Bakker and Kane

[2020] FamCA 270

FAMILY COURT OF AUSTRALIA

BAKKER & KANE [2020] FamCA 270

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the matter to be determined is the existence of a de facto relationship under s 90RD of the Family Law Act 1975 (Cth) – Where the subpoenas sought production of documents well beyond the period of the de facto relationship alleged by the applicant – Orders for subpoenas struck out or amended.

Family Law Act 1975 (Cth) s 90RD
Evidence Act 1995 (NSW) s128

APPLICANT: Ms Bakker

RESPONDENT: Mr Kane

INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

FILE NUMBER: SYC 8109 of 2018

DATE DELIVERED: 6 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 20 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Linden Legal

COUNSEL FOR THE RESPONDENT: Mr Fowler

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Stidwill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Stidwill Solicitors

Orders

1. The following subpoenas issued by the applicant Ms Bakker are struck out:

   1.1.     Commonwealth Bank of Australia

   1.2.     B Real Estate

   1.3.     C Company

2. 2.1.     Paragraph 2 of the subpoena issued by the applicant Ms Bakker to the National Australia Bank Ltd is amended so as to delete the words "from 1 January 2014 to the present date" and substitute the words "November 2016 to 3 June 2018".

   2.2.     The subpoena to the National Australia Bank Ltd is otherwise struck out.

3. 3.1.     Paragraph 2 of the subpoena issued by the applicant Ms Bakker to D Corporation is amended so as to delete the words "since 1 January 2016 until the present time" and to substitute the words "from November 2016 until 3 June 2018".

   3.2.     The subpoena to D Corporation is otherwise struck out.

4. The application of the respondent Mr Kane for a certificate pursuant to section 128 of the Evidence Act 1995 (NSW) is withdrawn and dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakker & Kane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8109 of 2018

Ms Bakker

Applicant

And

Mr Kane

Respondent

And

Independent Children's Lawyer

Stidwill Solicitors

REASONS FOR JUDGMENT

The proceedings

1. Mr Kane and Ms Bakker are parties to litigation in relation to parenting orders, alteration of property interests and spouse maintenance.  There is a dispute as to whether they lived together in a de facto relationship, as is asserted by Ms Bakker and denied by Mr Kane.  For convenience, I will refer to Ms Bakker as "the applicant" and Mr Kane as "the respondent" in these reasons.

2. On 20 February 2020 the proceedings were listed for hearing in relation to the following issues:

   1.interim parenting orders in relation to the parties' child X, who was born in 2018 and is presently two years of age

   2.objections by the respondent to subpoenas issued by the applicant

   3.an application by the respondent for a certificate pursuant to section 128 of the Evidence Act1995 (NSW) in relation to evidence which he proposes to adduce in response to the application for a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties.

Consideration

Interim parenting orders

1. The Independent Children's Lawyer ("the ICL") indicated that the parties signed interim terms of settlement which provided for unsupervised time on 19 November 2019 but first the father and later the mother withdrew their consent.  The ICL indicated further that Dr E was appointed the single expert by the Federal Circuit Court in the absence of the father and difficulties had arisen in that regard.

2. The ICL sought orders for the appointment of Dr F as single expert and informed the court that a report could be available by May 2020.  It seemed to me that the parenting issues are of sufficient complexity to justify a delay of approximately three or four months, so that the court had the assistance of an expert report.  Accordingly, I indicated that I would make orders for the appointment for Dr F and adjourn the hearing of the interim parenting application.

3. The parties consented to a variation of the interim orders of 21 June 2019, which provided that the child spend supervised time with the father on three occasions per week at Suburb G Library.  The interim orders of 20 February 2020 provided that this time occur at Suburb G Library, Suburb H Library, J Park or K Beach as arranged with the supervisor.  A date for further hearing of the interim parenting issues will be allocated to coincide with the availability of the report of Dr F.

Section 128 certificate

1. On 20 February 2020 I drew the attention of the legal representatives of the respondent to the provisions of section 128(7) of the Evidence Act. Effectively, this section excludes a prosecution for perjury from the protection of a section 128 certificate.

2. I invited the legal representatives of the respondent to consider their position and advise the court within seven days whether their client would pursue this application.  The solicitor for the respondent subsequently advised that he abandoned this application.

