Banskota & Banskota (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Banskota & Banskota (No 3) [2024] FedCFamC1F 400   

File number: SYC 3284 of 2022
Judgment of: CHRISTIE J
Date of judgment: 13 June 2024
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Subpoenas -Where the subpoena seeks that a bank produce bank records for the husband’s parents and uncle – Notice of Objection by the husband’s parents and uncle – Apparent relevance – Redaction of documents produced pursuant to a subpoena – Apparent relevance established – Notice of Objection dismissed – Subpoena to issue.      
Legislation: Federal Circuit and Family Court Rules (Family Law) 2021 (Cth) r 6.39  
Cases cited:

Banskota & Banskota(No 2) [2024] FedCFamC1F 249

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-098

Kehoe & Seden(No 2) [2022] FedCFamC1F 346

Secretary of the Department of Planning, Industry & Environment v Blacktown City Council [2021] NSWCA 145

Division: Division 1 First Instance
Number of paragraphs: 42
Date of hearing: 12 June 2024
Place: Sydney
Solicitor for the Objectors: Mr Clinch, Karras Partners Lawyers
Counsel for the Issuing Party: Mr Schonell
Solicitor for the Issuing Party: York Law Family Law Specialists
Solicitor for the Other Party: Ms Daher, Sexton Family Law

ORDERS

SYC 3284 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR E & MS D & MR C

Objectors
AND:

MS BANSKOTA

Issuing party

MS BANSKOTA

Other party

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

13 JUNE 2024

THE COURT ORDERS THAT:

1.The Notice of Objection filed 31 May 2024 is dismissed.

2.Leave is granted to the parties' legal representatives to inspect and copy documents produced in answer to the subpoena addressed to the Commonwealth Bank of Australia on condition that copies are not provided to the clients.

3.The parties have liberty to relist the matter in the event they become aware of any matter which may jeopardise the hearing dates.

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 Banskota & Banskota has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CHRISTIE J:

  1. The primary proceedings concern property adjustment as between the applicant for final relief (Mr Banskota), the husband, and the respondent for final…

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Details
Case
[2024] FedCFamC1F 400
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Banskota & Banskota (No 3) involved an objection to a subpoena issued to the Commonwealth Bank of Australia and the husband's parents and uncle. The subpoena sought bank records relevant to the adjustment of property proceedings between the parties, which have been ongoing since September 2022. The central issues were whether the husband's family held shares or received benefits from certain companies and trusts on trust for him and his relatives, and whether they could be considered a financial resource for him. The subpoena aimed to obtain bank statements and related communications for the period from July 2000 to the present, focusing on transactions involving specific family members.

The court had to decide whether the documents sought had apparent relevance to the matters in dispute and whether any objections to the subpoena should be upheld. The objectors, the husband's parents and uncle, argued that the documents were irrelevant or that their production would unduly infringe on their privacy. However, the court found that the documents had apparent relevance to the issues at hand. Despite some redactions and omissions in the previously produced documents, the court determined that the subpoenaed documents were necessary to fully understand the financial transactions and their relevance to the ongoing property adjustment proceedings.

The reasoning of the court was that if a party could establish that the documents have apparent relevance, they should be given the opportunity to demonstrate their actual relevance during the trial. The court dismissed the Notice of Objection and ordered the subpoena to issue, allowing the parties' legal representatives to inspect and copy the produced documents under strict conditions to protect the privacy of the objectors. The court also granted the parties the liberty to relist the matter if any new issues arose that might affect the hearing dates.

Orders

Orders of the court

SYC 3284 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR E & MS D & MR C

Objectors

AND:

MS BANSKOTA

Issuing party

MS BANSKOTA

Other party

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

13 JUNE 2024

THE COURT ORDERS THAT:

1. The Notice of Objection filed 31 May 2024 is dismissed.

2. Leave is granted to the parties' legal representatives to inspect and copy documents produced in answer to the subpoena addressed to the Commonwealth Bank of Australia on condition that copies are not provided to the clients.

3. The parties have liberty to relist the matter in the event they become aware of any matter which may jeopardise the hearing dates.

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.

