Allwright & Allwright (No 4)
[2024] FedCFamC1F 587
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allwright & Allwright (No 4) [2024] FedCFamC1F 587
File number: CAC 89 of 2022 Judgment of: CAMPTON J Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – APPLICATION FOR REVIEW – OBJECTION TO SUBPOENA – Where the parties have disproportionately consumed large amounts of the court’s resources – Where the mother filed an Application for Review to review orders upholding Notices of Objection to subpoenas issued by her to various institutions –Consideration of apparent relevance – Balance not to summarily determine a legitimate line of forensic enquiry – Amendments to subpoenas ordered. Legislation: Family Law Act 1975 (Cth) Pts VIII and VIIIA, Div 13A, ss 102NA and 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, Pt 6.5, rr 14.07, 14.07 and 15.06
Cases cited: Alister v R (1984) 154 CLR 404; [1984] HCA 85
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Martin & Martin and Anor (No. 2) [2014] FamCA 232
White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 2 September 2024 Place: Sydney The Applicant: Litigant in person Counsel for the First Respondent: Ms Cullen Solicitor for the First Respondent: TWC Lawyers The Second and Third Respondents: Litigants in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
CAC 89 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLWRIGHT
Applicant
AND: MR ALLWRIGHT
First Respondent
MS TYRRELL
Second Respondent
MR TYRRELL
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The mother be granted leave to extend the time to file her Application for Review of orders made by a Judicial Registrar on 3 July 2024 to 31 July 2024.
2.As to the subpoena directed to Westpac Banking Corporation, National Australia Bank, Commonwealth Bank of Australia, and P Bank filed 17 May 2024:
(a)Paragraph 2(a) of the schedule to each subpoena be amended so that the period that documents are to be produced recording Mr Tyrrell and Ms Tyrrell and their various other names be from 1 January 2021 to date; and
(b)Paragraph 2(b) of the schedule to each subpoena be deleted.
3.As to the subpoena directed to Q Pty Ltd and R Pty Ltd filed 19 May 2024:
(a)Paragraph 2(a) of the schedule to each subpoena be amended so that the period that documents are to be produced be from 1 January 2021 to date; and
(b)Paragraph 2(b) of the schedule to each subpoena be deleted.
4.As to the subpoena directed to S Pty Ltd and T Company filed 17 and 19 May 2024:
(a)Paragraph 2(a) of the schedule to each subpoena be amended so that Mr Tyrrell and Ms Tyrrell and their various other names be deleted; and
(b)Paragraph 2(b) of the schedule be deleted.
5.As to the subpoena directed to a government department filed 19 May 2024:
(a)Paragraph 2(a) of the schedule to the subpoena be amended so that the period that documents are to be produced be from 1 January 2021 to date; and
(b)Paragraph 2(b) of the schedule to the subpoena be deleted.
6.The paternal grandparents Ms Tyrrell and Mr Tyrrell be removed as parties to the proceedings.
7.The matter is listed for case management before Justice Curran on 9 September 2024 by Microsoft Teams at 9:30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses inolved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allwright & Allwright has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application for Review filed 31 July 2024 by Ms Allwright (“the mother”) of Orders 2, 3, and 4 made by a judicial registrar on 3 July 2024. The orders subject to review upheld the objections of Mr Allwright (“the father”), and Ms Tyrrell and Mr Tyrrell (“the paternal grandparents”) setting aside nine subpoenas filed 17 and 19 May 2024 issued at the request of the mother for third parties to the proceeding to produce documents.
The subpoenas subject to objection directed the production of documents by banks, insurance providers, companies, an agency and a government department.
Further orders subject to challenge on review directed any documents that had been produced pursuant to the successfully objected subpoenas to be returned or destroyed and for the mother to provide notice of the orders to the named persons of each subpoena that were yet to be complied with as to production.
The father and paternal grandparents oppose the review, maintaining their objections to the subpoenas. The Independent Children’s Lawyer was excused at the commencement of the review hearing.
CONTEXT
It is important for the purposes of these reasons to give context to the dispute between the various parties and to record the conduct of the litigation to date.
The mother commenced the proceedings by filing an application on 20 January 2022 seeking orders as to the adjustment of property between she and the father and as to parenting of the three children of she and the father, being X born in 2013, Y born in 2015, and Z born in 2017. The paternal grandparents were named as parties because X was in their care at that time.
