Strahan & Strahan (No. 7) - [2008] FamCA 905

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 8)

[2008] FamCA 905

FAMILY LAW – PROPERTY – INTERIM PROPERTY SETTLEMENT – application by wife seeking $5 million interim property settlement for costs and disbursements – whether wife has established compelling circumstances – consideration of history of proceedings and costs incurred by wife – not satisfied are compelling circumstances justifying provision of funds to pursue allegations of non-disclosure or deficiencies in disclosure by husband – wife needs funds to proceed to trial – assessment of required costs – whether sufficient property to meet legitimate expectations of parties – husband to pay interim property settlement to wife of $1 million

FAMILY LAW – COSTS – application for costs by husband – s 117 – where applicant partially successful – where husband has control of majority of assets and ability to access funds to meet his costs – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application of Independent Children’s Lawyer with respect to payment of costs – question of the amount of costs adjourned

Family Law Act 1975 (Cth) s 117

Harris and Harris (1993) FLC 92-378
Zschokke and Zschokke (1996) FLC 92‑693

APPLICANT:

Mr Strahan

RESPONDENT:

Ms Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

24 September 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ackman QC with
Ms McMillan and
Mr Berman

SOLICITOR FOR THE APPLICANT:

Robinson & Mason

COUNSEL FOR THE RESPONDENT:

Mr Whitington QC with

Mr Holland

SOLICITOR FOR THE RESPONDENT:

Pederick Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ann Bills & Associates

Orders

That within 30 days of the date hereof the husband pay to the wife’s solicitors on behalf of the wife the sum of ONE MILLION DOLLARS [$1,000,000.00] by way of interim property settlement.
That the Application in a Case filed by the wife on 18 July 2008 and the Response filed by the husband on 26 August 2008 be dismissed and removed from the active pending cases list.
That the oral application of the husband for costs be dismissed.
That further consideration of the Application in a Case filed by the Independent Children’s Lawyer on 13 December 2007 be adjourned to 10:00am on 24 October 2008.
That further consideration of the issue of property settlement be adjourned to 9:15am on 17 October 2008.
Liberty to the parties and their legal representatives to attend the hearing on 17 October 2008 by way of 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

MR STRAHAN

Applicant

And

MS STRAHAN

Respondent

EX TEMPORE REASONS

INTRODUCTION

The application before me is the wife's application filed on 18 July 2008. The primary orders that the wife sought are firstly, that the husband…

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. 7)

Details

AGLC: Strahan & Strahan (No. 7) [2008] FamCA 905
Case: [2008] FamCA 905
Decision Date: 24 September 2008

CaseChat Overview and Summary

In *Strahan & Strahan (No. 7)*, Strickland J of the Family Court of Australia considered applications by the wife for an interim property settlement of $5 million and by the husband for costs. The wife sought funds to pursue allegations of non-disclosure by the husband, while the husband sought costs following the dismissal of certain applications.

The primary legal issues before the court were whether compelling circumstances existed to justify the wife's substantial interim property settlement application, and whether the husband was entitled to an order for costs. The court also had to consider the wife's need for funds to proceed to trial and the overall assessment of required costs in light of the available property and the legitimate expectations of both parties.

Strickland J found that while the wife required funds to proceed to trial, the circumstances did not meet the threshold of "compelling" to justify the full $5 million sought for costs and disbursements. However, recognising the wife's need for financial resources to prosecute her case, the court ordered the husband to pay the sum of $1 million to the wife by way of interim property settlement. The husband's application for costs was dismissed, with the court noting his control over the majority of assets and ability to fund his own legal expenses. The question of costs relating to the Independent Children's Lawyer was adjourned.

Orders

Orders of the court

That within 30 days of the date hereof the husband pay to the wife’s solicitors on behalf of the wife the sum of ONE MILLION DOLLARS [$1,000,000.00] by way of interim property settlement.

That the Application in a Case filed by the wife on 18 July 2008 and the Response filed by the husband on 26 August 2008 be dismissed and removed from the active pending cases list.

That the oral application of the husband for costs be dismissed.

That further consideration of the Application in a Case filed by the Independent Children’s Lawyer on 13 December 2007 be adjourned to 10:00am on 24 October 2008.

That further consideration of the issue of property settlement be adjourned to 9:15am on 17 October 2008.

Liberty to the parties and their legal representatives to attend the hearing on 17 October 2008 by way of telephone.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.