Strahan & Strahan (No. 2)

[2007] FamCA 868

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO 2) [2007] FamCA 868

FAMILY LAW – PROPERTY – Interim orders – Application to adjourn trial date by consent – Application granted

APPLICANT: Mr Strahan

RESPONDENT: Mrs Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 27 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Strickland J

HEARING DATE: 27 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC

SOLICITOR FOR THE APPLICANT: Robinson Mason

COUNSEL FOR THE RESPONDENT: Mr Kirk SC

SOLICITOR FOR THE RESPONDENT: Watts McCray

ORDER BY CONSENT

1. That on or before 31 August 2007 the husband pay to the wife’s solicitor on behalf of the wife the sum of ONE MILLION TWO HUNDRED AND FIFTY THOUSAND DOLLARS [$1,250,000.00] by way of interim property settlement.

2. That until further order the husband be restrained from selling, encumbering or otherwise dealing with the assets the subject of valuation for the purposes of these proceedings held by him personally or held within companies/trusts (as defined in annexure “A”) without first having given the wife twenty-eight [28] days notice in writing of his intention to do so.

3. That until further order the wife be restrained and an injunction granted restraining the wife and/or her servants and agents from discussing or disclosing the contents or providing copies of the said documents the subject of disclosure and production SAVE AND EXCEPT to her legal and accounting advisers.

4. That within fourteen [14] days of the date of this order the husband execute and return to the wife’s solicitors authorities in the terms of Annexure “B” hereto addressed to ABN Amro, MAN Financial and KPMG and Merrill Lynch and provide the husband’s solicitors with copies of any documents provided pursuant to the said authorities within fourteen [14] days of receipt of same.

5. That the time for the husband to respond to the Notice of Admit dated 17 July 2007 and that any notice disputing the said facts be served upon the wife’s solicitor by 4:00pm on 24 August 2007.

6. That the parties and their legal representatives be given leave to inspect and copy documents produced pursuant to subpoenas returnable this day.

7. That the Italian passport of the husband held by the Registrar of the Family Court at Adelaide pursuant to the order of this Honourable Court made on 25 November 2005 be released to the solicitors for the husband in the presence of the wife’s solicitors who shall endorse the passport as “expired” on each page by the appropriate authority and that thereafter they do provide a copy of the passport to the wife’s solicitors.

8. That upon compliance with paragraph 7 of these orders the husband’s solicitors deliver the husband’s expired Italian passport to the husband.

9. That the wife’s Applications filed on 4 July 2007 and dated 26 July 2007 and the husband’s Response filed 5 July 2007 be dismissed and that there be no order for costs in respect of these applications or the adjournment of the final hearing.

AND IT IS FURTHER ORDERED

1. That the trial listing of 3 September 2007 be vacated.

2. That the time for the wife to file and serve her affidavit of evidence in chief including her response to the affidavit filed by the husband or his witnesses together with the affidavits of evidence in chief of all of the witnesses she proposes to rely on for the purposes of the trial be extended to 4:00pm on 3 September 2007.

3. That the time to file and serve the valuation report(s) of Ms E be extended to 4:00pm on 3 September 2007.

4. That the Form 2 Application filed by the wife on 4 July 2007 and the Form 2 Application filed by the husband on 4 July 2007 be dismissed and removed from the active pending cases list.

5. That further consideration of this matter be adjourned to 10:00am on Monday 3 September 2007 with a time estimate of 1 day.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Strahan and Strahan.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ADF228 of 2005

MR STRAHAN

Applicant

And

MRS STRAHAN

Respondent

EX TEMPORE REASONS

1. This matter comes before me today, having been adjourned from 5 July 2007.  I will not dwell on what happened on that day, save and except that further time was required to complete discovery and to see if the matter could be prepared sufficiently to allow the trial listing, which was for a period of four weeks commencing on 3 September 2007 to remain in place.

2. There is a further Application in a Case before me today, tendered by the wife.  That application informs me that from the wife’s point of view the matter simply will not be ready for trial in September.  That said, it seems both parties agree with that and I now have consent minutes of proposed orders before me, which provide for the trial to be adjourned.

3. At this stage the discussion is that the trial would need to be adjourned until next year, that is 2008.  As to when it should commence is unclear at the moment.  For my part it depends upon how quickly everyone is able to get ready for the trial and there is a lot to be done in the immediate future in relation to documents, valuations and affidavits.  Thus although I will adjourn the trial I am not going to adjourn it to a specific date nor set aside any time just yet.

4. I confirm though that this is a matter that, given how it has developed to date, I will be having it back before me on a regular and frequent basis to ascertain the progress of each party in respect of the preparation for trial.  I do not see it as a useful exercise to simply adjourn the matter off for several months and leave the parties to their own devices.  The first obvious date to address how things are going with that exercise is 3 September 2007.

5. Mr Kirk SC has also put to me that his client's affidavit will almost certainly not be ready by that date given the work that his instructor needs to do in relation to the documents that have now been discovered and produced by the husband and as I understand it, further documents are still to come.  Equally, Mr Kirk has said that the finalisation of that affidavit needs to await the completion of the inspection process of the documents that have been discovered, and I accept that.

6. Mr Ackman QC is obviously keen to receive the wife's affidavit as soon as it is ready.  Given that his client has filed his affidavit and it is necessary obviously for the wife's affidavit to be before all of us to see what the issues are and what further steps need to be taken to ensure the matter is ready for trial. 

7. For my part I propose simply to do what Mr Kirk requests and that is to extend the time for the filing of affidavits and the report(s) of the expert to 3 September 2007 and on that date I will be looking for a detailed report from both parties as to the state of the matter at that time in terms of its readiness for trial and what else needs to be done and how quickly or otherwise affidavits can be filed thereafter.

I certify that the preceding
7 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 27^th day of August 2007.

……………………………………….
Associate