Bellanger & Wemble (No 6)
[2025] FedCFamC2F 1065
•7 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 6) [2025] FedCFamC2F 1065
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 July 2025 Catchwords: FAMILY LAW – Where a witness was called to provide “messenger” communication to the court – where the witness declined to provide the communication – where the court made a ruling for the communication to be provided. Legislation: Evidence Act 1995 (Cth) ss 12, 26 & 36 Cases cited: Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Papadopoulos & Papdopoulos (No 2) [2007] FamCA 1683
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 28 April 2025 – 1 May 2025, 23 May 2025, 2 – 4 July 2025 & 7-9 July 2025 Place: Melbourne Solicitor for the Applicant: Mr Monoah of Sunshine Lawyers Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: In person Counsel for the Independent Children's Lawyer: Mr Combes Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 JULY 2025
THE COURT ORDERS THAT:
1.Ms P Wemble is to provide the “Messenger” communications between herself and the Father, Mr Wemble, to the lawyers for the Mother, the Independent Children’s Lawyer and to the Grandmother.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
In this case, I have determined that I will support the call for the production of the “Messenger” communications between the witness, Ms P Wemble (‘Ms P Wemble’), and the first respondent, Mr Wemble (‘the Father’), notwithstanding that the first respondent has not appeared in the proceedings. My reasons for doing so are founded firstly in the question of whether or not I have power to order the witness to produce the documents. I note that section 12 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) is as follows:
Section 12 Competence and compellability
Except as otherwise provided by this Act:
(a) every person is competent to give evidence; and
(b)a person who is competent to give evidence about a fact is compellable to give that evidence.
The long and the short of that provision is that every person is competent to give evidence unless there is a reason to the contrary and every person who is competent to give evidence is compellable to give evidence.
In this case, the second respondent to the contravention application of the applicant (the Mother of the children being the applicant (‘the Mother’) and the Grandmother (‘the Grandmother) of the children being the second respondent) is before the Court on the Mother's application that the Grandmother be dealt with for aiding and abetting her son, the Father, in a breach or breaches of orders of this Court made on 16 August 2021. Ms P Wemble comes before the Court as a witness called by the Grandmother.
During the cross-examination of the Grandmother, the Grandmother relied upon and served upon the other parties an affidavit by her daughter, Ms P Wemble, for the purpose of proving or corroborating the Grandmother's assertion that she was not at the town or city of City B on 15 March 2022 as asserted by the Mother.
15 March 2022
15 March 2022 is central to one of the crucial allegations of contravention against Ms Paige. It is alleged that on 15 March 2022, the two children of the Mother and the Father one aged 8 and the other aged 10[1] were removed by force by the Father from the care of the Mother.
[1] At the time of 15 March 2022.
The 16 August 2021 orders had provided that the children live with the Mother and provided that the Father communicate with the children by telephone each week of a Wednesday evening. The Mother alleges that she had travelled to Country D in December of 2021 with the children for the purpose of visiting her aged and alleged to be frail Father, that is, the maternal grandfather of the children.
The 16 August 2021 orders had arisen in the context of the Father resisting the Mother's proposal and later application that he execute a passport to permit the children to travel to Country D.
Ms P Wemble’s evidence
The witness Ms P Wemble’s affidavit was short in length and purpose, but her cross-examination has been significantly longer. That cross-examination has taken some considerable time largely because of the necessity for every word of the proceedings to be spoken and delivered in short chunks so the interpreter is able to interpret the words and the substance of the words to the Grandmother.
In the course of that cross-examination by the solicitor advocate for the Mother, the relevance of WhatsApp communications between the witness, Ms P Wemble and the Father were investigated and became relevant.
The witness, Ms P Wemble, without quarrel, did not object to the production of WhatsApp communications from and after 14 September 2024 between herself and the first respondent Father. The Court made directions to ensure that anything related to the medical history of the witness was not provided to the lawyers for the applicant and the Independent Children’s Lawyer.