The latest version of the financial relief sought by mother is identified in her Amended Initiating Application filed two and a half years ago on 2 March 2022. She seeks an order that cannot be enforced if made, being that the “non-superannuation property of the parties” be adjusted 70 per cent in her favour and 30 per cent in the husband’s favour. As presently cast, that relief is incompetent and constitutes an abuse of process. Pursuant to directions made in management of the matter, the mother filed a Minute of Order as to her parenting relief on 26 April 2024. That Minute seeks for she to have the sole care of the children and that they spend no time with the father.
The father’s financial relief is contained in his Amended Response filed on 20 April 2022. It too has not been amended for a similar lengthy period. He seeks an order that property be adjusted 70 per cent in his favour and 30 per cent in favour of the mother. That portion of his relief engages the same fate as that identified pertaining to the relief of the mother. He seeks the mother retain a property in Town F, NSW, that he retain a property in Town L, QLD, and that the mother transfer a real property at Region J, QLD to him. His parenting relief is as contained in a Minute of Order filed 3 May 2024 seeking that the children live with him.
The paternal grandparents filed a Response to an Initiating Application on 3 February 2022 seeking the children live with them.
On 18 July 2024 the paternal grandparents filed a Notice of Discontinuance purporting to relate to their Response filed 3 February 2022. They say they no longer wish to agitate for orders in the proceeding and do not wish to remain as parties. For reasons that are unclear, in circumstances where they no longer seek any orders as to the parenting of the children, they remain parties to the proceeding. The mother and father do not seek financial orders that affect their interests. An order will be made that they be removed as parties.
The mother was born in 1977 and is currently 46 years old. The father was born in 1982 and is currently 42 years old. The parents commenced cohabitation in 2012, married in 2015, and separated on 26 December 2021. The mother filed a divorce application in 2024. The mother has two children from a previous relationship, D, born in 2006 and E, born in 2008.
In February 2022 interlocutory orders were made for the children to live with the mother and for her to have sole parental responsibility for them. There were no orders for the father spending time with the children pending the release of a report by the NSW Department of Communities and Justice. The mother makes serious allegations as to an unacceptable risk posed by the father to the children grounded from the father having sexually and physically abused her older children.
The children currently live with the mother in NSW. The father and the paternal grandparents currently reside in Queensland.
The parties have engaged with a single parenting expert for the purposes of a preparation of a report. It is anticipated that the expert’s report would be released in the last week of August 2024. It should be available soon.
Orders have been made during proceedings pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). There is some uncertainty as to whether any current s 102NA orders are engaged. That matter will need to be canvassed carefully upon the matter being listed for mention.
Notwithstanding trial dates have been allocated over five days commencing on 20 January 2025, no trial directions have been made. Absent my enquiry today, it is likely the matter would have come on for hearing without any affidavit material being filed.
The capacity for these parties to engage in litigation appears endless.
Each the mother and the father make allegations as to the other failing to comply with their obligations of disclosure pursuant to ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and failing to comply with orders and directions to facilitate disclosure.
The father commenced contravention proceedings on 27 July 2023. A number of counts of contravention were heard on 13 October 2023. The orders made were subject to appeal by mother. That appeal was determined by appellate division of this Court on 14 May 2024. The appeal was allowed, the orders as to the alleged contravention being set aside, and the matter being remitted for hearing before a judge other than the primary judge.
Remarkably, again, the matter has been listed for final hearing with contraventions as to financial matters, injunctions, and parenting remaining outstanding. It is trite to observe that the single contravention application remitted for hearing combines relief grounded from s 112AP, Pt VII Div 13A, and Pt XIIIA of the Act.
Since the commencement of these proceedings, in addition to the appeal, 235 documents have been filed. It has consumed 66 listings. Forty sets of orders have been made.
The parties are directed to mandatory provisions as contained in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). The Court has a responsibility that the management of litigation and its workload occurs, in accordance with law, as efficiently and inexpensively as is possible. This is a requirement to effectively use the Courts judicial and administrative resources and exercise its powers to ensure the timely disposal of all proceedings, in a way that is proportionate to their complexity. This matter has consumed extensive Court resources, absent proportionality to the complexity of the dispute. The appetite of these parties to consume public resources is ravenous. It is necessary for it to be curtailed.
THE RELEVANT RULES IN RELATION TO A SUBPOENA
Rule 14.07 of the Rules sets out that the power of the court on review from an order of a judicial registrar is to be exercised by way of an original hearing.
Rule 14.05 prescribes that a party may file an Application for Review within 21 days of the date of the order. That time limitation for this matter expired on 24 July 2024. The mother’s Application for Review was therefore seven days out of time. She required leave to file the review.