Background

Background to the litigation

At the hearing of the subpoena objection, the solicitor who appeared on behalf of the objectors also sought leave to appear on behalf of Mr C, the husband's uncle. In circumstances where the wife was unable to establish prejudice I granted that leave.BACKGROUND The parties separated on 1 January 2021 and proceedings for adjustment of property have been on foot since 30 September 2022. The proceedings are listed for final hearing in about two months time. The parties are at issue about the following matters which touch on the subpoena issue:(a)Whether the shareholding in the company B Pty Ltd and related entities (collectively "B Group") is held by the husband's father and uncle on trust for the husband, his brother and nephew;(b)Whether the husband has received benefits from B Group beyond salary and entitlements and, if so, what is the consequence;(c)Whether B Group, or in the alternative the husband's parents, are a financial resource of the husband;(d)Whether the parties, or either of them, or the parties' children have received distributions from the J Family Trust;(e)Are credit issues raised by the husband's earlier characterisation of funds which he has received. On 16 April 2024, Campton J heard and determined an objection to subpoena which had been issued to B Pty Ltd and to Ms D and Mr E and Mr C: Banskota & Banskota (No 2) [2024] FedCFamC1F 249. His Honour dismissed the objection and ordered production in accordance with the following paragraphs of the schedule, as regards the subpoena to the husband's parents:2. Originals and/or copies of all bank statements, for any account held solely or jointly with any person or persons or in the name of a company, trust or entity associated with either or both of you, evidencing the following:-a) All monies paid by you for the benefit of:(i) [Ms Banskota] born […] 1968;(ii) [Mr Banskota] born […] 1968;(iii) [Ms G] born […] 1996;(iv) [Ms H] born […] 1998,for the period 1 July 2000 to date, including but not limited to tax liabilities of [Ms Banskota] in FY2019.(b) Tax liabilities paid on behalf of or for the benefit of:(i) [Ms Banskota] born […] 1968.(ii) [Mr Banskota] born […] 1968.(iii) [Ms G] born […] 1996.(iv) [Ms H] born […] 1998.for the period 1 July 2000 to date, including but not limited to tax liabilities of [Ms Banskota] in FY2019.(c) Tax refund due to [Ms Banskota] in FY2017 of $5,286.46 which was deposited into an account under your control as per email from [Mr K], Account dated 26 April 2018 (attached).3. Originals and/or copies of all your bank statements in respect of all accounts held by you solely or jointly or jointly with other persons or in the name of an entity associated with either or both of you together with all correspondence, writings, emails, sms and all other communications and file notes in relation to alleged gifts made by you or at your direction from an entity associated with you to [Mr Banskota] in the period from 1 July 2016 to date of compliance with this subpoena. (Emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is appropriate that a party who is able to establish that the documents have apparent relevance be given the opportunity in the context of a trial to demonstrate the actual relevance. If in due course some or all documents are not relevant then they will not be admissible.CONSIDERATION The Notice of Objection was couched in terms of a lack of apparent relevance. In oral submissions, the solicitor who appeared on behalf of the objectors conceded that the documents sought were relevant to a fact (or facts) in issue but all of the details contained in the documents either lacked relevance and/or were too significant a curtailment of the rights of the subpoenaed party to privacy. The subpoena seeks production by a third party - the Commonwealth Bank of Australia - of bank account statements for accounts belonging to the husband's parents and his uncle (and perhaps aunt). It is said that the documents sought duplicate the documents which were produced in answer to the subpoenae which were the subject of proceedings before Campton J. That is mostly accurate. But the documents produced in answer to those subpoenae were redacted. No orders were made providing for redaction. In response to the respective subpoenae the husband's parents and the husband's uncle each produced a bundle of documents. Slightly different issues arise in respect of the two bundles.Production by the husband’s parents The husband's parents produced documents which were tendered on this application and became part of Exhibit 1. Beginning at page 80 of the exhibit, page 2 of 3 of statement 60 for account #...00 was produced. It has the opening balance and all cumulative balances redacted and it bears handwriting to identify both account name and date. Statement 59 has similar redactions/omissions, as do statements 52, 51, 47, 46, 32, 31. Beginning at page 90 of Exhibit 1 are partial and redacted statements for account #...95 (a joint account in the name of the husband's parents). The wife's counsel submitted that there was a pattern to the transactions which could be identified in the pages produced - namely the account would receive an amount titled "Dividend" and then payments would be made from that account to three family members employed by B Pty Ltd. This much is plain from the documents produced. The subpoena to the husband's parents and the subpoena to the bank have a different date range, but since the second subpoena seeks a shorter window, this distinction is probably without moment.Production by the husband’s uncle The husband's uncle produced documents which were tendered on this application and became part of Exhibit 1. Beginning at page 45, a single page from statement 31 for account #...35 appears demonstrating a transfer marked "[Mr Banskota] Bonus", followed by a single page from statement 33. The partial documents on pages 47, 48, 49, 51, 52, 53, 54, 55 and 56 are illegible. All documents are redacted and it is not possible to ascertain without annotation the account name or date.