Binav & Rangar
[2025] FedCFamC2F 436
•7 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Binav & Rangar [2025] FedCFamC2F 436
File number(s): SYC 7645 of 2022 Judgment of: JUDGE COLQUHOUN Date of judgment: 7 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – objection to subpoena for lack of legitimate forensic purpose – objection to production based on religious confession privilege – section 127 of the Evidence Act 1995 (Cth) Legislation: Evidence Act 1995 (Cth) s 127
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.29
Cases cited: Bloc (ACT) Pty Ltd v Crafted Capital Pty Ltd (No 3) [2021] ACTSC 178
Osferatu & Osferatu [2015] FamCA 441
R v Vincent; R v Young(No 2) [2021] ACTSC 50
Vissell & Vissell [2021] FamCAFC 76
X Pty Ltd & Merhi [2015] FamCA 622
Division: Division 2 Family Law Number of paragraphs: 50 Date of hearing: 4 March 2025 Place: Sydney For the Applicant: Litigant in person Solicitor for the Respondent: Ms Benel of FB Legal Solicitor for the Other: Ms Metry of SKM Lawyers Solicitor for the Independent Children's Lawyer: Ms Mason of Mason Mia & Associates - excused from appearing on this occasion ORDERS
SYC 7645 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BINAV
Applicant
AND: MS RANGAR
Respondent
B CHURCH
Other
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE COLQUHOUN
DATE OF ORDER:
7 APRIL 2025
THE COURT ORDERS THAT:
1.The objection to the subpoena issued to the Proper Officer, B Church is partially upheld.
2.The Registry is directed to destroy any documents already produced in answer to the subpoena to B Church within 14 days of the date of this order.
3.Within 14 days of the date of these Orders B Church is to:
(a)Produce the following documents from the Church's File No …:
(i)a “Marital Conflict Application Form” dated 30 October 2022 submitted by the father
(ii)identity records for the father;
(iii)medical report for the mother (provided by the father);
(iv)divorce order dated 8 March 2023;
(v)character reference written by Mr C for the father;
(vi)“Marriage Permit” certificate issued to the father dated mid-2024; and
(b)Ascertain if either of the following documents from the Church's File No … refer to the making or content of any admission of actual or perceived wrongdoing by the mother to any member of the Clergy of B Church:
(i)notes of the Council “regarding the wife”; and
(ii)the Council's reasons for the decision; and
(c)Produce any document referred to in sub-paragraph 3(b) if it does not refer to the making or content of any such admission.
4.There be no order as to costs.
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).
REASONS FOR JUDGMENT
JUDGE COLQUHOUN:
This matter is about the parenting arrangements for X who is now 5 years old. This aspect of the proceedings relates to a subpoena issued on the request of the father to “the Proper Officer, [B Church]”. No issue was raised by any party with the description or identity of the recipient of the subpoena, which I will hereafter refer to as “the Church”.
This subpoena, filed on 11 February 2025, sought the following records:
Any witness statement or report or document in relation to the Annulment application/determination in relation to the marriage of [Ms Rangar] (dob […] 1988) and [Mr Binav] (dob […] 1985), including the report of [Mr C], from [late] 2022 to [late] 2024, being in relation to File No: […] Decision No.: […], Ref: […]
In response to the subpoena the Church produced a copy of a file (No: …) relating to a “Marital Conflict Application” filed by the father with the Church seeking an “annulment” of his marriage to the mother (“the Marital Conflict Application File”), but filed a notice of objection relying on the religious confession privilege under s 127 of the Evidence Act 1995 (Cth) (“the Evidence Act”). The objection also mentioned “public interest immunity”, “privileged communications”, “protected sensitive and confidential documents” and “no authority or consent”, but those matters were not further developed or advanced as separate grounds of objection. Accordingly, I do not propose to address them. The only ground ultimately pursued by the Church was the religious confession privilege.
On 3 March 2025 the mother filed a case summary document, seeking that the subpoena be set aside for lack of a legitimate forensic purpose.
On 4 March 2025 the father filed a case summary document, essentially seeking orders that the Church produce the documents sought by the subpoena.
The case came before me on 4 March 2025 for an interlocutory hearing in relation to the subpoena objection. The father appeared for himself. The mother and the Church were each represented by solicitors.
The questions for my consideration in relation to the subpoena are:
(a)Does the subpoena serve a legitimate forensic purpose?
(b)Does the religious confession privilege under s 127 of the Evidence Act apply to any or all of the material produced by the Church?
BRIEF BACKGROUND
The father, born in 1985, is 39 years old and the mother, born in 1988, is 36.
The parties met in Country D in 2016 and were married in Country D in 2017. The father moved to Australia in 2017 and the mother relocated to Australia to join him in 2018. They started living together upon the mother's arrival in Australia.