The Court has a general power to grant an extension of time prescribed by the Rules within which to take a particular step (r 15.06(1)), including extending time to permit the later filing of an Application for Review of an exercise of a delegated judicial power. The power to grant an extension of time maybe enlivened whether or not the time fixed by the rule or procedural order has passed (r 15.06(2)).
The relevant principles as to an exercise of the discretion to extend time is identified in the well-known statement of McHugh J in Gallo v Dawson (1990) 93 ALR 479. The issue in this matter is whether the strict application of the Rules would constitute an injustice.
The mother submitted that the 21-day deadline should be “relaxed” to 28 days as she was “misguided” thinking that the time for review was the same time as that prescribed for an appeal.
The paternal grandparents opposed the mother’s application for leave to extend time upon the basis that they do not wish to continue to be engaged with, and want nothing more to do with, the proceeding.
The father opposed the extension of time as sought by the mother in circumstances where he properly identified that the merit of the objections would pivot the extension of time sought, his position being the mother had little prospect of success in opposing the objections.
On a consideration of these matters, I considered it appropriate it to grant the mother leave to extend the time to file the Application for Review in circumstances where the extension was only by seven days and save as to the merits, no party identified any prejudice to the extension being indulged. In my view, that achieves justice between the parties.
THE ORDERS SUBJECT TO REVIEW
The father filed four Notices of Objection to the subpoenas on 14 June 2024. The paternal grandparents filed nine joint Notices of Objection on 20 June 2024. The orders made by the judicial registrar on 3 July 2024 usefully record relevant history and dates:
THE COURT ORDERS THAT:
1.The Notice of Objection – Subpoena filed 14 June 2024 with respect to the Subpoena to The Proper Officer [U Psychologists] issued 19 May 2024 is discontinued pursuant to the Notice of Discontinuance filed on 2 July 2024.
2. The following subpoena issued by the [mother] are set aside and dismissed:
a.Proper Officer Westpac Banking Corporation (S39) issued on 17 May 2024;
b.The Proper Officer [Q Pty Ltd] (S45) issued on 19 May 2024;
c.The Proper Officer [R Pty Ltd] (S43) issued on 19 May 2024;
d. The Proper Officer [T Company] (S42) issued on 17 May 2024;
e.The Proper Officer, National Australia Bank (S41) issued on 17 May 2024;
f.The Proper Officer, [Government department] (S47) issued on 17 May 2024;
g.The Proper Officer, Commonwealth Bank Australia (S38) issued on 17 May 2024;
h. The Proper Officer, [S Pty Ltd] (S46) issued on 19 May 2024;
i.The Proper Officer, [P Bank] (S40) issued on 17 May 2024;
3.Upon the passing of twenty-eight (28) days following the date of these Orders any document produced under the subpoena is to be forthwith returned by an officer of the Canberra Registry of the Federal Circuit and Family Court of Australia to the Named Person or at their direction, destroyed.
4.No later than 4.00pm on 4 July 2024 the [mother] is to provide notice of these directions to all named person to any subpoena that are yet to comply with production.
5.The four (4) Notice of Objection – Subpoena filed 14 June 2024 by the [father] are otherwise dismissed.
6.The nine (9) Notice of Objection – Subpoena filed 20 June 2024 by [paternal grandparents] are otherwise dismissed.
7.The Oral application made by the [father] for costs of and incidental to today's subpoena hearing is dismissed.
8. There be no order as to costs.
THE COURT NOTES THAT:
A.A Subpoena to produce documents was issued on behalf of [mother] on 19 May 2024 to:
1. The Proper Officer [U Psychologists]
2. The Proper Officer [Q Pty Ltd]
3. The Proper Officer [R Pty Ltd]
4. The Proper Officer, [S Pty Ltd] with documents returnable on 3 June 2024.
B.A Subpoena to produce documents was issued on behalf of [mother] on 17 May 2024 to:
1. The Proper Officer Westpac Banking Corporation
2. The Proper Officer [T Company]
3. The Proper Officer, National Australia Bank
4. The Proper Officer, [Government department]
5. The Proper Officer, Commonwealth Bank Australia
6.The Proper Officer, [P Bank] with documents returnable on 3 June 2024.
C.Five (5) Notice of Objection – Subpoena were filed by the [father] on 14 June 2024.
D.Nine (9) Notice of Objection – Subpoena were filed by the [paternal grandparents] on 20 May 2024.
