Bauer & Nolan (No 2)
[2022] FedCFamC1F 56
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bauer & Nolan (No 2) [2022] FedCFamC1F 56
File number(s): WOC 1022 of 2019 Judgment of: CHRISTIE J Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Threshold issue – Family Law Act 1975 (Cth) s 90RD – whether a de facto relationship existed between the parties;
FAMILY LAW – INTERLOCUTORY APPLICATION – Subpoenas – Whether subpoenas to be issued constituted fishing – Whether subpoenas to be issued were irrelevant to the threshold issue for determination
Legislation: Family Law Act 1975 (Cth), ss 4, 90RD
Federal Circuit and Family Court of Australia Rules 2021 (Cth), r 6.38.
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 10 February 2022 Place: Sydney ORDERS
WOC 1022 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BAUER
Applicant
AND: MS NOLAN
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
10 February 2022
THE COURT ORDERS THAT:
1.The Notice of Objection to the subpoena caused to be issued to the National Australia Bank, which objection was filed on 4 February 2022, is withdrawn and dismissed.
2.The subpoena to the B Pharmacy, which was caused to be issued on 25 January 2022, is withdrawn and accordingly, the Notice of Objection to the subpoena caused to be issued to B Pharmacy which was filed 4 February 2022, is withdrawn and dismissed.
3.The subpoena to the applicant, which was caused to be issued on 13 January 2022, is withdrawn and accordingly, the notice of objection to the subpoena to Ms Bauer which was filed 27 January 2022, is withdrawn and dismissed.
4.The respondent is given first access to the documents produced on subpoena by C Company. Unless the matter has been relisted by arrangement with my Associate, with such arrangement to be made on or before noon on 16 February 2022, then leave is granted to the parties’ legal representatives to inspect documents returned on subpoena by C Company.
5.The subpoena to J Company, as regards paragraphs two, three and five is set aside.
6.First access is granted to the respondent to inspect material produced by J Company and separate out documents which do not fall within paragraph four and to copy and at the election of the respondent, redact the value of the superannuation interest wheresoever it might appear. Otherwise, leave is granted to inspect and copy documents produced on subpoena by J Company insofar as they are covered by clause four (with redactions).
7.First access is granted to the respondent to inspect material produced on subpoena by D University to the effect that the respondent may be permitted to remove any documents which fall after the date 30 June 2003.
(a)In the absence of the matter being relisted by arrangement with my associate on or before noon on 16 February 2022, leave is granted to the parties’ legal representatives to inspect and copy documents produced by D University.
8.The Notice of Objection to the subpoena caused to be issued to E Hospital, which was filed on 4 February 2022, is withdrawn and dismissed.
9.The respondent is granted first access to documents produced on subpoena by F Health Service. The respondent shall be entitled to separate any documents which do not refer to a history of the patient provided by a third party, any next of kin, partner, status or relationship information, any information contained on a consent form, admission form, discharge form or discharge paper work which does not relate to kin, partner, status of relationship or arrangements for clinical care of person after discharge. Otherwise after noon on 16 February 2022 leave is granted to the parties’ legal representatives to inspect and copy documents produced on subpoena by F Health Service.
10.The respondent is granted first access to documents produced on subpoena by G Insurance and shall be entitled to redact any information which does not refer to family status, beneficiaries, joint policies, change to beneficiaries or change to the relationship status recorded in either correspondence, applications or other communication.
(a)In the absence of the matter being listed before the court by noon on 16 February 2022, leave is granted to the parties’ legal representatives to inspect and copy documents produced on subpoena by G Insurance (as redacted).
11.The respondent is granted first access to documents produced on subpoena by H Insurance and shall be entitled to redact any information which does not refer to family status, beneficiaries, joint policies, change to beneficiaries or change to the relationship status recorded in either correspondence, applications or other communication.
(a)In the absence of the matter being listed before the court by noon on 16 February 2022, leave is granted to the parties’ legal representative to inspect and copy documents produced on subpoena by H Insurance (as redacted).