Late on Friday evening during her cross examination, a request was made of the witness Ms P Wemble that she provide access to the text and substance of those communications so that there was a record of that. I have been told this morning and I understand that Ms P Wemble produced, either Friday evening or over the weekend, a significant number of communications that were able to be reduced to writing.
Further application to view “messenger” communication
This morning, the solicitor advocate for the applicant Mother Ms Bellanger requested the witness to provide to him, on her mobile phone, the communications between that witness and the first respondent Father by the means or mode or system or electronic system known as "Messenger". At first, that was a request, and the witness declined to produce the communications on the basis that that was unnecessary because the substance of the Messenger communications was the same as the WhatsApp communications. Subsequently, the solicitor for the applicant made application to me that the witness be ordered to produce the documents or what could also be referred to in legal terms as a “call” for the communications or records of the Messenger communications, there and then, from the witness.
I refer to section 26 of the Evidence Act relating to the Court's power and control over the questioning of witnesses.
Section 26 Court's control over questioning of witnesses
The court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned; and
(b)the production and use of documents and things in connection with the questioning of witnesses; and
(c) the order in which parties may question a witness; and
(d)the presence and behaviour of any person in connection with the questioning of witnesses.
(emphasis added)
Whether or not that section 26, as recited, gave the Court the power to compel the witness to hand over the communications of the Messenger service in issue on this application, it is clear that section 36 of the Evidence Act specifically provides that that be so. Section 36 provides as follows:
Section 36Person may be examined without subpoena or other process
(1) The court may order a person who:
(a) is present at the hearing of a proceeding; and
(b) is compellable to give evidence in the proceeding;
to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.
(2)A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.
(3)A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.
(emphasis added)
The long and the short of it is that the Court is specifically empowered to order a person who is at the hearing of a proceeding and is compellable to give evidence to actually give evidence and to produce documents or things, even if a subpoena or other process has not been served on the person. In this case, no subpoena has been served on Ms P Wemble. I again refer to section 36 includes section 36(2) which is recited above.
When the witness Ms P Wemble was given the opportunity to take legal advice on this question, she courteously requested the Court to simply proceed.
I refer to Cronin J's decision of Papadopoulos & Papdopoulos (No 2) [2007] FamCA 1683 as to the test in regard to relevance of documents or information or, rather, the extent of relevance necessary for the Court and the other parties to intrude into a non-party's life by examining otherwise private communications.
47. In Ansett Industries Ltd v Commonwealth 3 Marks J said that the purpose (of the [disclosure] Rule) is that of ordinary discovery, namely, to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance the fair determination of the issues. That has different words to the explanatory memorandum that came with the rules of this Court but the philosophical meaning must be seen as much the same.
48. Other jurisdictions have taken a similar view that the production of documents by a non-party before trial advances the interests of justice by promoting settlement4.
49. The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors5 where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50. Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
I also refer to and repeat the observation of Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407 where Dawe J observed.
14.In the recent case of Martin & Martin and Anor [2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28:
28.In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R [1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist. “Fishing” can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one. Here, NFL says that it knows what it is looking for even if it cannot specifically point to the exact sequence of events. It submits that the documents pursued will provide the answers to fill in the missing details as distinct from providing it with a case. As I understand NFL’s submission, this is an extension or further step based on that information. As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said:
39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1)The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2)If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection".
41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case".
42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
29.Counsel for the objector did not dispute that what I had there said summarised the law. In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed:
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
Conclusion
The starting point is that an individual who is not a party is entitled to keep their private communications just that, private. I am satisfied in this case, as submitted by the solicitor advocate for the applicant Ms Bellanger and as submitted by counsel for the ICL, that there is a relevance and/or an apparent relevance to the communications from and between the first respondent Father and the witness, his sister, Ms P Wemble.
I make it clear that the same carve out or exception in regard to the Messenger communications is to apply as to the WhatsApp communications (any medical matters concerning the witness are not to be accessed).
Hence, I order Ms P Wemble to provide the “Messenger” communications between herself and the Father to the lawyers for the Mother and to the ICL and to the Grandmother
POST SCRIPT:
The “Messenger” communications were provided as soon as practical after these reasons were delivered.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 6 August 2025
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