FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barns & Barns [2021] FedCFamC1F 214
File number(s): MLC 14779 of 2019 Judgment of: REES J Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY – Application for interim financial relief – No source of funds identified to satisfy an order for partial property settlement or interim costs – Where the husband doesn’t have capacity to pay spousal maintenance – Where no notice of the child support departure was served on the Child Support Registrar – Applications dismissed.
FAMILY LAW – INTERIM PARENTING – Child to have a meaningful relationship with both parents – Orders made increasing time the father spends with the child.
FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Senior Judicial Registrar’s decision – Where the wife sought to review orders requiring her to pay the husband and third parties’ costs following a subpoena objection hearing – Orders upheld.Legislation: Child Support (Assessment) Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: Lesley & Lesley [2015] FamCA 894
Salvage & Fosse (2020) FLC 93-966
Division: Division 1 First Instance Number of paragraphs: 122 Date of hearing: 17 November 2021 Place: Sydney Counsel for the Applicant: Ms Smallwood SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Dickson QC Solicitor for the Respondent: York Law Family Law Specialists Counsel for Objectors to Subpoena: Mr Kearney SC Solicitor for Objectors to Subpoena: Hargreaves Family Lawyers ORDERS
MLC 14779 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARNS
Applicant
AND: MS BARNS
Respondent
AND: E PTY LIMITED, MR O BARNS & MS T BARNS
Objectors to Subpoena
ORDER MADE BY:
REES J
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS:
1.
That the wife must pay the husband’s costs of and incidental to the Notices of Objection – Subpoena filed on 15 February 2021 in response to the two Subpoenas issued on
29 January 2021 to National Australia Bank Limited as agreed or assessed within
28 days of agreement or assessment.
2.
That the wife must pay the Objectors’ costs of and incidental to the Notice of Objection – Subpoena filed on 17 February 2021 in response to the Subpoena issued on
29 January 2021 to National Australia Bank Limited excluding:
(a)The costs of the subpoena hearing on 3 March 2021; and
(b)
Costs of and incidental to preparing and filing written submissions pursuant to
Order 5 of the orders made on 3 March 2021
as agreed or assessed within 28 days of agreement or assessment.
3.
That within three months of the date of these orders, the wife pay the costs of
Mr O Barns, Ms T Barns and of E Pty Limited in relation to the application to review the Senior Judicial Registrar’s orders assessed at $7,652.
4.That the wife’s application for interim property settlement…
Continue reading Barns & Barns
Sign in free to access the full text
Details
- AGLC
- Barns & Barns [2021] FedCFamC1F 214
- Case
- [2021] FedCFamC1F 214
- Decision Date
CaseChat Overview and Summary
In Barns & Barns, the wife appealed against Orders 2 and 3 made by a Senior Judicial Registrar on 5 August 2021. The orders required the wife to pay costs related to objections to a subpoena issued by her to the National Australia Bank (NAB). The objections were made by the husband and his parents, as well as a company controlled by the husband's parents, E Pty Limited (EPL). The wife sought a review of the costs orders and the third parties sought costs against her. The application required an investigation into the parties' respective financial positions. The wife had no significant assets, while the husband owned a house in Melbourne, which he claimed was subject to mortgage liabilities exceeding its value. The husband's parents had lent him money to purchase the Melbourne property and for living expenses. The wife disputed the asserted mortgage liabilities.
The court was required to decide whether the wife's conduct in issuing subpoenas that were deemed too wide justified the costs orders. The court considered that the third parties were in a vastly superior financial position to the wife. Although the wife's conduct was a relevant consideration, the fact that the objection was upheld and the wife was wholly unsuccessful was more significant. The court also considered that the third parties had made offers of settlement to provide the information the wife sought and avoid the necessity of determining the objections. The third parties had offered to provide redacted bank statements and tax returns of EPL in so far as those documents related to transactions involving the husband. The wife did not agree and pressed the subpoena in its entirety.
The court found that the wife's conduct in issuing subpoenas that were deemed too wide justified the costs orders. The wife's conduct was a relevant consideration, but the fact that the objection was upheld and the wife was wholly unsuccessful was more significant. The court also considered that the third parties had made offers of settlement to provide the information the wife sought and avoid the necessity of determining the objections. The wife's refusal to accept the offers of settlement was a relevant consideration. The court dismissed the wife's application and ordered her to pay the costs of the third parties.
The court was required to decide whether the wife's conduct in issuing subpoenas that were deemed too wide justified the costs orders. The court considered that the third parties were in a vastly superior financial position to the wife. Although the wife's conduct was a relevant consideration, the fact that the objection was upheld and the wife was wholly unsuccessful was more significant. The court also considered that the third parties had made offers of settlement to provide the information the wife sought and avoid the necessity of determining the objections. The third parties had offered to provide redacted bank statements and tax returns of EPL in so far as those documents related to transactions involving the husband. The wife did not agree and pressed the subpoena in its entirety.
