BARAKAT & BARAKAT - [2015] FamCA 979

FAMILY COURT OF AUSTRALIA

BARAKAT & BARAKAT

[2015] FamCA 979

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision declining to grant leave to the applicant wife to issue two subpoenas – Where the final hearing is part-heard and set to recommence in a week – Where it is alleged that the husband has failed to disclose an interest in a trust established by his mother, which has subsequently acquired property – Where the Court finds there to be a legitimate question as to whether there has been full and frank disclosure by the husband – Application allowed – Leave to issue subpoenas granted, subject to amended schedules.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 13.04

Hatton & Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038
Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No. 4) (2007) SASC 255
X Pty Ltd and Ors & Merhi [2015] FamCA 622

APPLICANT:

Ms Barakat

RESPONDENT:

Mr Barakat

FILE NUMBER:

SYC

3117

2012

DATE DELIVERED:

4 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

4 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Coorey of Cambridge Law

SOLICITOR FOR THE RESPONDENT:

Mr Magee of Armstrong Legal

THE COURT ORDERS THAT:

(As Amended Pursuant to the Slip Rule on 5 November 2015)

The applicant wife has leave to issue a subpoena to National Australia Bank (NAB) in the following form:
Copies of bank statements, loan application forms, valuations, authority to operate account, correspondence, file notes, for the following:
a) F Trust ABN …;
b) G Pty Ltd ACN …;
c) Ms H (aka Ms I H) in respect to the purchase of the property at J Street, Suburb K;
in respect to the period from 1 January 2014 to date.
The applicant wife has leave to issue a subpoena to L Solicitors in the following form:
File notes, correspondence (sent and received), settlement sheets for purchase and/or sale in your possession relating to:
a) the purchase of the property located at J Street, Suburb K;
b) the purchase of shares or other equities or transferral or investment of funds by:
i) Mr Barakat;
ii) G Pty Ltd ACN …;
iii) F Trust ABN ….
c)work performed on behalf of Ms H (aka Ms I A) in respect to:
i) the purchase of J Street, Suburb K;
ii) the establishment of F Trust ABN …;
iii) the appointment of G Pty Ltd ACN … as trustee of the F Trust.

The subpoenas referred to in Orders 1 and 2 must be filed and served by close of business tomorrow Thursday 5 November 2015.
The subpoenas issued pursuant to these Orders are to be made returnable for 11.30am next Wednesday 11 November 2015.
The applicant wife shall comply with the provisions of the Family Law Rules in respect to service of subpoenas including provision of appropriate conduct money.
For the purpose of these Orders, the Court abridges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCA 979
Decision Date: 4 November 2015

CaseChat Overview and Summary

In the matter of *Barakat & Barakat*, the applicant wife sought leave to issue subpoenas to National Australia Bank (NAB) and L Solicitors. The dispute concerned financial matters within family law proceedings, and the wife sought to obtain documents relating to various trusts, companies, and property transactions, including those involving the respondent husband and a Ms H.

The primary legal issue before the Court was whether the applicant wife should be granted leave to issue the proposed subpoenas. This involved considering the relevance of the documents sought to the financial proceedings and whether the subpoenas were appropriately framed to obtain necessary information for the proper conduct of the case. The Court also had to determine the appropriate timeframes for the filing and service of these subpoenas, and for the return date.

McClelland J granted the applicant wife leave to issue the subpoenas to NAB and L Solicitors, specifying the precise form and content of the documents to be produced. The Court abridged the time for service of the subpoenas to four clear days, requiring them to be filed and served by close of business on 5 November 2015, and made returnable for 11.30 am on 11 November 2015. The applicant was also ordered to comply with the Family Law Rules regarding service, including the provision of conduct money. Furthermore, the parties were directed to file and serve updated Financial Statements by close of business on 11 November 2015.

Orders

Orders of the court

(As Amended Pursuant to the Slip Rule on 5 November 2015)

The applicant wife has leave to issue a subpoena to National Australia Bank (NAB) in the following form:

Copies of bank statements, loan application forms, valuations, authority to operate account, correspondence, file notes, for the following:

a) F Trust ABN …;

b) G Pty Ltd ACN …;

c) Ms H (aka Ms I H) in respect to the purchase of the property at J Street, Suburb K;

in respect to the period from 1 January 2014 to date.

The applicant wife has leave to issue a subpoena to L Solicitors in the following form:

File notes, correspondence (sent and received), settlement sheets for purchase and/or sale in your possession relating to:

a) the purchase of the property located at J Street, Suburb K;

b) the purchase of shares or other equities or transferral or investment of funds by:

i) Mr Barakat;

ii) G Pty Ltd ACN …;

iii) F Trust ABN ….

c) work performed on behalf of Ms H (aka Ms I A) in respect to:

i) the purchase of J Street, Suburb K;

ii) the establishment of F Trust ABN …;

iii) the appointment of G Pty Ltd ACN … as trustee of the F Trust.

The subpoenas referred to in Orders 1 and 2 must be filed and served by close of business tomorrow Thursday 5 November 2015.

The subpoenas issued pursuant to these Orders are to be made returnable for 11.30am next Wednesday 11 November 2015.

The applicant wife shall comply with the provisions of the Family Law Rules in respect to service of subpoenas including provision of appropriate conduct money.

For the purpose of these Orders, the Court abridges the time specified in rule 15.28 in respect to service to a period of four (4) clear days.

The parties are to file and serve an updated Financial Statement by close of business Wednesday 11 November 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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