Banskota & Banskota
[2024] FedCFamC1F 242
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Banskota & Banskota [2024] FedCFamC1F 242
File number: SYC 3284 of 2022 Judgment of: CAMPTON J Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – APPLICATION FOR REVIEW – Where the wife seeks to review the failure of a Senior Judicial Registrar to determine three Notices of Objection to subpoena subsequent to reserving judgment on the issue – Whether the review is competent – Consideration of ch 14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in circumstances where no decision or order has been made by a delegated judicial officer – Application for Review dismissed – Where no prejudice is identified as to the objection being heard afresh – Orders made as to listing for hearing. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05 and 14.07
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 12 April 2024 Place: Sydney Counsel for the Applicant: Mr A Schonell Solicitor for the Applicant: Sexton Family Law Counsel for the Respondent: Ms Morgan Solicitor for the Respondent: York Law Family Law Specialists ORDERS
SYC 3284 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BANSKOTA
Applicant
AND: MR BANSKOTA
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 18 December 2023 is dismissed.
2.Order 2 as made by the Senior Judicial Registrar on 31 March 2023 is discharged.
3.In so far as necessary, the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) are dispensed with so as to cause the Notices of Objection filed on 18 January 2023, by B Pty Ltd, Ms D and Mr E, and Mr C and Ms F, to subpoena issued on 9 December 2023, to be listed for determination before me today.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonyms Banskota & Banskota has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application for Review filed 18 September 2023 by Ms Banskota (“the wife”) subsequent to her request that three subpoena issue on 9 December 2022 for the production of documents after the breakdown of her marriage to Mr Banskota (“the husband”). The recipients of each of the subpoena filed Notices of Objection on 18 January 2023.
After conducting a hearing of the Notices of Objection on 31 March 2023, the following orders and notations were made:
1.Not later than 4.00pm on 12 April 2023, the parties are to advise the Court as to whether there is an agreed position as to the Respondent’s proposed tender of bank records, that notification to be by way of joint letter from the solicitor for the Respondent and the solicitor for the Non-Party Objectors sent to […@...].
2.The decisions on the following Notices of objection – Subpoena are reserved and adjourned to Chambers at 4.00pm on 14 April 2023, with no requirement for appearances:
a.The Notice of objection – Subpoena filed on 18 January 2023 by the Objector in his capacity as director of [B Pty Ltd] in respect of the subpoena issued to the Proper Officer, [B Pty Ltd] on 9 December 2022;
b.The Notice of objection – Subpoena filed on 18 January 2023 by [Mr C] and [Ms F] in respect of subpoena issued to them on 9 December 2022; and
c.The Notice of objection – Subpoena filed on 18 January 2023 by [Ms D] and [Mr E] in respect of subpoena issued them on 9 December 2022.
3.Not later than 9.00am on 3 April 2023, the Respondent’s solicitor is provide a sealed copy of these Orders to the solicitor for the Non-Party Objectors.
4.If the Respondent and the Non-Party Objectors are unable to agree on the proposed tender subject of order 1 herein, the Non-Party Objectors and the Respondent are each granted liberty to apply to vacate the Chambers hearing at 4.00pm on 14 Aril 2023 and have the matter listed for a further subpoena hearing to determine the issue of that proposed tended.
THE COURT NOTES THAT:
A.The Applicant did not wish to be heard in respect to the determination of the objections set out in the Notices subject of order 2 herein, and was excused with the consent to the Respondent and the Non-Party Objectors.
(Emphasis in original)
On 13 October 2023 the husband and wife attended a compliance and readiness hearing before McClelland DCJ. Order 10 made on that day reads as follows:
10.Notation: In relation to the subpoena objections hearing before [the] Senior Judicial Registrar […] heard on 12 April 2023, the parties seek determination be made in respect of the objections hearing.
(Emphasis in original)
For reasons that are unknown the Senior Judicial Registrar has not determined the Notices of Objection. The Application for Review was filed after several communications from the wife and the non-party objectors requesting the Senior Judicial Registrar determine the three Notices of Objection.
BACKGROUND
The husband was born in 1968 and is currently 55 years of age. The wife was born in 1968 and is currently 56 years of age. The husband and wife married in 1993, separated on 1 January 2001, and were divorced in 2022. There are two children of the marriage both of whom are adults.
The proceedings were commenced by the husband filing an Initiating Application for adjustment of property between he and the wife pursuant to s 79 of the Family Law Act 1975 (Cth) on 30 September 2022. The wife filed a Response to Initiating Application on 15 November 2022 seeking different orders as to the adjustment of property. The property proceedings are listed for trial before Christie J commencing on 22 August 2024.
The husband does not wish to be heard on the Application for Review.
The wife filed written submissions as to the Court’s jurisdiction on this review, identifying specific rules and principles as to law and case management grounding the competence of an Application for Review in circumstances where the delegated judicial officer has not made a determination.
THE RULES
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that a party may apply for a review of an exercise of power by a Senior Judicial Registrar.
The rule provides that the Application for Review must attach a copy of the order or decision sought to be reviewed and must be filed within 21 days after the order or decision is made. Pivoting the review, by application of the rule, is the making of an order or a decision.
Rule 14.07 provides that the Application for Review is to be conducted by way of an original hearing.
In circumstances where there has been a failure of the Senior Judicial Registrar to exercise jurisdiction, I am of the view that the Application for Review is not competent and ought to be dismissed. Putting it simply, a review by way of an original hearing cannot occur of an exercise of power by a Senior Judicial Registrar if no order or decision has been made by that delegated judicial officer.
The submissions filed by the wife identify existing authority as to a litigant’s fundamental entitlement to have a claim heard and determined according to law. She further relies on other authorities as to an exercise of power being infected by jurisdictional error. I am of the view that those authorities provide little solace in circumstances where there has been the absence of the exercise of power by the Senior Judicial Registrar by way of a failure to make an order or decision. I am not satisfied that those authorities engage with the unusual circumstance of such an absence of an exercise of delegated jurisdiction by a Senior Judicial Registrar for a period more than 12 months.
In the event the review was competent, it would be the subject of an original hearing. No submission has been made to identify any prejudice if orders were made discharging the reservation of the determination by the Senior Judicial Registrar being and the subpoena objection hearing being conducted by me afresh. That will be the approach adopted in this particular matter.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 April 2024
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