Abad-Booton and Abad-Booton

FAMILY COURT OF AUSTRALIA

ABAD-BOOTON & ABAD-BOOTON

[2009] FamCA 678

FAMILY LAW – PRACTICE AND PROCEDURe – Subpoena – objection on the grounds of relevance – family trust where husband is an eligible beneficiary as to income and capital – Sufficient basis to say that there is apparent relevance.
FAMILY LAW – COSTS – where husband should have provided the documents under chapter 13 of the Rules

Family Law Act 1975 (Cth)

British American Tobacco Services Australia Limited v John Fairfax Publications Ltd [2006] NSWS 1328
O’Hara & O’Hara and Ors [2007] FamCA 1346

APPLICANT:

Ms Abad-Booton

RESPONDENT:

Mr Abad-Booton

FILE NUMBER:

MLC

6879

2007

DATE DELIVERED:

24 JULY 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

24 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HOWE

SOLICITOR FOR THE APPLICANT:

HUGHES WATSON MARKS KENNEDY

COUNSEL FOR THE RESPONDENT:

MR RENWICK

SOLICITOR FOR THE RESPONDENT:

KENNEDY GUY

FOR MR J BOOTON, DIRECTOR OF

THE BOOTON GROUP (VIC) PTY LTD:

MR SIRIANNI

Orders

That The Booton Group (Vic) Pty Ltd provide to the solicitors for the wife, the financial statements of the company for the period of five years until now along with the tax returns for those years.
That the said documents be provided direct to the solicitors for the wife within 28 days.
That the wife pay the objector’s costs fixed in the sum of $385 but the husband show cause why he should not indemnify the wife in respect of that payment.
That formal reasons be subsequently published.

IT IS NOTED that publication of this judgment under the pseudonym Abad-Booton & Abad-Booton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6879 of 2007

