Strahan and Strahan (Various Interim Orders)

[2010] FamCA 923

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (VARIOUS INTERIM ORDERS) [2010] FamCA 923

FAMILY LAW – PRACTICE AND PROCEDURE – whether the trial dates should be vacated – where the wife has appealed from a previous decision ordering that the husband pay $825,000 to fund the preparation of the trial – where the outcome of the appeal will impact upon the wife’s ability to prepare for the trial – orders made vacating trial dates

Family Law Act 1975 (Cth)

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills & Associates

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 1 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC
[with Mr Holland]

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC

[with Mr Berman]

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICTIOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ann Bills & Associates

Orders

1. The conclusion of trial listed to commence for four weeks on 8 November 2010 before the Honourable Justice Dawe is vacated.

2. The husband’s Application in a Case filed on 30 July 2010 in relation to the “GG” documents is adjourned to Monday 11 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING the Independent Children’s Lawyer is excused from attending on the adjourned date.

3. The issue of the “GG” video is adjourned to Monday 11 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING that the husband is producing to the wife a USB port containing what he asserts to be the “GG” video.

4. Further consideration of the wife’s Application in a Case filed on 1 April 2010 in relation to the “Austrac” matter is adjourned to Monday 11 October 2010 at 10.00 am before the Honourable Justice Dawe UPON NOTING the wife is given leave to amend her application PROVIDED THAT the amended application and supporting affidavit are filed and served by 4.00 pm on 7 October 2010.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Various Interim Orders) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to this matter, I am dealing initially only with the question of whether the trial should proceed in November and whether, if it does proceed in November as currently listed, it should proceed with the issues concerning the child first with the trial split so that the Court hears first the children’s issues and then separately the financial issues.  Mrs West, counsel for the Independent Children’s Lawyer, is correct to stress the length of time these proceedings have been before the Court and the attempts the Court has made to list the matter for final hearing, in particular the attempts since the fresh proceedings after consent orders were made in relation to the children’s issues in 2007.

2. The principles relating to matters of procedure in this Court include a consideration of the best interests of the child.  However, the Court is also required to ensure that there is no hardship or unfairness incurred for any of the parties and weigh that carefully with the best interests of the child.  It appears, on the face of it, that the reports required from Dr C and Professor Y could be available prior to the proposed commencement date of the trial in November.  However, the timeframe would be quite short.  That does not mean to say that proper instructions could not be gained in relation to comments on that report but whether further evidence might be required is a matter that counsel can only guess at, not having seen either of Dr C’s or Professor Y’s report.

3. The significant factor is that the wife has appealed the decisions of the Court and one of the decisions awaiting determination by way of appeal is my decision in which the payment by the husband to the wife for funding for preparation for the final hearing was limited in accordance with the terms of the order I made.  Whilst on the face of it, that would appear to be an order which relates to money, it is an order which has a direct effect upon the wife’s method of preparing the matter for trial.  It is also correct to say that previously the Court has indicated that the matter would proceed on a trial where both the property and the children’s issues would be heard together.

4. That is not a significant factor in this case which would prevent me from now splitting the children’s issues from the financial issues if that were the just and equitable step to take.  However, I take into account the restrictions that the wife alleges would be placed upon her preparation for the trial and the possible disadvantage to the wife if the trial started (either in relation to both issues or in relation to the children’s issues) before the appeal is determined.

5. Weighing all of those factors up, therefore I am not prepared to split the children’s issues from the financial issues and commence a trial before a Full Court determination of the appeals.  I anticipate therefore that because the appeal is not to be heard until February 2011 and because the property settlement proceedings are not ready to proceed, that the trial dates in November will need to be vacated with a view to allocating further dates in the year 2011.  Dates can be allocated prior to an appeal decision if in fact we are able to determine exactly when the appeal will be heard and perhaps anticipate the timing of a decision.

6. I am therefore vacating the November trial dates for this matter.  I will stand the matter down in relation to the consent order being prepared in relation to the GG video.  The AUSTRAC matter needs to be argued, but there was a request for an adjournment in relation to the other inspection of the GG documents. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  14 October 2010