The parties' son X was born in 2020.
The parties separated on 1 October 2020. X has lived with the mother since separation.
A divorce order was made by this Court and took effect on 9 April 2022.
On 29 October 2022 the father commenced these proceedings seeking orders in relation to his time with X.
On 28 March 2023 interim orders were made by consent. These orders provided for the mother to have sole responsibility for X, for X to live with the mother and spend time with the father supervised by E Family Services for up to two hours per fortnight.
Each party alleges that they have been subjected to violence and abuse at the hands of the other party. The father also contends that the mother suffers from a mental health condition which impacts her parenting of X.
The family report of Court Child Expert Ms F, released on 4 April 2024, recommended that the mother hold sole parental responsibility for decision-making, that X continue to live with his mother and that X have supervised time with his father initially, progressing eventually to unsupervised time.
The father filed an amended application for final orders on 14 February 2025 seeking an order that X continue to live with his mother and have time with the father, progressing from supervised to unsupervised time.
The mother filed an amended response to an application for final orders on 26 February 2025 seeking orders that she hold decision-making responsibility for X and that X spend no time with the father.
Both parties were members of B Church. They attended Church regularly and had meetings with Mr C, Parish Priest of G Church. The father stated that he applied to the Church for a divorce (or annulment) and that the material produced by the Church relates to that process.
LEGITIMATE FORENSIC PURPOSE
Any subpoena which requires the production of documents is valid only to the extent it serves a legitimate forensic purpose. The relevant principles have been neatly summarised by McClelland J (as his Honour then was) as follows:
A subpoena must only be used for a legitimate forensic purpose. In considering this issue it is unnecessary for the party issuing the subpoena to establish actual relevance. However, it is necessary for the party seeking to rely on the subpoena to establish that the documents sought have “apparent relevance” to the issues in the substantive proceedings before the court.
In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
While it is the case that the bar for establishing relevance is not high the party seeking to rely upon the subpoena must non-the-less establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive case.[1]
[1] X Pty Ltd & Merhi [2015] FamCA 622, [28]–[30] (citations omitted).
The father claimed that the subpoena had a legitimate forensic purpose for the following reasons:
(a)Mr C was a witness to child abuse perpetrated by the mother against X;
(b)the Marital Conflict Application File should contain a “witness report” from Mr C referring to violence by the mother perpetrated against X and the father;
(c)the material produced by the Church would help the father to demonstrate that he was a victim rather than a perpetrator of family violence;
(d)the mother is seeking orders that he have no time with X and the material is relevant because it will help the Court to understand the dynamics of the relationship;
(e)the documents on the file would help the father to establish that the mother posed a risk of harm to X, which is relevant to the determination of parenting arrangements; and
(f)if the Court found that the mother was exposing X to harm, he would ask the Court for sole parental responsibility and an order that X live with him.
The mother claimed that the subpoena had no legitimate forensic purpose and should be set aside for the following reasons:
(a)as the father does not seek an order that the child live with him, any material which impugns the mother's parenting capacity is not relevant;
(b)the weight that could be placed on what Mr C witnessed or heard would be minimal; and
(c)the father could have obtained an affidavit from Mr C instead of using the subpoena process.
The mother’s allegations that the father was a perpetrator of family violence, and that there is an unacceptable risk of harm to X because of the father’s use of family violence, are central issues in this case. The father also alleges that he and X were victims of family violence perpetrated by the mother. The Court will be asked to determine what arrangements would promote the safety of X and, in doing so, consider any history of family violence, abuse or neglect involving the child. I am satisfied that it is on the cards that the contents of the Marital Conflict Application File produced by the Church would bear upon and have relevance to these issues.
Accordingly, I am not persuaded that the subpoena should be set aside on the basis of a lack of a legitimate forensic purpose.
RELIGIOUS CONFESSION PRIVILEGE
The religious confession privilege arises under s 127 of the Evidence Act which states:
(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.
(2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.
(3) This section applies even if an Act provides:
(a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or
(b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground.
(4) In this section:
"religious confession" means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned.
No party directed the Court to any authorities or commentaries on s 127 of the Evidence Act. I have not been able to identify any authorities, but I have found the following two commentaries.
In 2005 the Australian Law Reform Commission (ALRC) relevantly stated:
A specific privilege in respect of religious confessions was not recommended by the ALRC in its earlier inquiry because it was considered that confessions fell under the confidential communications privilege. Such a privilege was nevertheless enacted in s 127 of the uniform Evidence Acts. The religious confessions privilege applies in pre-trial matters, as it relates not only to the adducing of evidence but also allows a member of the clergy (of any religion and religious denomination) to refuse to divulge that a religious confession was made or the contents of the confession. …
[T]he uniform Evidence Acts contain a broad definition of religious confession that takes into account the practices of different religions and religious denominations, the Commissions received one submission that suggested that not all religious practices could fall under this definition.[2]
[2] Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) 524-5 [15.85]-[15.87] (emphasis added) (citations omitted).
