Strahan & Strahan (No. 3)

[2007] FamCA 1163

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 3) [2007] FamCA 1163

FAMILY COURT – CHILDREN – child issues finalised – husband seeking to agitate child issues and appointment of Independent Children’s Lawyer – wife opposes application

FAMILY COURT – CHILDREN – involvement of Family Consultant

FAMILY COURT - PROPERTY – PROCEDURAL – orders in relation to filing of documents in preparation for trial

Family Law Act 1975 (Cth)

APPLICANT: Mrs Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 3 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 3 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Mr Ackman QC

SOLICITOR FOR THE RESPONDENT: Robinson and Mason

Orders

1. That the time for the wife to file and serve her affidavit of evidence in chief including her response to the affidavits 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 purpose of the property settlement trial be extended to 4:00pm on 2 October 2007.

2. That the time to file and serve the valuation report/s of Ms E be extended to 4:00pm on 31 December 2007.

3. That leave be granted nunc pro tunc to the husband to file his affidavit responding to a Notice to Admit on 27 August 2007.

4. By consent that R Asset Services be appointed as the single expert to value the … Mercedes Benz 380SL.

5. That within 28 days of the date hereof the wife file and serve her Reply to the Amended Response for Final Orders filed by the husband on 27 August 2007.

6. That the trial in relation to property settlement be listed to commence before the Honourable Justice Strickland at 10:00am on 3 March 2007 with a time estimate of 3 weeks subject to what occurs in relation to the child issues.

7. That the Application in a Case filed by the wife on 17 August 2007 and the Application in a Case filed by the husband on 28 August 2007 be listed for hearing at 10:00am on 1 November 2007 with a time estimate of 2 days.

8. That within 14 days of the date hereof the wife file and serve a single affidavit of evidence in chief on which she intends to rely on for the purpose of her application for spousal maintenance.

9. That by 4:00pm on 15 October 2007 the husband file and serve responding documents to the wife’s application for spousal maintenance.

10. That by 4:00pm on 15 October 2007 the wife file and serve responding documents to the Application in a Case filed by the husband on 27 August 2007.

11. That further consideration of the issues associated with the preparation for trial of the property settlement issue be adjourned to 8:30am on 17 October 2007.

12. That liberty be granted to the parties and their legal representatives to attend the adjourned hearing on 17 October 2007 by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Strahan and Strahan is approved 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

MRS STRAHAN

Applicant

And

MR STRAHAN  

Respondent

EX TEMPORE REASONS

1. This matter is listed before me today primarily to ascertain the current position with the preparation for trial of the property settlement issues.  Separate to that, I now have before me an Application in a Case filed by the wife on 17 August 2007, in which she seeks an order for spousal maintenance.  That application is opposed.  I propose, in a moment, to make orders for the filing of documents and for the listing of that matter on a date for hearing.

2. Additionally, the husband filed an Amended Response to Final Orders on 27 August 2007.  The amendment introduces a new cause of action; namely, in relation to the child of the parties.  That issue had been finalised by consent order earlier this year, but, without going into the detail of it, there have been difficulties, as I understand it, with that order and there are contravention proceedings in the Federal Magistrates Court.

3. In any event, the husband is now seeking to agitate again the issues relating to the said child in this court.  The husband wants that amended response to be heard on an urgent basis.  In that regard he filed an Application in a Case on 28 August 2007, seeking an urgent early hearing of that matter but also seeking an order for the appointment of an Independent Children’s Lawyer and specifically the re-appointment of the previous Independent Children’s Lawyer.

4. The wife's position, I assume, in a general sense, is that she opposes the orders that the husband seeks.  However, she needs to be given the opportunity to respond to the further amended response, and I will provide for that in a moment as well.

5. In relation to the issue of an Independent Children’s Lawyer, Mr Kirk has indicated that his instructions are that that is opposed on the basis that there is no need for the appointment of an Independent Children’s Lawyer, and if consideration is to be given to appointing one that it not be the previously appointed Independent Children’s Lawyer.  Thus, that issue is obviously joined but, as I say, and to repeat, the wife needs the opportunity to file her answering documents to that application. 

6. I propose to set down for hearing the application for spousal maintenance and the application I have just referred to for two days; namely, 1 and 2 November 2007.  It is recognised by the wife's senior counsel that the application, and more particularly the affidavit, needs to be either amended or a fresh affidavit filed.  I understand that the wife now proposes to file a further affidavit, which will be the affidavit that she will rely on for the purposes of the hearing of the spouse maintenance application, and I will make an order about that as well.

7. In terms of the state of the preparation for trial of the property settlement issues, I am told that the major outstanding issue is the completion of a report by the single expert witness, Ms E.  It seems that, subject to certainly one condition, Ms E may be able to have her report available by the end of the year, but if not then, then sometime in January.  The condition is that she receives, within the next 28 days, the documents that she has requested in a letter from her to both solicitors dated 31 August 2007.  On the assumption that those documents are provided, and I understand that the husband is the one who would need to provide those documents primarily, Ms E needs a period of seven days to consider those documents and obviously see if there is anything more that she requires.  In any event, I want to keep a close eye on that issue; namely, Ms E's ability to provide a report by the end of the year. 

8. I propose to adjourn further consideration of the issue of the preparation of the matter for trial to a date in October.

9. The other important matter in terms of the preparation for trial is the wife filing her affidavits of evidence-in-chief and an extension of time of 28 days is sought for that.  I will make an appropriate order today about that.

10. There is a Notice to Admit which was filed by the wife, and the husband has responded to that by way of affidavit filed on 27 August 2007.  Unfortunately the annexed documents are not legible and I understand that there will be a legible copy filed in the near future.  The situation in relation to that is that was filed out of time and the husband needs leave to allow that to proceed.

11. There are some orders sought about which there is no dispute, as I understand it, for the valuation of a Mercedes Benz motor vehicle. 

12. The wife will be complying with a request for credit card statements, and I am going to make a notation about that.

13. I also note that in relation to the amended response filed by the husband he, as I say, has currently before the Federal Magistrates Court several applications alleging contravention.  As I understand it a decision will be made by the husband as to whether he will be proceeding with those applications alleging contravention, given that I can give a final hearing date to both the child issues and the property settlement matter in March 2008.  Indeed with counsel I have settled on an appropriate date for the listing of that trial.  Thus, it is now up to the husband whether he still pursues the applications alleging contravention.  I also understand there is a suggestion that the Federal Magistrate may indeed transfer those matters to this court, but that remains to be seen.

14. One matter I have raised with counsel for them to consider in due course, and hopefully in between now and the next adjourned date, is that if the child's issue proceeds it is subject to Division 12A of the Family Law Act and there is a process that this court applies to those matters, which entails a first day of hearing.  If we are to proceed on the basis that the final hearing of that issue will take place together with the property settlement hearing in March, then that first day needs to be set some time before then and to allow sufficient time for final documents to be filed.  There will also need to be an order for the filing of completed questionnaires before that first day.

15. The other issue that needs to be addressed is the involvement, if there is to be any, of a Family Consultant and whether that is to be a court employed Family Consultant or whether there is to be another expert involved. 

16. I appreciate and understand there are a series of other experts that were intended to be called to give evidence when this matter was listed for trial earlier this year, but I am only talking about a family assessment type expert at this stage.  Ms H was the expert, as I recall, in that category, in this matter.  The parties will need to give consideration to what they want to do about that, whether she is involved again or someone else is looked at, or indeed whether there is a need, given the issues for decision, for there to be such an involvement by an expert.

I certify that the preceding
16 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
The 3^rd day of September 2007

Associate