STRAHAN & STRAHAN

[2016] FamCA 388

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN [2016] FamCA 388

FAMILY LAW – PRACTICE & PROCEDURE – trial directions – where the matter is adjourned for the purpose of making trial directions at a later date – where the parties have agreed to participate in private mediation.

FAMILY LAW – PROPERTY SETTLEMENT – interim orders – where an order is made that the husband pays to the wife’s solicitors a sum for the purpose of payment of legal fees and disbursements – where the parties are required to file updated financial statements – where costs are referred to the trial judge.

APPLICANT:

Ms Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 20 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Heinrich

SOLICITOR FOR THE APPLICANT: Camatta Lempens Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

BY CONSENT IT IS ORDERED THAT

1. The parties shall attend private mediation with their legal representative in Adelaide, South Australia on Thursday 11 August 2016 and on Friday 12 August 2016 before Mr Stephen Walsh, QC as the mediator

2. The respondent husband shall pay all of the following costs relating to the above mediation:

   2.1the fees and disbursements of Mr Stephen Walsh, QC; and

   2.2any costs, fees and expenses incurred in relation to the hire of any venue for the purposes of the mediation.

3. The parties have liberty to apply on short notice in the event the respondent husband does not comply with any part of the orders referred to in paragraphs 1 and 2 above.

4. Fifty per cent of any payments made by the respondent husband pursuant to paragraph 2 above and 100 per cent of any payments made by the respondent husband pursuant to paragraph 8 hereof shall be regarded as interim property settlement payments.

IT IS FURTHER ORDERED THAT:

1. The determination of the final proceedings are adjourned to Monday 22 August 2016 at 2.15 pm before the Honourable Justice Dawe for further directions in relation to trial allocation, length of trial, the number of witnesses and for the making of arrangements for an interstate judge to hear the matter.

2. On or before 17 June 2016 the parties shall each provide complete copies of their respective passports for the last five [5] years to the other parties’ legal representative.

3. On or before 30 June 2016 the husband and wife shall each file and serve an updated statement of financial circumstances.

4. The respondent husband shall make the following payments to the applicant wife’s solicitors, which shall only be used for the purposes of paying the applicant wife’s legal fees and disbursements:

   8.1SEVENTY FIVE THOUSAND DOLLARS [$75,000.00] which shall be paid on or before Friday 17 June 2016;  and

   8.2SEVENTY FIVE THOUSAND DOLLARS [$75,000.00] which shall be paid on or before Friday 19 August 2016 PROVIDED THAT the mediation referred to in paragraph 7 has taken place.

5. The applications in paragraphs 3 and 5 of the Response of the applicant wife filed on 27 January 2016 and in paragraphs 5 and 6 of the Amended Application in a Case of the applicant wife filed on 29 April 2016 are adjourned to Monday 22 August 2016 at 2.15 pm before the Honourable Justice Dawe for mention.

6. The applications in paragraphs 3 and 4 of the Response filed by the husband on 16 May 2016 are dismissed.

7. Costs of the parties with respect to the Responses and Amended Application in a Case referred to in paragraphs 9 and 10 above are referred to the trial judge.

8. The wife to file and serve an affidavit to which is annexed the reports of the single expert, Ms E, by 4.00pm on Friday 17 June 2016.

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).

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. I deal first with the question of giving trial directions and listing the matter for trial.  As can be ascertained from my comments today and from the remarks I have made in previous judgments in this matter, I consider it appropriate that the matter be listed for trial as soon as practicable, it having been outstanding for more than 11 years and the parties having spent an enormous amount on legal fees.  However, listing the matter now and setting it down for trial would be a difficulty because then the preparations for trial, which have attempted to have occurred in the past, might be wasted if all of the material is not available.

2. I have been referred to two of Ms E’s reports, neither of which have been filed in the Court and, therefore, cannot give serious consideration to the ongoing complexity alleged in relation to ascertaining the husband’s assets. 

3. There has also been argument in relation to questions of disclosure and discovery and those matters should be taken into account.  It is also pleasing, however, to see that the parties have agreed to attend private mediation in August of this year and that may be a step in the direction of resolving the matter. 

4. I have also indicated that the matter needs to be listed before a visiting judge.  I suggested October 2016, but I am now told that the Full Court are not hearing an appeal in relation to the PP Lawyers documents until October 2016. 

5. However it needs to be taken into account whether it is necessary for the wife to receive the PP lawyers documents to properly prepare for the final hearing in this matter.  I make no ruling on that, but raise that as a question. 

6. The Court obviously needs to have sufficient notice to make arrangements for an interstate judge to come to Adelaide to hear the matter and, in particular to know how many witnesses and how long the trial is likely to take.  The husband’s counsel have indicated five days would be sufficient.  The wife’s counsel is not able to even indicate what witnesses might be called because of issues apparently continuing as a result of material in Ms E’s report that might raise queries about disclosure of documents. 

7. I, therefore, do not consider that I am in the position at the moment to even indicate or allocate a date for trial.  On that basis, it is not appropriate to make directions for the filing of appropriate documents for the final trial. 

8. I am then left with the matters which are in dispute which include the order in relation that the wife seeks that each party provide complete copies of their respective passports for the last five years to the other parties. 

9. This is opposed by the husband.  It is challenged as to the relevance of the passports when the husband asserts he has made all disclosure of his financial material relevant to any travel.  However, I understand from the submissions on behalf of the wife that the passports are being used in relation to checking whether there has been full disclosure and comparing that with the financial information which has been provided.  The question may also arise as to whether the substantial travel of the husband is a factor which has reduced the assets or indicates a lifestyle comparison that may be a relevant factor in the Court’s final determination. 

10. As to the costs and difficulty of providing the same, I am satisfied that that would be minimal.  The law already provides for the parties not being able to use any document provided to them other than for the purposes of these proceedings and not to disclose or distribute that information.  I consider that, in these circumstances, the order sought in relation to the passports is an appropriate order and propose to make the same, but will make the order to provide that it be before 17 June 2016 rather than 7 June 2016, which is quite close to today. 

11. The other order that is sought by the wife is that on or before 30 June 2016 the husband and wife shall file and serve an updated statement of financial circumstances. 

12. This is also opposed on behalf of the husband.  On his behalf it is maintained that for the purposes of mediation, appropriate balance sheets and financial information summaries can be provided to the wife and this will provide her with the information that she needs for the mediation. 

13. I have raised with counsel what I consider to be a minimal difference and minimal cost of the parties providing each other with updated statements of financial circumstances, taking into account the work that is to be done prior to the mediation in any event.

14. The rules provide for the parties to file updated statement of financial circumstances when there has been a change in their circumstances.  I accept the submission on behalf of the wife’s counsel that there has been a considerable period of time since the parties filed a statement of financial circumstances.  I consider that it would be in the interests of the parties for the Court to receive a document on oath and have that before the Court, rather than rely upon the cooperation of parties in providing relevant information for the purposes of the mediation. 

15. The mediation is now to commence on 11 August 2016.  Therefore, the time for the provision of the statement of financial circumstances is not pressing, but 30 June 2016 is approximately a month away in any event.  I therefore consider that the order sought is appropriate.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 May 2016.

Associate: 

Date:  23 May 2016