Archer and Archer

[2009] FamCA 1027

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER [2009] FamCA 1027

FAMILY LAW – Subpoena – Application for enforcement

Family Law Act 1975 (Cth)

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 4481 of 2008

DATE DELIVERED: 20 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Koniuszko

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyer

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Hardys

Orders

1. That the issue of the return of the subpoena addressed to Dr J be further adjourned before me at 9.00am on 27 October 2009.

2. That Dr J attend in person at 9.00am on 27 October 2009 to explain his failure to comply with the subpoena filed on 12 August 2009.

3. That in the event that Dr J fails to attend, the wife be at liberty to seek a warrant for his apprehension forthwith.

4. That the correspondence between Dr J and the solicitor for the wife be marked as exhibits “A” and “B” and remain on the court file.

5. Reserve the question of the wife’s costs of this application.

6. That forthwith:

   (a)the solicitor for the wife serve upon Dr J by email a letter confirming the making of these orders; and

   (b)a letter setting out what (if any) costs are to be sought against Dr J on the return date.

7. That as soon as practicable, the solicitor for the wife serve upon Dr J by ordinary post, a sealed copy of this order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:       MLC 4481 of 2008

MS ARCHER

Applicant

And

MR ARCHER

Respondent

REASONS FOR JUDGMENT

1. This is an application for enforcement of a subpoena.  The subpoena was filed on 12 August 2009, addressed to Dr J returnable on 25 August 2009 at 9.30.  I am told by the solicitor for the wife, whose firm issued the subpoena, that there are documents asserting a relationship between the recipient of the subpoena and the husband, which the husband has not disclosed.  On that basis, it was reasonable in the circumstances, to issue the subpoena.  The subpoena was filed on 12 August, returnable on 25 August.  It was served on 13 August at 2.40 pm at V Street, C, which I understand is Dr J’s professional address.

2. The deponent of the affidavit refers to the fact that he had spoken to Dr J on a mobile telephone and had been given instructions by Dr J to leave the envelope with his receptionist, albeit that would normally probably suffice, having regard to the fact that a warrant is being sought for Dr J’s arrest, I will not be issuing the warrant, at this stage. Dr J emailed to the solicitors on 10 September indicating an acknowledgement of receipt of the subpoena.  It says on the following day he left for India where he was away for three weeks.  He asked for some time because he thought he would not be able to meet the deadline.

3. The return date of the subpoena was 25 August and it was then adjourned for a period in to September and then a subsequent return date to 22 September.  Dr J, by 22 September, was clearly back in the country, has made no offer to resolve the problem by the provision of documents and has received a letter, that I am satisfied about that was sent by email on 23 September, advising him that the matter would be in the judicial duty list today at 10 am.  There has been no response from Dr J and no-one has appeared on his behalf today.

4. I propose to mark as exhibits A and B the emails of Dr J to the solicitors for the wife and the solicitors' letter dated 23 September to Dr J.  What I propose to, on the basis that I am satisfied that Dr J is certainly aware of the existence of the requirement to comply with the subpoena, so give him a final opportunity to do so, but it will not be at his convenience.  A subpoena is exactly the same as a court order.  It is an order to do certain things.  It has the same implications as any other court order, and if parties fail, or refuse to comply with it, they face the prospect of being dealt with for contempt of the court. 

5. The only reason I am not prepared to issue the warrant at this stage is because I am a little unclear as to exactly what Dr J’s position is, but he is now going to have an opportunity to explain that situation because I am going to make the case returnable before me at 9 o'clock one morning which will inconvenience practice a little bit, but he can then explain why he has imply ignored what is clearly a court order.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  2 November 2009