MS ABAD-BOOTON

Applicant

And

MR ABAD-BOOTON

Respondent

REASONS FOR JUDGMENT

On 19 June 2007, the wife filed an application for final orders which sought inter alia:
That the Honourable Court determine a property division as it deems fit.
No further amended application has been lodged. A financial questionnaire was filed for the first day of the trial. The wife prepared it herself and it said that what she wanted was a property at D and a car park in P. Reading the handwritten document and specifically the pages before that proposal, I could not be satisfied that she understood what she was doing.
On 17 February 2009, the husband filed an amended application for final orders in which he sought:
That each of the parties retain all assets and property in their respective ownership and possession as at the current date.
I am now dealing with a dispute over material that should have been produced under a subpoena.
Counsel for the wife sought to defend the subpoena and in the course of his submissions said that the wife was entitled to a share of the assets of the husband’s brothers and sister. That statement at this stage was based upon a view held by the wife but not supported by any objective evidence.
In a subpoena hearing where there is a dispute, the Court still has to determine matters on the evidence available. Here the evidence is at best vague. It is however, the basis for the production of some material.
On 23 June 2009, the wife through her lawyers, filed and the Court issued, a subpoena addressed to “The [Booton] Group (VIC) Pty Ltd (by its proper officer)”. The documents sought were:
·Memorandum and Articles of Association;
·The share register and Register of Directors, manager and secretaries;
·The company ledger and journal;
·The Company minute book;
·All cheque butts, bank deposits books, bank statements and all other banking records relating to al or any accounts conducted by the company with any bank or other financial institution for the past 7 years;
·The complete accounting file including but not limited to copies of all balance sheets, financial statements, trial balances and income tax returns of the company for the past 7 years;
·Copy of the Trust Deed of the Booton Family Trust.
Whilst there may be an argument that an applicant succeeds or fails on the whole of a subpoena, that issue was not argued.
An objection was filed on behalf of the company which in essence said that the husband was an employee but no more and the documents sought had no relevance to these proceedings.
Although it was not stated in the subpoena, it seemed common ground that the subpoenaed company is the trustee of a family trust.
Much argument was put by counsel for the wife about the sale of two properties which are the properties referred to in paragraph 2 above. There is other material apparently in the documents produced by Bank West under subpoena to show that the properties were in the registered names of the husband and the wife as owners but that the beneficial ownership was claimed by the husband’s two brothers and his sister. There is evidence that the bank noted that the proceeds of the sale of those two properties was paid to the brothers and sister. There is no evidence that the properties are owned by the trust or any company.
In the Bank West document however, someone within the bank has written that the husband, as the registered proprietor of one of the properties, had received distributions from the trust.
The trust document produced under the subpoena is a general discretionary family trust from which it is clear that the husband is a beneficiary and if the trustee so wished, distributions of both capital and income could be made to him.
The objector said in writing through their solicitor that the husband was but an employee.
The evidence leaves the entitlement of the husband and wife very blurred. In determining the objection, I turn to the only evidence I have and that is an affidavit of the wife filed 28 February 2008. She described the husband as a manager of a Melbourne establishment at that time who was bringing home at least $2,000 per week in cash. She said each had expensive motor cars supplied and maintained. She said that various household accounts were paid and she and the husband could eat at the establishment. She described her lifestyle as very luxurious and expensive.
In the same affidavit, the wife said the husband “commenced to work one of his families (sic) other businesses”. She said the husband told her he had had a fight with his brothers but continued to drive a vehicle owned by them. She asserted that what the husband was doing was a sham.
She then said that throughout his adult life, the husband had been “employed through the family businesses”. She said the husband’s brother had acted as the controller of the families’ monies and business interests.
Much of that evidence is based upon a lifestyle which may not necessarily be inconsistent with being an employee in a generous family. I have presumed that there are no clear indicators that the husband is or ever was a significant shareholder in companies.
There are therefore only two important pieces of evidence to assist the wife in this subpoena argument. First, the husband is a beneficiary of the trust. Second, someone told the bank that he had received distributions from the trust.
Notwithstanding strong opposition and assertion that what the bank file says is wrong, that material is sufficient to entitle the wife to access to material which may resolve the dilemma.
In O’Hara & O’Hara and Ors [2007] FamCA 1346, I said:
If the invasion [into a non-parties’ privacy] will assist in the pursuit of justice then subject to the amelioration of the costs and expenses problem, it is one which the community must accept as necessary.
The invasion of privacy of a purely unrelated party is something which must be considered carefully but equally, careful scrutiny of the situation must occur where there is an allegation that the non-party has links with or is in league with a party to the substantive proceedings. Where the evidence points to that closeness of relationship, the court should be more cautious about excluding a party to the substantive proceedings from pursuing this information
However, the fundamental principle is still that the applicant has to point to apparent relevance when there is an objection.
In British American Tobacco Services Australia Limited v. John Fairfax Publications Ltd [2006] NSWS 1328 Brereton J summed up the law thus:
The absence of apparent relevance of the documents, production of which is called for by a subpoena or notice to produce, is a sufficient ground to set it, or part of it, aside [Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; Hatton v Attorney General of the Commonwealth of Australia (2000) 158 FLR 31; 26 Fam LR 520; Portal Software Pty Ltd v Bodsworth (2005) NSWSC 1115, [20]-[22]]. In this context, the concept of "apparent relevance" was explained by Beaumont J in Arnotts in terms that the material in question had apparent relevance if it "could possibly throw light on the issues in the main case". Similarly, in Alister v R (1984) 154 CLR 404, Gibbs CJ at 414 accepted the proposition that "a subpoena had a legitimate forensic purpose if it appeared to be 'on the cards' that the documents sought would materially assist the defence in a criminal proceeding". Accordingly, documents called for by a subpoena will not lack apparent relevance sufficient to justify the issue of the subpoena if they could possibly throw light on the issues in the substantive proceedings or if it appears to be on the cards that they will do so. In some respects, what is of apparent relevance in the context of a subpoena or notice to produce is wider than in the context of discovery, including because, in the case of a subpoena or notice to produce, unlike discovery, documents arguably capable of providing a legitimate basis for cross-examination on credit have sufficient relevance [Brand v Digi-Tech (Australia) Ltd (2001) NSWSC 425 (Hunter J), [36]].
I say with respect that the paragraph sums up the law comprehensively.
It is clear on the basis of the two pieces of information to which I have referred that the material objected to or at least some of it could throw some light on the issue asserted by the wife albeit that her assertion is vague and perhaps not with any strong legal foundation. The subpoena has been issued for a legitimate forensic purpose and is not mischievous or an abuse of process.
Mr Sirianni for the objectors said that I should accept a letter from the corporate accountant that said that there had been no distributions but that was not in evidentiary form which could be challenged. Based upon the assertion that there is no such material, it seems logical that the wife have an opportunity to see whether the documents throw light on her argument.
In addition, because the controller of the trust is a related family member and the husband worked within that environment and because the parties previously and may still in the future benefit from the trust, it is appropriate not to be too cautious about the relevance issue and the invasion of privacy.
Pursuit of this information does not however come without its costs for the wife. Mr Sirianni sought costs and I have allowed two hours. However, it is the husband as a trust beneficiary who could have and should have provided this information. Whilst he was not present, having been specifically excused, he is a beneficiary of the trust and therefore entitled to its due administration. He should therefore be in a position to disclose the relevant documents. Rule 13.04 requires a party to disclose documents relating to a trust in which that party is an “eligible” beneficiary as to capital or income. The husband has not done that here.
Because of the inter-family connection, I propose to make an order for the objectors’ costs in the sum of $385.00 and require the husband to show cause why he should not indemnify the wife in relation to the payment of that sum.
The case otherwise should go back to the docketed registrar to ascertain when it is ready for trial because at the present moment it would seem a long way from that.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 31 July 2009

[2009] FamCA 678

24 July 2009