Strahan & Strahan (No. 2)

[2011] FamCA 800

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 2) [2011] FamCA 800

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment – where the wife seeks an adjournment on the basis that further financial information was required from the husband – where it was appropriate for the Court to have before it full and detailed information concerning the financial circumstances of both parties – orders that the matter be adjourned to allow parties to file further material.

Family Law Act 1975 (Cth)

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 5 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Alampi

SOLICITOR FOR THE APPLICANT: Winter & Co

COUNSEL FOR THE RESPONDENT: Mr Berman SC

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

Orders

1. The husband’s Application in a Case filed 24 June 2011 is dismissed.

2. Paragraph 2 of the wife’s Application in a Case filed 22 June 2011 is adjourned to 25 October 2011 at 10:00am before the Honourable Justice Dawe.

3. Both parties file and serve an Affidavit in relation to their financial matters and an updated Statement of Financial Circumstances by 17 October 2011.

4. The wife to advise the Court and the husband’s solicitors by 18 October 2011 whether or not she is pursuing her application for interim spousal maintenance.

5. The final application and Application in a Case of the wife filed today are adjourned for mention and directions to 25 October 2011 at 10.00am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan (No. 2) 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. This is the application by the wife for an adjournment of the day set aside for the hearing in relation to any interim maintenance application sought by the wife.  The matter has substantial history; the actual application for maintenance that is relied upon is the Application in a Case filed on 22 June 2011 in which the wife sought the following orders:

   (1)That the husband pay to the wife by way of urgent interim spousal maintenance a weekly sum of $6254;

   (2)That the husband pay to the wife by way of interim spousal maintenance a weekly sum of $6254;

   (3)That the husband pay the costs of this application.

2. That application was supported by an affidavit of the wife also filed on 22 June 2011 in which the wife set out briefly reference to the application for urgent and interim spousal maintenance and relied upon a Financial Statement sworn by her on 12 March 2010. 

3. The husband filed a response to an Application in a Case.  In that response to the Application in a Case filed on 1 July 2011 the husband sought orders that he pay the wife $6,254 per week by way of monthly payments of $27,166 and that such payments be conditional upon the payments being by way of partial property settlement, that the payments be from the net proceeds of sale of assets of the parties as set out in his Application filed on 24 June 2011 and that the wife pay the costs.

4. The Application referred to in the husband’s Response is the Application in a Case filed on 24 June 2011 which sought the release of funds from EI Limited, the sale of numerous assets, an extension of time for the payment of monies due pursuant to the order of the Full Court of the Family Court and the removal of caveats. 

5. The matter was specifically before me on 5 July 2011 when the wife was represented by counsel and the solicitor for the husband before the Court entered into consent orders which provided for the release of the EI Limited funds to allow the payment of one half of $640,000 to each of the parties.

6. Paragraph 4 of that order said:

   That the designation of the said payment as to whether it is interim spousal maintenance or interim property settlement be reserved.

7. Paragraph 5 of that order was that the husband’s Application in a Case filed on 24 June 2011 and the wife’s Application in a Case filed on 22 June 2011 in relation to interim spousal maintenance be adjourned for hearing on 5 October 2011 at 10.00 am before me.  Paragraph 6 was that the parties file responses to all affidavit material to be used in the hearing within 14 days.  The wife’s Application for urgent spousal maintenance was dismissed.  All of those orders were made by consent.  I further ordered on that occasion that the question of cross-examination of the husband and whether he should be called to give oral evidence on 5 October (today’s date) was adjourned to 9 September before me. 

8. On 9 September I heard that argument.  On 16 September made orders that the husband was not required for cross-examination on the interim application fixed for hearing at 10.00 am on 5 October 2011 and further made an order that the husband was to file and serve an updated Statement of Financial Circumstances by 4.00 pm on 29 September 2011.  An order was also made that the husband take all steps within 28 days for the EI Limited to release funds sufficient for payment to the wife’s current solicitors of the sum of $862,250 pursuant to the order of the Full Court of 10 June 2011.