E. Documents have been produced in answer to the subpoena issued to:
1. The Proper Officer [U Psychologists]
2. The Proper Officer [R Pty Ltd]
3. The Proper Officer, [Government department]
4. The Proper Officer, Commonwealth Bank Australia
5. The Proper Officer, [P Bank]
F.No documents have been produced to the Court in compliance with the subpoena issued to:
1. The Proper Officer Westpac Banking Corporation
2. The Proper Officer [Q Pty Ltd]
3. The Proper officer [T Company]
4. The Proper Officer, National Australia Bank
5. The Proper Officer, [S Pty Ltd]
G.The Court heard oral submissions on 3 July 2024 by the [mother], the [father] and [the paternal grandparents].
H. In making the orders consideration was given to:
a. The five (5) Notice of Objection – Subpoena filed 14 June 2024;
b. The nine (9) Notice of Objection - Subpoena filed 20 May 2024;
c. The oral submissions made on behalf of the parties
I.The [father] seeks costs against the [mother] for the appearance of counsel in the amount of $3,500 + GST.
J.Subject to the discretion afforded under s 117(2) of the Family Law Act 1975, s 117(1) states that each party shall bear their own costs.
K.It is the view of the Court that it is not appropriate and just to make an order for costs pursuant to s 117(2) of the Family Law Act 1975.
The Independent Childrens Lawyer was excused following the Order 1 herein relating to the discontinuance of the Notice of Objection – Subpoena.
(As per the original)
THE SUBPOENA
A subpoena to produce documents directed to U Psychologists was initially the subject of an objection filed by the father. That objection was discontinued.
The subpoena subject to objection fall broadly into four categories:
(a)Banks or financial institutions – the National Australia Bank (“the NAB”), the Commonwealth Bank of Australia (“CBA”), Westpac, and P Bank;
(b)Insurers – S Pty Ltd and T Company;
(c)Requests for records – R Pty Ltd and Q Pty Ltd; and
(d)Requests for records – a government department.
Each of the schedules to the subpoena issued sought the production of all documents of specified categories relating to names persons: Mr Allwright and his various other names. The mother contends, and has given evidence that, each of these names are names that have been used historically by the father. The mother gives evidence that the father has engaged in transactions with the trust and business or corporate entities, V Trust (which she says now has vested), W Company.
The subpoena directed to S Pty Ltd, T Company, the NAB, P Bank, Westpac and the CBA also record the names Ms Tyrrell, Mr Tyrrell and their various other names. These are names the mother contends the paternal grandparents have used from time to time. That contention does not appear to be controversial.
The period of which documents are sought to be produced in each subpoena is from 13 July 2012 to date. The parties commenced cohabitation in 2012.
The Notices of Objection filed by the father records:
1. The Subpoena was not served within the requisite timeframe or at all, as required by rule 6.30(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2. The Subpoena is being used for the purpose of discovery, in lieu of financial disclosure already imposed by rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and Order 9 of Orders dated 15 June 2022.
3. The breadth and time frame of documents subpoenaed is too wide, oppressive, irrelevant and constitutes a fishing expedition.
The Notices of Objection to the subpoenas to Q Pty Ltd and R Pty Ltd, the husband recorded the further additional ground:
2.The Subpoena is issued in bad faith and inclusive of wording and content directed to unfounded view of the Applicant likely to damage the reputation of the 1st Respondent and employment opportunities.
The Notices of Objection issued by the paternal grandparents’ record:
1.We respectfully object to the production of the documents subpoenaed related to [Ms Tyrrell] and [Mr Tyrrell].
2.The documents, likely financial in nature, appeal to lack relevance to the current family matter. The requested time frame is unreasonable. The scope of the subpoena is overly broad.
3.Out involvement in this family court case is solely concerned with the well-being and best interest of the children.
4. As grandparents we have no role in the financial affairs of the parents.
5.We request the court to quash the subpoena or limit its scope to exclude documents irrelevant to the children’s well-being and their best interest.
The mother seeks dismissal of the Notices of Objection.
CONSIDERATION
A subpoena is an ex parte order of the court requiring the production of documents from a stranger to the proceedings. Part 6.5 of the Rules regulates the issue of a subpoena to produce documents.
Subpoena must be issued for a legitimate forensic purpose. That has been held to include “a sufficient apparent connection to justify the documents sought on production or inspection” (White & Tulloch & White (1995) FLC 92-640 at 708). It has further been determined that providing it is “on the cards”, being that the documents sought would bear upon and have some relevance to the substantive proceedings, the subpoena process ought to be completed (Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28], referring to Alister v R (1984) 154 CLR 404).
It is important to remember two things for the purposes of a subpoena.
