Arora & Dash (No 3)
[2024] FedCFamC2F 680
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 3) [2024] FedCFamC2F 680
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – Subpoena objections – Where Husband seeks subpoena material regarding notes from Wife’s counselling and entire phone records spanning several years – Wife objects on basis of relevance, invasion of privacy, and fishing exercise – Apparent relevance test applies – Orders for redaction of subpoena material Legislation: Family Law Act 1975 (Cth) Cases cited: Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Papadopoulos & Papdopoulos (No 2) [2007] FamCA 1683
Sadek and Ors & Hall and Anor [2015] FamCAFC 23
Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 20 May 2024 Place: Melbourne Counsel for the Applicant: Mr Devries Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Cinque Oakley Bryant Lawyers ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The subpoena to B Company issued by the Applicant filed on 22 March 2024 be set aside.
2.The subpoena to C Company issued by the Applicant and filed on 22 March 2024 be amended as follows:
(a)the words in paragraph 2 being ‘resume’ and ‘reference checks’ be deleted;
(b)paragraph 4 be amended to make reference to only:
(i)the dates of counselling undertaken;
(ii)the identity of the counselling service; and
(iii)the location of counselling undertaken by the Respondent under the C Company Employee Assistance Program.
3.The Respondent’s solicitors be given leave to examine the documents released pursuant to the C Company subpoena and redact from a photocopy any records relating to the counselling undertaken by the Respondent, save for;
(a)the dates
(b)identification of service providers; and
(c)places of such counselling sessions.
with original unredacted documents to be place in a sealed envelope until further order.
4.That within 7 days of the dare of these orders, the Respondent provide the Applicant
(a)the names and contact details of all medical health professionals and allied health practitioners which she has consulted in her own right and with respect to the child of the marriage X born in 2017 as and from mid-2022.
5.That the parties do all acts and things required to authorise such of X’s medical practitioners and allied treating health professionals to communicate with each parent as to all aspects of X’s attendance and treatment.
6.Until further order, any subpoena documents to be released to the parties are to be released to the lawyers only, not to the parties, upon the usual undertakings.
AND THE COURT NOTES THAT:
A.Counsel for the Respondent has indicated to the Court that the Respondent will, in time, make an application to vacate the trial date.
B.It is the intention of these orders that any details of any counsellors, including any note or observations, undertaken by the Respondent NOT be provided to the applicant.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Arora and Dash, Mr Arora (‘the Husband’) is 43 years old, and Ms Dash (‘the Wife’) is 38. The issue I have for determination in this case is objections to two subpoenas. Objective matters that are not in dispute include the following:
(a)The proceedings were issued on 4 November 2022, and the matter is coming before me for a final hearing on 12 June 2024.
(b)The Husband is represented pursuant to the section 102NA scheme.
(c)The parties commenced cohabitation in late 2015, having married in 2015, and separated around about October 2022.
(d)The Chief Judge made orders on 29 February 2024 and that included the order:
1.Within 14 days of the date of these orders, the parties make full and frank disclosure in accordance with their obligations under Division 6.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
(e)The Husband has deposed as follows:[1]
[1] Affidavit of the Husband filed 3 May 2024.
7.On 2 February 2024 I sent a letter to the Respondent’s solicitor seeking disclosure documents relevant to the matter. No response has been received and no documents have been provided.
Now produced and shown to me at the time of swearing this affidavit and marked Exhibit “[A]-1” is a copy of the letter sent to the Respondent’s Solicitor on 2 February 2024.
8.On 22 February 2024 I sent an email to the Respondent’s solicitor requesting information and documents in relation to the default notice and discussions with [C Company].[2] I did not receive a response.
9.On 28 February 2024 I sent a further request following up my email and emphasized the urgency of the matter. I did not receive a response.
Now produced and shown to me at the time of swearing this affidavit and marked Exhibit “[A]-2” is a copy of the emails I sent to the Respondent’s solicitor.
10.I say that the Respondent has not provided updated any disclosure documents whatsoever after the orders made by Chief Justice Alstergren in Compliance and Readiness hearing on 29 February 2024.
(f)Counsel appearing for the objector to the subpoenas, the Wife, asserts that documents were provided up to date at a time in February, however, it appears common ground that no further documents or information have been provided after the Orders of the Chief Judge.
(g)The Husband alleges that there are relevant documents and information that he has not been provided with. I am not going to make a finding one way or the other at this point in time.
(h)The Wife alleges that the Husband is using the subpoena process to oppress her and to invade her privacy by seeking details of every phone call provided.
[2] C Company is the mortgagee of the former matrimonial home and the parties are in arrears of mortgage payments.
The schedule of C Company subpoena is as follows:
Documents and things you must produce from your possession, custody or control
1. a copy of this subpoena
2.Copy of employment records including - resume, reference checks and offer letters and current employment contract for [C Company] employee [Ms Dash], DOB […] 1986.
3.Copy of Leave records including details of carer and sick leaves and annual leaves taken during previous 2 years for [Ms Dash], DOB […] 1986.
4.Complete details of Employee Assistance Program (EAP) Counselling undertaken by [Ms Dash], DOB […] 1986 including details of counselling provider and notes and reports from the counselling sessions.