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 pseudonym Bauer & Nolan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an interlocutory application in respect of subpoena which have caused to be issued in proceedings between Ms Bauer (the applicant) and Ms Nolan (the respondent).
At the request of the applicant subpoenas were caused to be issued to; G Insurance, B Pharmacy, F Health Service, the National Australia Bank, H Insurance, C Company, J Company, D University and E Hospital. Notices of objection to all of those subpoena were filed and the matter came before the court for interim determination.
At the hearing the objections to the subpoena to NAB and E Hospital were withdrawn and the applicant indicated she would not call on the subpoena to the B Pharmacy.
The matter comes before the court for determination of a threshold issue pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”). The respondent for her part contends the parties relationship ended in 2001 whilst the applicant contends that the relationship ended in 2018.
As the parties and their lawyers are aware s 4 of the Act provides for a list of matters which the court might take into account when determining whether or not a de facto relationship existed between the parties at any time. It is accepted in broad terms that the nature of the documents sought by the applicant is relevant to the question of determination of whether or not there was a de facto relationship.
The respondent objects to leave been granted to inspect the documents produced under subpoena, objections are dealt with pursuant to r 6.38 of the Federal Circuit and Family Court of Australia Rules 2021 (“the Rules”). Some of the objections were consistent across all of the subpoenas and accordingly the determination of the objection in respect of one subpoena is likely to be relevant to all subpoenas where objection has been taken on that basis.
G Insurance
The subpoena was issued at the request of the applicant who sought:
A copy of all file notes detailing any enquires regarding insurance, online applications for insurance, applications submitted for insurance of and any documentation which identifies any information regarding or submitted with any application for insurance of [Ms Bauer], and/or [Ms Nolan], from the date the persons named in this subpoena first obtained any such insurance to the present date.
The following paragraph asks for details regarding the nomination of beneficiaries, appointment of representative, authority letters granting authority to a third-party and all other documents in relation to [Ms Bauer] and/or [Ms Nolan] from the date the persons named in this subpoena first obtained any such insurance to the present date.
Lastly the subpoena seeks email communications from [Ms Nolan] to [G Insurance] from 1 January 2010 to present date.
The objection was filed on the basis that the date range requested in paragraphs two and three is from the date the persons named in the subpoena first obtained insurance which is not relevant and constitutes fishing as it may predate the commencement of the relationship.
The date range request “to present date” in paragraphs two and three of the schedule and “to date” in paragraph four are not relevant and constitute fishing.
An objection was filed in respect of the subpoena to be issued to G Insurance, to the extent that objection is taken to material been produced on subpoena which either pre-dates the commencement of co-habitation on either parties case or post-dates the conclusion of co-habitation on either parties case then I accept that the subpoena objection is validly made however – as senior counsel submitted there may be merit in comparing documents from before and after to see how the respondent characterised her relationship at different periods.
I accept that the subpoena sought a broad range of documents that are unlikely to assist the court to determine the legal status of the parties’ relationship and as a consequence of submissions by both counsel I will limit the scope of the subpoena. That may require me to grant first access to the legal representatives for the respondent to separate material. I will make orders accordingly.
F HEALTH SERVICE
The subpoena was issued at the request of the applicant in the case Ms Bauer, who sought:
All information including; all medical reports, clinical notes, and writings and other documents in relation to any next of kin/partner/status of relationship; all admissions forms, consent forms. Patient information forms or any discharge paperwork; any other documents, notes, reports, records, files and correspondence held in relation to [Ms Nolan] … for the period 1 January 2010 to current date.
From the following health care facilities and streams; Hospitals, [E Hospital] and […] Care Services.
The objection is by the respondent Ms Nolan who objects on the basis that the subpoena material is not relevant to the matter to be determined by the court and the request for the documents constitute fishing.