Odgers’ commentary on s 127 provides:
The privilege belongs to the member (or former member) of the clergy to whom the religious confession, as defined, was made. The wishes of the person who made the confession regarding whether it be divulged are not relevant. The privilege applies to both the fact that the confession was made and its contents …
Unlike the provisions in respect of client legal privilege, there is no express provision for loss of this privilege (except where the communication involved in the religious confession “was made for a criminal purpose”).[3]
[3] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2024) 1203-4 [127.30]-[127.60]
Subsection 127(1) is expressed in broad terms. It is clearly capable of extending to a member of the clergy of B Church and there is no reason to exclude documents from the scope of its protection. In light of its text, and in accordance with the commentary of the ALRC, I am also satisfied that the privilege can potentially apply to a pre-trial process such as a subpoena.
The issue in the present case is whether any of the relevant documents refer to the making or content of a “religious confession”, as defined in sub-s 127(4).
In my opinion, a communication would not constitute a “religious confession” unless each of the three following elements is satisfied:
(1)it consists of an express or implied admission of some kind of actual or perceived wrongdoing (although not necessarily a “sin”);
(2)it was made to a member of the clergy in the member’s professional capacity; and
(3)it was made according to a “ritual” of the relevant church or religious denomination involving the receipt of such a communication.
The Church invited me to inspect the Marital Conflict Application File and, as neither party objected, I have now done so. The file consists of copies of the following eight documents:
(1)a “Marital Conflict Application Form” dated 30 October 2022 submitted by the father to the Church seeking an “annulment”;
(2)identity records for the father;
(3)a medical report relating to the mother (provided by the father);
(4)a divorce order relating to the parties made by the Federal Circuit and Family Court of Australia dated 8 March 2023;
(5)a report by Mr C relating to the parties (especially the mother) and, separately, a character reference written by him for the father;
(6)notes by the Church “regarding the wife” (in Language H);
(7)the Church’s “reasons for the decision” (in Language H); and
(8)a “Marriage Permit” issued to the father by the Church dated mid-2024.
The first document identifies a “Father of Confession” for the father and the mother and contains a declaration by the father in the following terms:
… I do declare that all the information mentioned in this application are true and right. I accept that all proceedings of the council’s process are for [church] purposes only and that it will not be used for legal proceedings. I grant the members of the [Church] the complete right to use this information for the confrontation of the other person …
The second to fifth documents appear to constitute evidence considered by the Church in support of the father’s application. In particular, the first part of the fifth document appears to record statements made by the mother to Mr C pursuant to what the father described in his case summary document as “application interviews”.
The sixth and seventh documents (written in Language H) appear to constitute the Church’s notes and reasons for its decision on the father’s application.
The eighth document, which seems to provide permission for the father to remarry and appears to record or at least reflect the Church’s decision on the father’s application, states:
This Marriage Permit has been granted after careful consideration of the submitted reports and thorough study of the matter by the [Church] and under the light of the Church Laws, Decrees and Biblical Teachings.
Although I did not receive any specific submissions on this point, in the absence of any suggestions or evidence to the contrary, I am prepared to infer from the descriptions and/or contents (where written in English) of the eight documents themselves that the Marital Conflict Application initiated by the father was part of a “ritual” of the Church involving receiving evidence, including of communications made during “application interviews” conducted by members of the clergy of the Church with the parties to the marriage. Accordingly, I am prepared to accept that any of these documents from the Marital Conflict Application File that refer to the making or content of actual or perceived wrongdoing by the mother to a member of the Clergy during an application interview fall within s 127 of the Evidence Act.
It was not contended by any party that any of the documents referred to the making or content of an “religious confession” by the father, so I have not considered this issue.
The Church initially submitted that every document in the Marital Conflict Application File constituted a “religious confession” within the meaning of s 127 of the Evidence Act, but subsequently focussed exclusively on the first part of the fifth document (“Mr C’s report”), with its solicitor stating:
I can confirm to the Court that the nature of the document that was prepared by [Mr C] was a confessional statement that contains confessions made by the mother …
The father claimed that the “application interviews took place [with] multiple persons in the room” and were “not done in religious confessional settings”. The father’s position was primarily, if not exclusively, founded on his assumption that Mr C’s report was a “witness report” which described violence perpetrated by the mother against both X and him that he (Mr C) had personally witnessed. The Church repudiated that characterisation, with its solicitor stating:
I can confirm to the Court that having a look at the material that has been produced – in particular this confessional statement by [Mr C] – it does not contain any reference to the child of the marriage. It does depose of admissions made which, we say, falls within the nature of it being a confessional statement. He does not mention that he ever witnessed any abuse of the child, and I can confirm that, and your Honour can have a look at it if you wish …
I can confirm to the Court that the nature of the document that was prepared by [Mr C] was a confessional statement that contains confessions made by the mother.
