Bayat & Diba
[2025] FedCFamC1F 166
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bayat & Diba [2025] FedCFamC1F 166
File number(s): PAC 5487 of 2023 Judgment of: RIETHMULLER J Date of judgment: 14 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where respondent husband is facing local court proceedings – Where applicant wife contends husband’s criminal court file should be released for final hearing – Where wife argues husband’s criminal court file is material if Kennon argument is pressed at final hearing – Where husband argues criminal court file serves little utility in circumstances where local court judgment will be appealed on jurisdictional grounds – Legitimate forensic purpose – Consideration of whether it is “on the cards” that the documents will materially assist the wife’s case – Evidence in husband’s criminal court file may have relevance in final proceedings – Husband’s criminal court file to be released. Cases cited: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
Baranski v Baranski and Anor (2012) 259 FLR 122; [2012] FamCAFC 18
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Hill and Hill (2005) FLC 93-209; [2005] FamCA 42
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Martell & Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Mulley v Manifold [1959] 103 CLR 341; [1959] HCA 23
R v Saleam (1989) 16 NSWLR 14
S & S [2003] FamCA 905
Division: Division 1 First Instance Number of paragraphs: 19 Date of last submission/s: 10 March 2025 Date of hearing: Determined on the papers Place: Parramatta Solicitor for the Applicant: Sterling Legal, Mr Elbaz Solicitor for the Respondent: Grace Ashworth Ridge Lawyers Pty Ltd, Ms Grace ORDERS
PAC 5487 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BAYAT
Applicant
AND: MR DIBA
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The Registry Manager of the Parramatta Federal Circuit and Family Court of Australia is directed to request a copy of the husband’s criminal law file from Downing Centre Local Court for the following file number:
(a)...,
with such a file to be provided to the Court not less than two (2) business days prior to the final hearing.
2.Upon receipt, the husband’s criminal court file be released to the parties for inspection.
AND THE COURT REQUESTS THAT:
A.The above file be requested on 4 April 2025 noting the matter is returnable on this date in the Local Court for trial.
AND THE COURT NOTES THAT:
B.The matter is listed for final hearing commencing on 14 April 2025.
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 the pseudonym, Bayat & Diba, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The applicant wife requests the release of the respondent husband’s criminal court file for the purposes of the final hearing.
BACKGROUND
On 6 February 2025, I made final consent orders settling the parties’ parenting dispute. The property aspect of their dispute remains extant. An issue in the property settlement proceedings will be whether the wife can establish family violence at a level that will affect the assessment of contributions.
On 10 February 2025, I made orders which set out trial directions and allocated the matter a hearing date commencing on 14 April 2025 for a duration of three days. On the same day, my chambers received correspondence from the applicant’s legal representative disclosing that the husband was due to face sentencing in early 2025. The email received on 10 February 2025 at 12:05 pm stated the following:
… [Mr Diba] has a trial listed [in early] 2025 with respect to possible criminal charges stemming from the ADVO currently in place.
An Order for the Court file to be transferred before the trial might assist His Honour in this matter.
We kindly seek His Honour’s consideration of the issue.
There is a history of violence between the parties. There is an Apprehended Domestic Violence Orders (“ADVO”) in place dated early 2024 for the protection of the wife. Similarly, there is an ADVO in place dated late 2023 for the protection of the husband.
The criminal law proceedings followed the husband’s alleged attendance at an airport in contravention of the ADVO which prohibited him from having any contact with the wife. The wife alleges the husband approached her with “verbal threats saying he was going to kill [her] and tell the police that [she] was kidnapping his mother” (Single Expert Report dated 20 September 2024, p.11–12).
The wife has alleged that the husband has displayed other violent behaviour towards her. For example, the wife’s Notice of Risk filed 19 October 2023 alleges that in 2012, the husband “often started arguments which resulted in his violent episodes, including hitting [her], pushing [her], and pulling [her] hair aggressively”. The Notice of Risk also identifies another incident in which the husband allegedly “became very angry, and brandished a knife, saying words to the effect of, “Either I kill you or I kill myself”.” On a further occasion, the wife alleges the husband “stopped taking his prescribed […] medication and began to perpetrate violence on [her] constantly, such as hitting [her] and pushing [her].”
Request to inspect the husband’s criminal court file
The wife seeks to inspect the husband’s criminal court file.
The husband’s solicitors advised that the determination made by the Local Court in relation to the criminal proceedings were being appealed on jurisdictional grounds and would thus serve little utility in the parties’ property proceedings, stating:
In relation to the Court’s email sent 11 February 2025 requesting the parties consenting position to the release of the Husband’s pending criminal sentence scheduled for [early] 2025 at the […] Local Court. As a matter of disclosure, we have no objection to the Court file being released, however, it is our understanding that the criminal lawyer with carriage of the matter has indicated that based on a jurisdictional argument and on the primary determination, an appeal is intended to be lodged, pending the delivery of the sentence.
We further submit that it is the case that in any event the Husband intends to disclose the circumstances of such proceedings through his trial affidavit.
We are unsure if there is any utility in ordering the Court file at this stage of the Husband’s criminal proceedings, taking into account its probative value which we submit may not be considered at its highest until the Husband’s criminal proceedings have concluded, indefinitely.