To the extent that the objection which has been filed states that the material sought is not relevant to matters to be determined by the court I respectfully disagree. The subpoena explicitly seeks documents which relate to nomination of next of kin, partners and relationships. I accept that the subpoena may also cover material which is not relevant to the question of whether or not the parties were in a relationship but records of visits, who accompanied the patient, social work record and the like are likely to be relevant to the question of whether or not the parties were in a de facto relationship at the relevant time. I will make orders to allow for first access and redaction of personal health information that does not touch on relationship issues.
H Insurance
The subpoena was issued at the request of the applicant Ms Bauer, who sought:
Copies of all applications, file notes, correspondence, emails, or any written documents pertaining to the insurance of the following persons: [Ms Bauer], and [Ms Nolan], from 1 July 2010, or the commencement of any insurance, to present date.
Documentation pertaining to any and all benefits or rebates paid to the following persons: [Ms Bauer], and [Ms Nolan] from 1 July 2010 to present date.
Copies of all applications, file notes, correspondence, emails, or any written documents pertaining to the cancellation of insurance for those persons.
Objection to the subpoena material is based on the date range requested “to present date” was irrelevant and constitutes fishing.
For the reasons I articulated in respect of the subpoenas to G Insurance I dismiss the objections.
C Company
The subpoena was issued at the request of the applicant in the case Ms Bauer, who sought:
A copy of all entries of communications for the mobile numbers: A copy of all applications for a joint or linked account or any accounts for mobile numbers owned by: [Ms Bauer] and [Ms Nolan] for any period.
The subpoena material was objected to on the basis that the date range requested is not relevant and constitutes fishing.
Objection was taken to documents on the basis during oral submissions on the basis that the subpoena may be “misinterpreted” by the recipient. I am prepared to grant first access. If the subpoena has been misinterpreted that can be raised with me after inspection.
J Company
Turning then to the subpoena for J Company. The subpoena was issued at the request of the applicant in the case Ms Bauer, who sought:
Copies of all superannuation statements for the period 1 January 1999 to date of production in relation to [Ms Nolan]. Copies of all documents, communications, emails, writings, applications to access superannuation including any pension payments which have been made for the period 1 January 1999 to date of production in relation to [Ms Nolan]. Copies of all documentation which identifies the nominated beneficiaries of any superannuation interest held by, including documents which identify any changes to nominated beneficiaries for the period 1 January 1999 to date of production in relation to [Ms Nolan]. All email communications between [J Company] and [Ms Nolan] born […] 1958 from 1 January 1999 to 31 December 2018.
The respondent objects on the basis that “to date of production” mentioned in paragraphs two, three, four and five, is not relevant and constitutes fishing due to predating the relationship commencement date asserted by the Applicant. The respondent objects on the basis that “to date of production” is not relevant and constitutes fishing. The respondent objects on the basis the date range “to 31 December 2018” in paragraph five of the schedule is not relevant and constitutes fishing.
I accept that the documents sought are too broad. The documents which relate to beneficiaries are the relevant category of documents and I will grant leave to inspect those documents. I will grant the respondent access to separate documents that do not relate to beneficiaries. At her election the respondent may redact the balance of any account.
D University
Turning then to D University. The subpoena was issued at the request of the applicant Ms Bauer, who sought:
Documentation pertaining to the cessation of employment of [Ms Nolan]; Including but not limited to Deeds of Release, letters documents, emails, payments advices, and any letters pertaining to the redundancy, retirement or termination of employment including warning letters or any documents pertaining to disciplinary action for the period from 1 January 2001 to 1 January 2005. All documentation which identifies any next of kin, contact persons, for the employee from 1 January 1997 to 1 January 2005.
Objection was taken on the basis that the material being sought was not relevant to the threshold matter and objection was also taken in respect of the date range.
As developed in oral argument the suggestion that the material may not be relevant appeared to be abandoned but a dispute remained in respect of the time period. The parties agreed that the redundancy was received in the tax year ended 30 June 2003 although they do not agree as to when. Accordingly, the subpoena may be limited and leave granted in respect of any documents produced for the period 1 January 2001 to 30 June 2003. To the extent necessary I grant first access to the respondent to separate documents which fall outside this time period.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 10 February 2022
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