FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN (STAY AND VARIOUS INTERIM ORDERS) | [2010] FamCA 708 |
| FAMILY LAW – JURISDICTION – stay of proceedings – whether a Judge at first instance has jurisdiction to grant a stay of orders pending an appeal from the Full Court to the High Court of Australia – held that it is within the inherent jurisdiction of the court to grant the stay FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the Full Court has dismissed the appeal – application for a stay of orders pending an application for special leave to the High Court – whether there are exceptional circumstances – consideration of the merits of the appeal – not satisfied that exceptional circumstances have been established – application dismissed FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where there are allegations that the child has reacted poorly in the past – whether time should be supervised – where the wife proposes family carers supervise the husband’s time – best interests – orders that the child spend time with the father to be in presence of his speech pathologists FAMILY LAW – CHILDREN – family consultant and expert’s reports – where the wife seeks to appoint a new family consultant and expert to prepare reports – where it was not appropriate to appoint a new family consultant where the report did not favour the wife – consideration of the appropriateness of the proposed experts FAMILY LAW – COSTS – interim orders – application by the wife seeking $3.8 Million to cover her legal costs up to and including trial – just and equitable – not satisfied that the amounts claimed as reasonable future costs are justifiable – orders that the husband pay the sum of $825,000 FAMILY LAW – INJUNCTION – whether the proposed draft orders of the husband restraining him from dealing with assets leading up to trial are appropriate – just and equitable – orders considered appropriate |
| Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 93A, 94(1), 94(2D), 117(2) & 123(1)(c) Judiciary Act 1903 ss 79(1) & 80 Family Law Rules 2004 r 1.09, 1.13 & 22.11 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Bond & Caboche v England (1997) SASC 6446 Breen & Breen (1990) 65 ALJR 195 Goode & Goode (2006) FLC 93-286 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 In Re The Duke Group Ltd: Gerah Imports Pty Ltd v The Duke Group Ltd (in Liq) [1994] HCA 3 Molier v Van Wyk (No. 2) (1981) FLC 91-001 MRR v GR (2010) 263 ALR 368 Re Trade Practices Commission v Manfal Pty Ltd and Others (1990) 99 ALR 783 Stephens and Stephens (Stay Application) (2010) FLC 93-429 Strahan & Strahan (Interim property orders) [2009] FamCAFC 166 Zschokke & Zschokke (1996) FLC 92-693 |
| APPLICANT: | Ms Strahan |
| RESPONDENT: | Mr Strahan |
| INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
| FILE NUMBER: | ADF | 228 |
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- Case
- [2010] FamCA 708
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it possessed the jurisdiction to grant a stay of orders pending an application for special leave to appeal to the High Court of Australia, following the dismissal of an appeal by the Full Court. Additionally, the court had to consider the best interests of the child, S, in relation to time spent with the father, including whether such time should be supervised and by whom. The appropriateness of appointing new family consultants and experts was also in question, as was the wife's application for a substantial sum towards her legal costs and the husband's proposed draft orders restraining him from dealing with assets.
Regarding the stay of proceedings, Dawe J held that the court had the inherent jurisdiction to grant a stay, but found that exceptional circumstances were not established to warrant a stay pending an application for special leave to the High Court. In relation to parenting, the court made interim orders for S to spend time with the father, to be supervised by his speech pathologists, and also ordered telephone contact. The court declined to appoint a new family consultant simply because a report did not favour the wife, but did order updated reports from an existing family consultant and a new expert concerning S's future needs. On costs, the court found the wife's claim for future costs to be unjustifiable and ordered the husband to pay $825,000 towards her legal costs. Finally, the court considered the husband's proposed injunctions over his assets to be appropriate and just and equitable.
Orders
Orders of the court
1.
The application filed on 29 June 2010 seeking a stay of the order of 5 November 2009 is dismissed.
2.
S spend time with the husband in the Greater Metropolitan area of Adelaide for an initial period of six [6] months every third weekend of every calendar month on Saturday and Sunday from 11.00 am until 3.00 pm each day on the following conditions:
(a) the husband provide the wife notice of not less than three [3] days if he is unavailable to spend time with the child;
(b) the husband shall collect and return the child from and to the wife’s residence for the purposes of spending time with the child;
(c) the wife and husband forthwith use their best endeavours to seek the commitment of either Mr SH or Mr M to be present at handover and during the time the husband spends with the child;
(d) subject to their availability and willingness to participate either Mr SH or Mr M be present at handovers and during the time the husband spends with the child pursuant to these orders PROVIDED THAT any costs associated with their attendance be met by the husband.
3.
The husband have telephone contact with the child once per week on Saturdays between 3.00 pm and 4.00 pm (Adelaide time) and that the child be at liberty to telephone his father at other times.
4.
If neither Mr SH or Mr M are available at the above mentioned times the husband shall have liberty to apply for further interim orders concerning his time with the child.
5.
If the final judgment concerning parenting orders for the child is not delivered before the six [6] month period expires, both parties shall have liberty to apply for further interim orders concerning the child.
6.
The Independent Children’s Lawyer confer with the solicitors for the wife and solicitors for the husband and thereafter request in writing that Dr C prepare an updated Family Assessment.
7.
Dr C provide to the Court a report relating to the care welfare and development of S born … June 1996 and that such report be released to the parties and the Independent Children’s Lawyer on or before 30 September 2010.
8.
The parties do attend and ensure that the child attends such interviews as Dr C may request.
9.
The Independent Children’s Lawyer confer with the solicitors for the wife and solicitors for the husband and thereafter request in writing that Associate Professor Y prepare a report.
10.
Associate Professor Y provide to the Court a report relating to the future needs of S in particular but not limited to his intellectual functioning and treatment for Autism and that such report be released to the parties and to the Independent Children’s Lawyer on or before 30 September 2010.
11.
The parties attend and ensure that the child attends such interviews as Associate Professor Y may request.
12.
Within twenty-one [21] days from today the husband pay to the wife’s solicitors the sum of EIGHT HUNDRED AND TWENTY FIVE THOUSAND DOLLARS [$825,000.00].
13.
Forthwith upon receipt of the monies the wife’s solicitors do pay the sum of SEVENTY FIVE THOUSAND DOLLARS [$75,000.00] to the Independent Children’s Lawyer on account of the Independent Children’s Lawyer’s costs.
14.
Upon receipt of the monies the balance shall be invested in an interest bearing account to be thereafter used only for solicitor and counsel fees for the proceedings in the Family Court of Australia PROVIDED FURTHER THAT the sum of THREE HUNDRED THOUSAND DOLLARS [$300,000.00] shall be retained for solicitor and counsel fees for the final hearing in this matter.
15.
Paragraph 2 of the order made on 27 July 2007 is discharged.
16.
Until further order the husband be restrained from selling, encumbering or otherwise dealing with the following (except in the ordinary course of business):
(a) the husband’s interests, whether legal or equitable, in any of his interests in the companies and trusts and entities valued by Ms E in her valuation reports dated 16 October 2008 and 28 November 2008;
(b) the husband’s interests in AW and EN entities;
(c) the husband’s interests in any real estate in Hong Kong, Malta, Switzerland, Australia and Austria
without first having given the wife twenty eight [28] days notice in writing of his intention to do so.
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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