 of that determination, the Full Court said this:
We fully acknowledge that the decision whether or not to grant an adjournment of a trial was a matter very much within the discretion of the trial judge. We also bear in mind the principles ….. the granting of adjournments, which emerged from the High Court decision in Aon Risk Services Australia Limited & Australian National University, reported (2009) volume 239 of the Commonwealth Law Reports at page 175.
The Full Court went on to note that in refusing the adjournment, I had relied, it seems, the Full Court viewed correctly, on Aon Risk Services decision. The Full Court went on to say, however, that I was wrong in declining to give Mr Forster an adjournment, because for the first time in what had been a very long history, he had obtained the services of lawyers and there had been some misunderstanding or confusion as to exactly where, let alone when, the case was to be heard. As the Full Court said at paragraph 81:
The appellant had never had the opportunity to present his own case. The trial would have given him that opportunity, and therefore to be denied that opportunity required compelling reasons.
The present case in many ways is distinguishable. The wife has had many opportunities to present her case. Leaving aside the fact, as I earlier mentioned, that Austin J set this down almost a year ago, this case has been in the Adelaide registry for years. Mr Glick quite properly, as I have already indicated, said that the wife had been given indulgences.
In Forster, the Full Court went on to say that in respect of the issue of legal representation, Mr Forster had only for the first time had that opportunity. He had been a litigant-in-person much of the way through the period of time preceding when I heard and refused his adjournment application. Because of the fact that he had legal representation, at paragraph 86, the Full Court went on to say that:
His claim for the need to adjourn the proceedings so that he could be represented was not just another delaying tactic or ploy.
Their Honours said:
Given the history of the matter, it was in our view particularly important that the appellant should be legally represented once his case finally came to trial.
The wife has had lawyers – and as has been observed, there have been 14 different firms involved to date for years. Is this is another delaying tactic or plot? In making a determination here, I take into account the concession that there have been a number of indulgences granted.
The real dilemma is that what the wife wants to present is evidence that she says will show that the husband has not been candid with his evidence as to what assets he has under his control, and which would be amenable to alteration under section 79 of the Family Law Act 1975 (Cth) (“the Act”).
I do not consider that the health issue is of any great assistance here. The real question for me is whether or not there is a prospect that the wife can produce what she is now asserting, exists. I take into account, however, that that assertion was also made at the start of this year, and nothing came from it. Thus, rather than allow the wife a long period of time to file her evidence, what I should be doing is given the wife an opportunity to investigate what she says is, and this is my expression, “the smoking gun”. That would require her to comply with the orders of the Full Court, and indeed then she could undertake the inquiry she desires.
There is reticence on the part of the lawyers to participate in not only giving an undertaking but also in expending money in circumstances where the $300,000 that I ordered to be set aside in April 2017 could not be accessed in the meantime. That is an entirely different issue. I see no reason why I should say that the order I made in April should be varied simply to allow that process to be undertaken and for the lawyers to be paid but that is because of the history of the matter. If there was no history here and the previous solicitors had not had disputes and had their services terminated, I could hardly say that the wife’s solicitors should not have the opportunity to investigate and be paid. Thus, I will not grant the indulgence that the wife seeks to vary the order on the basis that her lawyers are paid as they complete tasks.
I accept that the wife asserts that the husband’s lack of candour will be found in the boxes of documents to which I have referred. The husband’s position today, which has been repeated before me on at least two occasions now, is that the wife will not find anything of assistance to her. That does not mean that the wife cannot undertake the exercise, but it seems to me that I should take into account that the husband has put his evidence before the Court on oath and is prepared to run the trial on that basis.
Ultimately, justice here requires the Court to take into account three different perspectives. The first is that of the wife, and it would seem on the basis of the indulgences the wife has had ample opportunity to get her house in order, including most of this year. The second is that of the husband. His position is that he wants the trial on and over with. It is not simply a case of saying there is no prejudice to him, because the spousal maintenance order is extant, and he has been vociferous in complaining about it continuing on. That might, to some extent, be ameliorated by an order at trial, but it is still a matter to be taken into account in terms of his complaints that he wants this matter concluded. There is some substance to his complaint that 12 years is enough.
The third aspect is that of the public purse and the resources of the Court. It is for that reason that I referred, during the discussion, to the Aon Risk Services Australia decision. There, the High Court made clear that case management principles cannot be an instrument of injustice, but they are clearly relevant to the question of whether or not someone who requires an indulgence should be given it. In my view, the balance of convenience, if nothing else, here requires that the wife be given an opportunity, but a limited one, to investigate what she wants and the issue could then be reconsidered, if indeed the “so-called smoking gun” is found.
There are some problems about adjourning these proceedings in any event for a short period of time. The first is, obviously, the question of counsel and solicitor for the wife. I am told that counsel for the wife has some problems in the period of time, but having regard to the fact that there are other people who could undertake that task, and no specific reason was given to me as to why junior counsel in particular was nominated, I do not consider that that is an issue that I should give any weight to.
I take into account that the solicitor for the wife has indicated that she is a sole practitioner and she has other commitments. That, too, seems to me to be an issue that ought not be given much weight, because what she is doing is effectively taking on what is a complicated case, knowing that there are those problems with her other clients. To some extent, if she cannot undertake the task that the wife needs done, she has an obligation, in my view, to say that. On that basis, therefore, the issue about the wife’s legal team and their problems is not really one that should be given any weight.
The second problem about the adjourned period, though, is that both the husband and the wife have an unusual relationship where they join with each other and take their now adult son to the United States for some form of medical treatment. Both of them have planned to be away for the period from the end of September through to almost the end of October. On any view, the wife could undertake the task that I think needs to be done here electronically, with some professional assistance in Adelaide doing what is needed to be done.
The period of time that is necessary for the wife to undertake that task should be limited, and that the trial should commence immediately after that exercise is concluded, unless there is a further application, to show that the “smoking gun” has been found.
On that basis, the period of time that I consider the trial should be listed for is late October-early November. My own calendar for late October is already such that I cannot move what is currently there, but I have a week commencing on 13 November which is completely clear.
In terms of the $300,000 order, as I have indicated it is my view that it is not appropriate for me to make the order, notwithstanding all of the problems that have been raised. The wife has had ample opportunity to come up with an alternative funding solution, and I am not sure that the $300,000 is the only one available to her. On that basis, I decline to vary the order that I made on 26 April 2017 to give the wife the opportunity to send invoices as and when they arise.
I will dismiss the wife’s application in a case and have these reasons immediately published. I will vacate the trial date and adjourn the matter to commence at 10 am on 13 November, on the same arrangements as previously as an estimate of four days. The wife is to file and serve any affidavit material upon which she intends to rely by 4 pm on 2 November.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 August 2017.

Associate:

Date: 11 September 2017