5.Details of Open and Closed accounts (Personal, Business and [C Company] Trade/Trading) details & copies of all bank statements for the last 3 years in the name of [Ms Dash], DOB […] 1986.
6.Details of work hours, shift patterns for previous 18 months for [C Company] Employee [Ms Dash], DOB […] 1986.
7.Copies of all emails received and sent regarding the home loan account BSB: [ending […] Acc: [ending …91] in the name of [Ms Dash], DOB […] 1986.
The schedule of the B Company subpoena is as follows:
Documents and things you must produce from your possession, custody or control
1. a copy of this subpoena
2.Copies of all call records, including incoming and outgoing calls along with call duration, for the mobile phone number [ending […]], for the period from [late] 2022 to [early] 2024.
3.Any text messages, multimedia messages, or instant messages sent or received by the mobile phone number [ending […]], for the period from [late] 2022 to [early] 2024.
4.Any internet browsing history or data usage records associated with the mobile phone number [ending […]], for the period from [late] 2022 to [early] 2024.
5.Details of any other mobile number or NBN connection or any other [B Company] service in the name of [Ms Dash], date of birth […] 1986.
Paragraphs 3 and 4 of the above schedule of the B Company subpoena were abandoned, or not pressed in final address.
Apparent relevance test
I refer to Cronin J’s discussion in the matter of Papadopoulos & Papdopoulos (No 2) [2007] FamCA 1683:
47.In Ansett Industries Ltd v Commonwealth [3] Marks J said that the purpose (of the [disclosure] Rule) is that of ordinary discovery, namely, to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance the fair determination of the issues. That has different words to the explanatory memorandum that came with the rules of this Court but the philosophical meaning must be seen as much the same.
48.Other jurisdictions have taken a similar view that the production of documents by a non-party before trial advances the interests of justice by promoting settlement[4].
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors[5] where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.[6]
52.In Hatton[7] the Full Court supported the “apparent relevance” test. This is the same test referred to above by Byrne J. That latter case was a commercial one. It is hard to see how it could be argued that cases in the Family Court of Australia should be conducted on a more strenuous test basis than those as between strangers in a commercial cause. That is particularly so having regard to the philosophy that this Court has traditionally espoused in relation to disclosure.[8]
[3] Supreme Court (Vic), Marks J No 268/87 3 April 1987 (unreported).
[4]O’Sullivan v Herdmans Ltd [1987] 3 All ER 129.
[5] [2002] VSC 270 4 July 2002 (unreported).
[6] A & A and Ors [2005] FamCA 561; also Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC 93-038
[7] Ibid.
[8] See Briese (1985) 10 Fam LR 642
I refer also to Sadek and Ors & Hall and Anor [2015] FamCAFC 23, where the Full Court held:
[25]A stranger’s documents will be made available to the parties in the proceedings where that is requisite for the purpose of justice. Although, as Moffit P said,[9] the documents will be made available so far as is necessary for the proper conduct of the litigation, that necessity will generally be met by the documents having apparent relevance to the issues in the proceedings. As was pointed out by his Honour, concepts of disclosure, and particularly its extent, vary. In this court there is a heavy obligation on parties in property cases to make complete disclosure. The requirements of justice, in those cases, may well require a stranger to disclose those documents more fully than in other courts where there are lesser requirements for disclosure.
[9] In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
In Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407, Dawe J observed:
14.In the recent case of Martin & Martin and Anor [2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28:
28.In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R [1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist. “Fishing” can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one. Here, NFL says that it knows what it is looking for even if it cannot specifically point to the exact sequence of events. It submits that the documents pursued will provide the answers to fill in the missing details as distinct from providing it with a case. As I understand NFL’s submission, this is an extension or further step based on that information. As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said:
39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1)The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2)If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection".
41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case".
42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
29.Counsel for the objector did not dispute that what I had there said summarised the law. In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed:
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
It is coincidental that I appeared in those cases, which is probably the only reason I can remember that they exist.
I am satisfied that there is apparent relevance in regard to the subpoenas as asked to be read down by counsel for the Husband who issued the subpoenas. I note that paragraph 4 of the subpoena to the C Company is not pressed, save for the dates and places of any counselling. That will require careful redaction of the subpoena notes, and I am satisfied otherwise with point number 2 pressed, that is, resume and reference checks. I am not satisfied those matters are sufficiently relevant or on the cards of providing information relevant to the dispute, but letters of offers and current employment contract would be relevant, as would leave records of the Wife's employment.
The details of number 5, I am satisfied would be relevant. I am satisfied that the details of number 6 and number 7 would be relevant. In particular, number 7 seeks copies of emails received and sent to and from the Wife to the bank who threatens foreclosure.[10] I am satisfied those matters are relevant.
[10] On the jointly owned former matrimonial home which the Husband seeks the sale of and the Wife opposes a sale and seeks the opportunity to retain that property.
Turning to the B Company subpoena, and taking the point of counsel for the Wife that we are here only on the return of the objection to subpoena, and noting that paragraphs 3, 4 and 5 of that subpoena are not pressed by the Husband, I am not satisfied that the records of all calls in and out from the Wife’s mobile phone number are on the cards as being relevant.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 June 2024
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