Please see attached preliminary advice from [the] solicitor for the Husband in his criminal proceedings.
At this point, we object to the release of the Court file until the criminal matter has concluded, however, we are of course in the Court’s hands.
Under these circumstances the release of the file prior to any final outcome could prejudice our client’s position at trial.
(Email received 14 February 2025)
The attached preliminary advice of the husband’s criminal law solicitor provided the following:
… While the Family Court can no doubt have regard to the file, there would need to be a serious argument as to any weight that can be placed on the material obtained in light of the fact the matter is not yet concluded and the intention noted above.
As at the time of this email there is no conviction entered against our client. The primary submission on sentence will be that the matter should be dealt without conviction in any event.
(Email dated 13 February 2025)
The wife’s solicitors argued that the file ought to be released for the final hearing, saying:
It is our client’s position that the criminal court file is anticipated to have high utility in circumstances where family violence is a thread intertwined throughout this matter. The intention of the material is to assist His Honour in determining what may be a Kennon argument, as well as corroborating the Wife’s evidence to come, both written and oral.
[I]t cannot be relied on that the Husband will voluntarily disclose the details of the criminal proceedings fully and frankly, especially when submitting in the same correspondence that the material may prejudice his case.
Rather, the prejudice would be worn by our client in circumstances where the Court is not fully appraised of matters relating to family violence and the criminal aspects of the parties’ litigation which forms part of the Wife’s case in this matter. It would be beneficial to the Court and His Honour to be fully informed when hearing the evidence and delivering judgment with the assistance of the material provided in the criminal court file.
Again, referring to my friend’s submissions, we understand that there may be an intention to appeal, but there is no guarantee that the trial judge will fault in their judgment, that there would be grounds for appeal, or that the Husband will succeed on any such appeal. So as to not prejudice either party, we submit that the criminal court file be requested, and that the Husband can make any commentary as to his intention to appeal the criminal matter in his trial affidavit, rather than prejudicing the Wife’s claim by denying this matter and His Honour access to material that is intended to assist His Honour’s judicial determination.
In any case, we remain the in the hands of the Court and will be guided by His Honour’s decision.
(Email received 14 February 2025)
When asked to confirm whether a Kennon argument would be pressed at trial, the wife’s solicitors said, “[t]he Kennon argument is only a possibility at this stage” (Email received 10 March 2025).
Neither party sought an opportunity to make oral submissions.
In Alister v The Queen (1984) 154 CLR 404, Gibbs CJ said (at 414) that the inspection of subpoenaed documents should be allowed if “it appears to be “on the cards” that the documents will materially assist the defence.”
Similarly, Hunt J (with whom Carruthers and Grove JJ agreed) in R v Saleam (1989) 16 NSWLR 14 (at 18) said “[i]n my view, the criterion finally suggested by Gibbs CJ in Alister v The Queen…is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production.”
Even if the judgment of the Local Court is successfully appealed, the evidence used in the criminal case may still be relevant and shed light on issues in dispute.
It would ordinarily be a “legitimate forensic purpose” for the wife to seek the husband’s criminal court file arising out of conduct directed towards her in circumstances where she could possibly be pressing a Kennon argument at the parties’ property proceeding as it is “on the cards” that the husband’s criminal court file would contain information that would be relevant to the issues. Discovery is limited to issues in dispute and “[o]nly a document which relates in some way to a matter in issue is discoverable” but it is also sufficient where it “leads to a train of inquiry which would either advance a party’s own case or damage that of his adversary” (Mulley v Manifold [1959] 103 CLR 341 at 345). Seeking discovery with respect to a cause of action not pleaded does not relate to a matter in issue between the parties. The real question is whether the application is “fishing” in circumstances where a “Kennon claim” has not yet been formally put by the wife.
In this case, the question is not whether there is a separate cause of action for family violence or a tort, rather; whether the family violence (alleged in some detail in the wife’s Notice of Risk) rises to the level required to affect the assessment of contributions (see: Kennon v Kennon (1997) FLC 92-757; S & S [2003] FamCA 905; Hill and Hill (2005) FLC 93-209; Baranski v Baranski and Anor (2012) 259 FLR 122; Maine & Maine (2016) 56 Fam LR 500; Britt & Britt (2017) FLC 93-764; Keating & Keating (2019) FLC 93-894; Benson & Drury (2020) FLC 93‑998; Martell & Martell (2023) 66 Fam LR 650). In the evidence of this case, there is a clear claim that family violence has been a feature of the relationship. It is “on the cards” that the material sought will go to that issue. At this stage – the issue having been raised and already the subject of some evidence – seeking further evidence of violence is not a “fishing expedition”, but rather, an attempt to obtain sufficient evidence to support a claim that the family violence in this case is relevant to the assessment of contributions.
The response of the applicant’s solicitor is, in my view, a cautious assessment as to whether the family violence will ultimately be pressed as a relevant contribution factor in the discretionary assessment required in a property settlement case. This can only be definitively answered once the whole of the evidence can be considered.
For these reasons, I will order that the husband’s criminal court file be released to the parties for inspection.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 14 March 2025
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