Objections to subpoenas

1. The applicant issued subpoenas to produce documents to the following persons and organisations:

   ●National Australia Bank

   ●Commonwealth Bank of Australia

   ●D Corporation

   ●B Real Estate

   ●L Council

   ●C Company

2. The subpoena to the National Australia Bank was framed in extremely wide terms and initially sought production of documents well beyond the period of the de facto relationship alleged by the applicant.  This subpoena sought also production of trust deeds for various corporate entities controlled by the respondent.  The extraordinary breadth of this subpoena was well evident from paragraph 3, which read as follows:

   "Copies of all emails between [the respondent] and other personal bankers employed on behalf of the National Australia Bank with whom [the respondent] has communicated with by email, correspondence or the recording of notes from telephone conversations with [the respondent] born in 1964".

3. At the interim hearing, counsel for the applicant indicated that paragraph 2 of this subpoena was now limited to production of documents generated during the period November 2016 to 3 June 2018.  The applicant seeks a declaration that a de facto relationship existed during that timeframe.  The respondent consented to production of these documents.

4. I am not persuaded that documents sought pursuant to paragraphs 3 to 9 inclusive of this subpoena are relevant to the issue of the existence of a de facto relationship between November 2016 and 3 June 2018.  This information may be relevant to substantive proceedings for alteration of property interests but, at this preliminary stage, I consider that the applicant is not entitled to delve into the personal and commercial affairs of the respondent to such an extent.

5. The subpoena to the Commonwealth Bank similarly sought production of documents related to corporate entities controlled by the respondent and, in my view should meet the same fate.  Again, this information may have relevance to substantive proceedings for alteration of property interests.

6. Paragraph 2 of the subpoena to the Commonwealth Bank sought production of documents for "the period 1 March 2019 to the present date".  It is difficult to detect the relevance of documents beyond the period of the alleged de facto relationship to the determination of the threshold issue.  In my view, it is appropriate to strike out all paragraphs of the subpoena to the Commonwealth Bank.

7. The subpoena to D Corporation sought production of documents from 1 January 2016 to the present date for a specified mobile telephone number in relation to a number of electronic devices.  At the interim hearing, counsel for the applicant indicated that the scope of this subpoena is now limited to the period of the alleged de facto relationship.  I was not persuaded of the relevance of this information to the issue of the existence of a de facto relationship.

8. Counsel for the respondent informed the court that he consented to production of documents sought by paragraph 2 of the subpoena to D Corporation.  Accordingly, this paragraph will remain and otherwise I consider it appropriate to strike out the subpoena to D Corporation.

9. The subpoena to B Real Estate sought production of documents in relation to any property owned by the respondent and listed for rental with this real estate agency.  The applicant alleged that the respondent told her that he owned an investment property at Suburb M and that she arranged for repairs with a letting agent.

10. The respondent contended that the Suburb M property is owned by his father.  It seems to me to be necessary for the applicant to establish that the respondent holds an interest or has authority to deal with this property before any conclusion can be reached that these documents have relevance to the threshold issue of the existence of a de facto relationship.

11. Nothing in the evidence of the applicant suggested that the respondent owns any other property which is managed by this letting agent.  In my view, this paragraph of the subpoena to B Real Estate can rightly be described as a fishing expedition, and will be struck out.

12. C Company are a firm of accountants who attend to the taxation affairs of the respondent.  Initially, this subpoena sought production of documents for the period from 1 January 2014 until the present time.  Again, counsel for the applicant informed the court that this subpoena is now limited to production of documents for the period of the alleged de facto relationship.

13. The subpoena to C Company was framed in very broad terms and sought inter alia "copies of all records relating to the taxation records and financial matters conducted on behalf of [the respondent]".  Paragraph 2 sought copies of correspondence with the Australian Taxation Office in relation to the respondent and any associated corporate or superannuation identity.  Paragraph 3 sought copies of all documents related to any trust or superannuation fund connected with the respondent.

14. In my view, this information well exceeds the scope of arguable relevance to the issue of the existence of a de facto relationship.  Again, these documents may have relevance to the substantive issue but I will not permit the applicant to access this information at the present stage of the proceedings.

15. The subpoena to L Council was not the subject of an objection on behalf of the respondent.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 6 April 2020.

Associate: 

Date:  6 April 2020