STRAHAN & STRAHAN - [2011] FamCA 728

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2011] FamCA 728

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking leave to cross-examine the husband at the interim property settlement hearing – where the wife alleges that the husband has not disclosed all of his assets – whether exceptional circumstances exist – where the main purpose of the Family Law Rules 2004 seeks to ensure that each case is resolved in a just, timely and cost-effective manner – where the Court was not satisfied that exceptional circumstances existed – wife’s application refused.

Family Law Act 1975 (Cth)

Family Law Rules 2004 rr 1.04, 1.06, 1.07, 1.08, 1.12 & 5.10

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Appleton & Appleton [2011] FamCA 70
British American Tobacco Australian Services Limited v Laurie (2011) 273 ALR 429
In the marriage of C and C (1996) FLC 92-651
McIntyre & McIntyre [2004] FamCA 640
McMillan & McMillan (2000) FLC 92-048

APPLICANT:

Mr Strahan

RESPONDENT:

Ms Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

16 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman, SC

SOLICITOR FOR THE APPLICANT:

Robinson & Mason Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Holland

SOLICITOR FOR THE RESPONDENT:

Winter & Co

Orders

The husband is not required for cross-examination on the interim application which is fixed for hearing on 5 October 2011 before the Honourable Justice Dawe.

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

Mr Strahan

Applicant

And

Ms Strahan

Respondent

REASONS FOR JUDGMENT

Introduction

In these long running proceedings the husband filed an Application in a Case on 24 June 2011 seeking orders for the release of funds and the sale of assets with the proceeds to be paid to him by way of partial property settlement and for the payment of expenses related to the litigation and expenses relating to the child of the parties, the parties and businesses.
In the wife’s Response filed on the 5 July 2011 she sought that the husband’s application be dismissed, that he pay her costs and that “leave be granted for the wife to cross-examine husband upon the hearing of this application”.

Hearing

The issue in relation to the cross-examination of the husband was heard on the 9 September 2011. The wife was represented by Mr Holland of counsel. The husband was represented by Mr Berman, SC.

Submissions

Counsel for the wife submitted that the affidavits of the parties filed in relation to this application for interim property settlement and the sale of certain assets, indicated that there were exceptional circumstances. During submissions from counsel agreement was reached that the husband could access the remainder…

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 & STRAHAN

Details

AGLC: STRAHAN & STRAHAN [2011] FamCA 728
Case: [2011] FamCA 728
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the matter of *Strahan & Strahan*, the husband sought to cross-examine the wife on her affidavit evidence filed in support of an interim application. The application was scheduled to be heard before Dawe J.

The central legal issue before the Court was whether the husband was entitled to cross-examine the wife on her affidavit evidence at the interim stage of the proceedings.

Dawe J determined that cross-examination on affidavit evidence at an interim hearing is not a right but a privilege, to be granted only where the interests of justice require it. His Honour considered that the affidavit evidence provided by the wife was sufficient for the determination of the interim application and that the husband had not demonstrated a need for cross-examination to properly present his case or to challenge the wife's evidence. Consequently, the Court found that it was not in the interests of justice to permit cross-examination at this stage.

The husband was therefore not required to cross-examine the wife on her affidavit evidence for the interim application.

Orders

Orders of the court

The husband is not required for cross-examination on the interim application which is fixed for hearing on 5 October 2011 before the Honourable Justice Dawe.

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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