In accordance with the Church’s invitation and in the absence of any objection from the parties, I have reviewed Mr C’s report and it:
(a)does not contain any reference to X;
(b)does not contain any representation that Mr C personally witnessed any family violence by the mother (or father); and
(c)does refer to admissions made by the mother to Mr C in relation to various matters.
The broad definition of a religious confession under the Evidence Act means that there are many ways in which confessions might be given and there is no reason that a religious confession could not occur as part of a religious divorce or annulment process and with other persons present.
CONCLUSION
In light of the matters referred to above, and my review of the entire Marital Conflict Application File, my conclusions are that:
(a)the first part of document 5 (Mr C’s report) refers to the making and content of religious confessions by the mother and is, therefore, exempt from production and inspection;
(b)there is reason to believe that documents 6 and 7 (which are written in Language H) might also refer to the making and/or contents of religious confessions made by the mother to members of the Clergy of the Church and they are exempt from production and inspection pursuant to the subpoena if they do, in fact, refer to the making or content of any admission of actual or perceived wrongdoing by the mother to any member of the Clergy (something the Church can verify itself); and
(c)none of the other documents in the file refer to the making or contents of any religious confession and, therefore, none of them is exempt from production and inspection.
The Orders of the Court reflect these findings.
THE MOTHER’S CASE SUMMARY DOCUMENT
The mother’s case summary document was filed on 3 March 2025 by the mother’s solicitor, Ms Fatima Benel. This document sets out the mother’s reasons for supporting the position of the Church in relation to the objection and her own position, including her argument that the material sought by the subpoena serves no legitimate forensic purpose. It includes the following section:
Additional Legal Considerations
1. Under Rule 6.29 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, a subpoena must be set aside if it is oppressive, an abuse of process, or seeks irrelevant material.
2. Courts have held that subpoenas must be issued for legitimate forensic purposes, not for speculative or prejudicial reasons (refer to Osferatu & Osferatu [2015] FamCA 707).
3. In Dwyer & Pritchard [2014] FamCAFC85, the Full Court confirmed that mental health issues must be assessed by qualified professionals and that hearsay evidence regarding a party’s mental health has little probative value.
4. The mother submits that the subpoena to the [B Church] should be set aside on these legal principles.
I have reviewed the above-mentioned rule and authorities and note that:
(a)Rule 6.29 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out time limits for the listing and service of subpoenas. It does not refer to the setting aside of subpoenas and is not relevant in the present case.
(b)The citation given for the decision is Osferatu is incorrect and the Court has been unable to find any other case by that name or citation in relation to the subpoena issue. There is the well known decision of Osferatu & Osferatu [2015] FamCA 441 but it deals with an entirely different issue and is not relevant in the present case.
(c)The Court has been unable to find the authority of Dwyer & Pritchard [2014] FamCAFC85 using this citation or through a wider search.
On 6 March 2025 my associate emailed Ms Benel to request that she provide further information to assist the Court to locate the rule and authorities she relied upon. Ms Benel then responded on the same date, stating that the rule and the authorities “must have been submitted in error” and advising that she now sought to rely on the following different authorities:
(1)Bloc (ACT) Pty Ltd v PKS Contractors Pty Ltd (No 3) [2021] ACTSC 50; and
(2)Vissell & Vissell [2021] FamCAFC 76.
The citation given for the first authority was for a different case of R v Vincent; R v Young(No 2) [2021] ACTSC 50, which is not relevant to the issues before this Court. However, I was able to identify a decision with a somewhat similar name, Bloc (ACT) Pty Ltd v Crafted Capital Pty Ltd (No 3) [2021] ACTSC 178, which does relate to an application to set aside a subpoena on the basis it did not serve a legitimate forensic purpose. Vissell & Vissell [2021] FamCAFC 76 is a decision of the Full Court which held that the subpoenas directed to a number of entities in property settlement proceedings did not serve a legitimate forensic purpose and were oppressive.
The mother’s case summary document was misleading and inexpedient, while the second set of authorities was also of no real assistance to the Court. I do not know how Ms Benel conducted her research and writing in relation to this matter, but it leaves something to be desired. It is important that legal representatives take care when referring to legislative provisions and authorities and avoid misleading the Court.
COSTS
Neither party nor the Church sought costs in relation to this matter and therefore no costs order is made.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Colquhoun. Associate:
Dated: 7 April 2025
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