Strahan & Strahan (No 2) - [2012] FamCA 248

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 2)

[2012] FamCA 248

FAMILY LAW – PROPERTY SETTLEMENT – interim orders – application by the wife seeking interim property settlement of $24 million dollars – where the wife has already received substantial sums by way of interim property settlement – where there is significant dispute about the matrimonial asset pool – just and equitable – where the Court was not satisfied that the payment of further monies by way of interim property settlement was just and equitable or appropriate at this stage of the proceedings – application dismissed.

FAMILY LAW – COSTS – interim orders – application by the wife seeking $2 million dollars to meet her anticipated legal costs up to and including trial – where the wife has already received significant sums dedicated towards this purpose – where the Court was not satisfied that the wife had adequately explained the use of such funds – where the Court was not satisfied that it was just and equitable to order the payment of a further sum for costs – application dismissed.

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the wife seeking a lump sum or periodic payment of interim maintenance of $2 million dollars – where the Court was satisfied that the husband has the capacity to pay spouse maintenance to the wife – where the parties enjoyed a high standard of living during the marriage – consideration of whether the expenses claimed by the wife were reasonable – orders that the husband pay the wife spouse maintenance on a monthly basis pending trial calculated by reducing some of the wife’s claimed expenses.

FAMILY LAW – CHILD SUPPORT – application by the wife seeking departure from Administrative Assessment – where the child has special needs – where the husband has voluntarily provided significant funds for the care of the child – just and equitable – where the Court held that it was not just and equitable to make a departure order – application dismissed.

Child Support (Assessment) Act 1989 (Cth) ss 116 & 117
Family Law Act 1975 (Cth) ss 72, 74, 79 & 80

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Strahan & Strahan(Leave to appeal interim orders and appeal against costs) [2011] FamCAFC 126

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

24 April 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

14 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brown, SC

SOLICITOR FOR THE APPLICANT:

Winter & Co

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

Paragraphs 2 and 7 of the Application in a Case filed on 8 December 2011 (Document 606) be adjourned for further consideration to the final trial.
The husband pay the wife interim spouse maintenance fixed in the sum of TWENTY SIX THOUSAND AND TWENTY ONE DOLLARS [$26,021.00] per calendar month, the first payment to be on…

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 (No 2)

Details

AGLC: Strahan & Strahan (No 2) [2012] FamCA 248
Case: [2012] FamCA 248
Decision Date: 24 April 2012

CaseChat Overview and Summary

In *Strahan & Strahan (No 2)*, Dawe J of the Family Court of Australia considered applications by the wife for interim property settlement, legal costs, spousal maintenance, and child support. The wife sought $24 million for property settlement, $2 million for legal costs, and $2 million for interim spousal maintenance. She also sought a departure from the administrative assessment of child support due to the child's special needs.

The court was required to determine whether it was just and equitable to order further interim property settlement, whether the wife had adequately explained the use of previously provided funds for legal costs, and whether it was just and equitable to order further costs. The court also had to consider the wife's claim for interim spousal maintenance, assessing the husband's capacity to pay and the reasonableness of the wife's claimed expenses, as well as whether it was just and equitable to depart from the administrative assessment of child support.

Regarding the property settlement and legal costs, Dawe J was not satisfied that further payments were just and equitable or appropriate at that stage, dismissing these applications. However, the court was satisfied that the husband had the capacity to pay spousal maintenance, noting the parties' high standard of living during the marriage. After considering the reasonableness of the wife's claimed expenses, the court ordered the husband to pay interim spouse maintenance of $26,021 per calendar month pending trial. The application for departure from the child support assessment was also dismissed, as the court found it was not just and equitable to make such an order, particularly given the husband's voluntary contributions to the child's care.

Orders

Orders of the court

Paragraphs 2 and 7 of the Application in a Case filed on 8 December 2011 (Document 606) be adjourned for further consideration to the final trial.

The husband pay the wife interim spouse maintenance fixed in the sum of TWENTY SIX THOUSAND AND TWENTY ONE DOLLARS [$26,021.00] per calendar month, the first payment to be on 1 May 2012 and thereafter the first day of each calendar month pending trial.

Save as to the question of costs the Application in a Case be dismissed.

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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