Firstly, whilst a document may appear irrelevant in isolation, its relevance may only become clear in the context of other evidence. This is part of the mother’s case. She gives evidence in her affidavit as to the disposal of some of her real property interests over the course of relationship and as to providing those sale proceeds from “my houses” to the father. She said she provided this money for him to reduce his mortgage sand that, at least on her assessment of the documents and information he has disclosed, that money does not appear to have found its way to that source, or if it did, it has now been withdrawn from the source.
The mother identifies in her affidavit in support of dismissal of the objections, documents recording transactions between the father and/or the identified corporate trust entities, with monies moving between each.
The mother adduces into evidence paragraph 114 of the father’s affidavit 20 April 2024:
114.[In] 2022 I removed $220,000 from my NAB personal account as [Ms Allwright] had gained access to my password. I was concerned she would withdraw all the funds. I temporarily loaned the funds to my parents as they are building a new […] house. The funds have not been spent and I can transfer the funds back into a bank account in my sole name. I have no plans to dissipate the property pool.
The paternal grandmother said while submissions today that the funds provided “were not really a loan” and “we were holding his money for him to use for himself. We have money.” It is important at this stage in proceedings that there not be a summary determination of legitimate lines of enquiry at trial.
Both the mother and father make extensive allegations against the other as to disclosure failures of relevant documents and information. Both contend that the other has been delinquent in their disclosure obligations and that the provision of documents by each to the other has been piecemeal and incomplete.
Secondly, this leads to me being mindful, at this stage in the proceedings, not to summarily determine the apparent relevance of documents going to a substantive dispute between the parties. The mother’s documents record the father making payments to his lawyers from a CBA account. The mother says that account has not been the subject of disclosure. Her documents record payments made between the father’s bank accounts and those of the corporate entities. She gives evidence as to damage being occasioned to a property and to insurance claim or policy being cancellation by father. She gives evidence as to employers providing payslips to the father and as to some documents recording his pay being incomplete.
The father identifies that on one view, the mother is engaging in fishing, seeking to obtain a great number of documents over long period of time from financial institutions. Prima facie, this would appear to be an abuse of process. The father submits that the mothers’ contentions as to apparent relevance are inflated. In those circumstances he seeks subpoena be set aside.
There is some force to father’s submissions in relation to paragraph (b) in schedule of each subpoena, which reads:
b. Any photographs, written or recorded correspondence sent or received via email, post, internet inquiry, text message, telephone calls or social media between [S Pty Ltd] in relation to any accounts or claims or services identified with the persons, companies, trusts or business accounts as identified in paragraph “a” above.
The father through counsel advised today that the father has only ever used two surnames. Implicitly, it is his case that he has at no time used the other surnames identified by the mother in the schedules to subpoenas. The mothers’ contentions as to his uses of names cannot be rejected out of hand.
The mother in her submissions acknowledged that the financial documents of the paternal grandparents going back to 2012 have no apparent relevance to the proceedings. She said that documents from 2021 have relevance. I am so satisfied, at least in relation to bank statements, by way of the concessions made by the paternal grandmother as to holding monies on behalf of the father.
Having regard to all these reasons, the mother has broadly, but not completely, established apparent relevance to many of the categories of documents sought. The subpoena as issued require amendment, by deletion of parts of the paragraphs forming the schedules to them, so as to ensure a balance whereby each party has the opportunity to prosecute their case at trial and does not suffer a summary forensic disadvantage. I am not persuaded that the father has outlined an absence of apparent relevance to, nor any prejudice from, the production of bank statement from the institutions or insurance documents in the period sought by the mother.
The subpoenas will be altered as follows by way of the relevant schedules:
(a)Paragraph b in each schedule to each subpoena subject to objection will be deleted;
(b)The objections to the subpoena directed to the banks, being Westpac, the NAB, the CBA and P Bank, will otherwise be dismissed insofar as they relate the names upon which the wife contends the husband has periodically used from time to time and in relation to V Trust, W Company;
(c)The schedule to the subpoena directed to the banks insofar as they relate to the names used by the paternal grandparents will be amended to record documents to be produced for the period from 1 January 2021 to date;
(d)The schedule of the subpoena directed to Q Pty Ltd and R Pty Ltd will be amended to record documents to be produced for the period from 1 January 2021 to date;
(e)The schedule of the subpoena directed to S Pty Ltd and T Company will be amended to delete the names referrable to the paternal grandparents; and
(f)The subpoena directed to a government department will be amended to record documents to be produced for the period from 1 January 2021 to date.
In the event the wife desires to issue additional subpoena, she may make such application as she considers necessary to the primary judge at the case management hearing to be listed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 2 September 2024
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