The court found that the wife's conduct in issuing subpoenas that were deemed too wide justified the costs orders. The wife's conduct was a relevant consideration, but the fact that the objection was upheld and the wife was wholly unsuccessful was more significant. The court also considered that the third parties had made offers of settlement to provide the information the wife sought and avoid the necessity of determining the objections. The wife's refusal to accept the offers of settlement was a relevant consideration. The court dismissed the wife's application and ordered her to pay the costs of the third parties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Further, the wife seeks to review Orders 2 and 3 made by a Senior Judicial Registrar on 5 August 2021 requiring the wife to pay costs in relation to objections to subpoena issued by the wife to the National Australia Bank (“NAB”). The objections were made both by the husband and by the husband’s parents and a company controlled by the husband’s parents, E Pty Limited (“EPL”).WHAT IS THE EVIDENCE OF THE PARTIES’ RESPECTIVE FINANCIAL POSITIONS? The application in relation to costs and interim property settlement require an investigation, in so far as it is possible on the available evidence, of the parties’ respective assets, liabilities and income. The wife has no significant assets. The husband is the registered proprietor of a house in Melbourne where they lived for a short time in 2019. There is no evidence of the value of the Melbourne property. The husband, in his Financial Statement, ascribes to it the value at the time of purchase, $2,360,000. The husband’s evidence is that the mortgage liabilities, secured against the Melbourne property, exceed its value. The husband has bank accounts totalling $18,930 and a car. It does not appear to be disputed that the husband, before the parties separated, executed documents giving security for money advanced to him for the purchase of the Melbourne property and for living expenses. The wife disputes the asserted mortgage liabilities. The husband’s evidence is that he has a mortgage to the NAB for which he pays $1,826 per week and a mortgage to EPL as trustee of the Barns Settlement Trust (“the Trust”) for which he pays $755 per week. The husband is one of the discretionary beneficiaries of the Trust. He is not the appointor of the Trust and nor is he either a shareholder or a director of EPL. The husband deposed that his father controls the Trust. Further the husband deposed that he has not received any distribution from the Trust since the commencement of the parties’ relationship. The husband’s father has sworn an affidavit in the proceedings. He deposed that he, and his wife, are the shareholders and directors of EPL. He deposed that the Trust has lent money to the husband to purchase real property and to maintain his lifestyle. Annexed to the affidavit of the husband’s father are two loan agreements, both executed on 8 October 2019. The first agreement, titled “Deed of Loan Agreement (Interest and Capital)” refers to three advances. The first of $100,000 is acknowledged to have been repaid. The second of $2,261,483.41 of which $1,652,100 was repaid, has a balance owing of $609,418.41 as at 16 April 2019 with interest repayable on the balance outstanding. The third advance made on 13 August 2019 of $1,270,000, of which $300,000 was repaid leaving $970,000 outstanding, was for the purchase of the Melbourne property. In relation to the amounts outstanding, interest is specified to be paid monthly at the rate of 3 per cent per annum, increasing on default to 4.6 per cent per annum and the advances are to be secured over the Melbourne property.
Decision
Reasons for decision
The application will be dismissed.REVIEW OF THE SENIOR JUDICIAL REGISTRAR’S DECISION The wife issued a subpoena to the NAB seeking the production of bank statements in relation to accounts in the name of EPL from 1 January 2013; accounts in the names of the husband’s parents from 2015 and the husband’s accounts from 2015. The husband’s parents and EPL (“the third parties”) were not parties to the proceedings. The husband’s parents personally, and as directors of EPL, lodged an objection broadly on the ground that the subpoenas were too wide, seeking to have produced documents relating to the personal affairs of the husband’s parents and the commercial dealings of EPL which were unrelated to any issue in the proceedings. The husband lodged a similar objection in relation to his own accounts. On 12 March 2021, the Senior Judicial Registrar (“the registrar”) upheld the objections. The wife did not seek to review that decision. On 5 August 2021, the registrar ordered the wife to pay the husband and objectors’ costs. The wife now seeks to review that decision. This determination therefore proceeds by way of hearing de novo and is governed by the provisions of s 117(2A) of the Act. I propose to deal firstly with the order for costs in favour of the third parties. Although there is no evidence of the financial position of the husband’s parents or of EPL, I infer from the evidence in the substantive proceedings that they are in a vastly superior financial position to that of the wife. The wife’s conduct, in issuing subpoenas which were judged to be too wide, is a relevant consideration. However, more relevant is the fact that the objection was upheld and therefore the wife was wholly unsuccessful. Further, I was directed to offers of settlement made by the third parties in an effort to provide the information that the wife sought and to avoid the necessity of the objections being determined. On 8 March 2021, solicitors instructed by the third parties sent a letter to the wife’s solicitors enclosing several pages of redacted bank statements and offering to provide redacted copies of other documents including the tax returns of EPL in so far as those documents related to transactions involving the husband. On that basis, the solicitors sought agreement that the wife would withdraw the subpoena to the NAB. The wife did not agree and pressed the subpoena in its entirety. Both the wife and the third parties sought costs. On 7 April 2021, the registrar made directions in relation to the filing of costs submissions. The third parties’ submissions in relation to costs were filed on 23 April 2021. The third parties wrote to the wife’s solicitors on 15 April 2021, offering to resolve the issue on the basis that each party pay their own costs. On 16 April 2021, the wife’s solicitors wrote to the third parties’ solicitors stating that they did not agree and “We intend to file an application to review the registrar’s decision out of time in respect of the ruling about the NAB subpoena”.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.