9. The matter comes on before me this morning pursuant to those orders which clearly indicated that the question of the interim spouse maintenance was to be heard today orders having been previously made for all affidavit material to be filed within 14 days of 5 July 2011. 

10. The matter comes on before me this morning with neither of the parties present.  The matter has been stood down twice to enable counsel for the wife to obtain instructions in relation to the matter and further to gain instructions on the nature of the application which has been brought. 

11. I have heard argument this morning which calls into question the capacity of the Court to make a current order for interim spousal maintenance whilst the designation of the sum paid to the wife of $320,000 remains undetermined. 

12. Notwithstanding that issue, the counsel for the wife appears this morning asking for the matter to be adjourned on the basis that the wife seeks further financial information from the husband.

13. It is not clear whether the request for the adjournment by the wife is because the husband has alleged any inability to make the payment.  In his response he asks for the categorisation of the payments to be made by way of partial property settlement or interim property settlement to be brought into account at a later date. 

14. Notwithstanding all of those matters and notwithstanding that the hundreds of documents on file indicate that the parties have been unable to reach any agreement about even the simplest of matters, I am concerned that neither of them appeared for the interim determination which was listed for hearing before me.

15. The matter is however further complicated by the order of 16 September 2011 which provided for the husband to file and serve an updated Statement of Financial Circumstances by 4.00 pm on 29 September 2011.  The submissions on behalf of counsel for the husband are clearly a possible interpretation of the orders being related to the interim orders the husband was then seeking in relation to the discharge of the injunctions made preventing him dealing with certain assets.  There is however no direct reference to the connection in the order itself.  There is also a possible interpretation by the wife’s legal advisors that he was required to file that updated Statement of Financial Circumstances in any event to assist the Court in determining what the wife’s counsel refers to as the still outstanding interim application for spouse maintenance.

16. The other matter which is of considerable concern to the Court is that the wife was relying upon a Statement of Financial Circumstances filed in March 2010 and the inadequacy of the affidavit material so far as it relates to the disposal of, and current whereabouts of, substantial sums paid to the wife which it is assumed would be an alteration in her financial circumstances.

17. There is also the significant payment of amounts due pursuant to the order of the Full Court which monies are apparently about to be paid by the husband to the wife;  those matters relating to orders made directed to the payment by the wife of the wife’s legal expenses.

18. The Court has to take into account the factors which have been referred to by the High Court in relation to weighing up the needs of the parties and the needs of the Court and other litigants in determining what is just and equitable in relation to procedural matters.  The disadvantage for the wife caused by her not being here and her counsel not having full instructions on the matter suggest that an adjournment is appropriate so that the Court has before it full and detailed information concerning the current financial circumstances of both of the parties. The Court will then be in a position to determine the matters appropriately.  That is not to say that I am specifically ruling against the submissions on behalf of the husband in relation to the inability of the Court to make a determination whilst the categorisation of the payment of the $320,000 remains unresolved.

19. I will hear further argument about that matter in due course.  It will be part of the determination the Court will need to make when considering when and if any further interim maintenance order should be made.

20. I therefore propose to adjourn the matter to allow both parties to file and serve affidavits setting out their current financial circumstances and the current assets and liabilities of the parties so far as it is relevant to the interim spouse maintenance application now made by the wife if the wife is intending to pursue that claim, bearing in mind the risks of costs of unsuccessful proceedings.  It would be appropriate to have the matter dealt with promptly so that the issue can be resolved. 

21. Is there any reason why the Court should not order that both parties file and serve an affidavit in relation to their financial matters and an updated statement of financial circumstances by 17 October and have the matter listed before me on Tuesday, 25 October. 

22. In relation to the question of the procedure orders that might be made to prepare this matter for final hearing, I bear in mind that the Independent Children’s Lawyer’s counsel has been sitting here in presumably some hope that some progress can be made for finalising the issues in relation to the child. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 October 2011.

Associate: 

Date:  18 October 2011