Banskota & Banskota (No 3)
[2024] FedCFamC1F 400
•13 June 2024
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:
The primary proceedings concern property adjustment as between the applicant for final relief (Mr Banskota), the husband, and the respondent for final relief (Ms Banskota), the wife.
On 21 May 2024 the Court issued a subpoena to the proper officer, Commonwealth Bank of Australia, at the request of the respondent wife.
The subpoena seeks production of bank records as follows:
2. Originals and/or copies of all statements of account in relation to accounting number BSB […], Account number […95] in the name of:-
•[Ms D]
•[Mr E]
for the period from 1 July 2015 to date
3. Originals and/or copies of all statements of account in relation to account number BSB […], Account number […35] for the period 1 July 2015 to date.
On 31 May 2024, Mr E and Ms D ("the husband's parents") filed a Notice of Objection to the subpoena and in support of that objection stated the documents called for in the schedule to the subpoena "are not apparently relevant to the extent that they record personal transactions and bank balances with no nexus to any justiciable dispute in these proceedings."
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)
And as regards the subpoena to the husband's uncle (and Ms F):
3. 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 all monies paid by you into a bank account or accounts of:
(a) [Ms Banskota]; and/or
(b) [Mr Banskota],
for the period 1 July 2000 to date of compliance with this subpoena.
(Emphasis added)
The husband did not actively participate in the subpoena hearing.
THE LAW
As articulated in the Notice of Objection, the objectors assert that the documents which the subpoena seeks are not apparently relevant. A lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena: Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-098 at 87,606. It is for the party who sought that the subpoena issue to demonstrate that the documents sought have apparent relevance to an issue in the proceedings: Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905.
The principles relevant to a finding of apparent relevance are set out in Secretary of the Department of Planning, Industry & Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council") at [68]-[73] by Bell P (as his Honour was then known). Therein his Honour said:
68.…The word “apparent” admits the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
In Blacktown City Council, Brereton JA said:
89.I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required that it is “likely” (or “on the cards”) that the documents sought will materially assist its case, as distinct from that it is “likely” (or “on the cards”) that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross‐examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they “appear relevant in the sense that they relate to the subject matter of the proceedings”; or that they could possibly throw light on the issues in the case. Moreover, documents will add “in some way” to the relevant evidence in the case if they are capable of assisting in cross‐examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
(Footnotes omitted)
The concept of apparent relevance has largely indeterminate boundaries with a wide embrace: Kehoe & Seden(No 2) [2022] FedCFamC1F 346. In other words, the test for establishing apparent relevance is relatively low.
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.
On these statements the redaction is more extensive such that it is not possible to see the source of the funds used to make the payment to the husband on the single legible page.
All objectors argued that redaction was in keeping with the terms of the subpoena itself. As to Ms D and Mr E, the subpoena sought production of:
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.
(Emphasis added)
And as to Mr C (and Ms F) the subpoena sought production of:
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 of entity associated with either or both of you, evidencing all monies paid by you into a bank account of accounts of:
(a) [Ms Banskota]; and/or
(b) [Mr Banskota],
for the period 1 July 2000 to date of compliance with this subpoena.
(Emphasis added)
The drafting is subtly different. The subpoena to the husband's parents covers monies paid for the benefit of the husband, wife or children (as well as payments to them), whereas the subpoena to the uncle focuses only on payments to an account in the names of the husband and wife individually or jointly.
The affidavit material of the wife assists in identifying apparent relevance. The wife contends that by reason of representations (public and private) the assets to which the husband's father and uncle hold legal title may be beneficially owned in part by the husband. In the alternative she submits that they constitute a significant financial resource. Finally, she submits various payments from the personal bank accounts of the husband's parents and uncle may be more appropriately classified as renumeration.
Part of the argument in support relates to the manner in which the payments are made to the bank accounts of the husband's family and then to the husband and in part to the manner in which those statements are annotated (for example "bonus"). The payments also appear to have been made on a schedule in the middle of the year and at year's end. The primary documents demonstrating the source of funds and the contemporaneous characterisation of those funds and identities of persons who ultimately received them are relevant to the ultimate adjudication.
The statements which were produced by the husband's uncle do not make plain the source of funds from which the payments to the husband were made.
The wife also submits that the husband has characterised the payments received by him in his financial questionnaire as follows:
•Throughout the relationship, the Husband's parents gifted significant sums of money totalling $807,175. Namely, the Husband's parents:
•Transferred the sum of $205,000 to the parties between 2016 and 2020;
•Paid the sum of $550,274.37 towards expenses for the parties, including funding private school fees for both of the parties' children in full; and
•Paid the sum of $51,900.84 towards expenses for renovations to the former matrimonial home in 2009.
•In addition to the above, the Husband's parents and uncle deposited the sum of $357,472 to the parties' joint account over several transactions and payments have continued since separation.
(As per the original)
Counsel for the wife said that the issue of relevance of the documents had already been established, creating an estoppel. In support of that submission he referred to the reasons of judgement of Campton J at [25] where his Honour said:
The wife has established the apparent relevance as to the general categories of documents as sought in the schedules, and hence the objections taken as to an absence of apparent relevance are not made out.
In the alternative, he argued that the subpoena should be upheld on its merits.
A subpoenaed party is obliged by r 6.39 of the Federal Circuit and Family Court Rules (Family Law) 2021 (Cth) to "produce the documents or things described in the subpoena at the registry stated in the subpoena" and:
(2) Unless the subpoena specifically requires the production of the original documents or things, the person, or the person’s agent, may produce a copy of the document or things.
(3) The copy of the document or things may be:
(a) a photocopy; or
(b) in PDF format; or
(c) in any other electronic form that the issuing party has indicated is acceptable.
Rule 6.39 does not give the subpoenaed party imprimatur to redact the document or to produce only part of the document. The document may contain both relevant and irrelevant information and retain its character as a document that answers the command to produce. A bank statement of four pages in length is a document. Production of page 2 without page one may (and in this case, did) omit the date or the name of the account.
It is not open for a subpoenaed party to interpret which parts of the document are required. The objectors have not redacted information because they claim a "right" of redaction, arising out of statute or privilege. Nor have the objectors sought leave to redact the parts of the statement they say are not apparently relevant and are private.
I am satisfied that, given the redactions and in particular the heavily redacted and illegible character of the documents produced by the husband's uncle, it is appropriate that the third party produce documents directly to the court and those documents be made available for inspection.
It follows that I accept that the subpoena objection should be dismissed and the documents sought should be produced.
Privacy
Counsel who appeared on behalf of the objectors submitted that the information redacted was personal to the husband's parents and may include payments for groceries, medical appointments, credit card bills and the like.
I accept that in certain circumstances it may be appropriate to make an application for first access or an application to redact sensitive information.
I am cognisant that the objectors do not wish to have their private spending the subject of unnecessary scrutiny and note in that regard that counsel for the wife conceded that it would not be appropriate for his client (as opposed to his instructing solicitors) to have copies of the documents produced. I will make an order to this effect.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 June 2024
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