Biondi & Koen (No 8)
[2025] FedCFamC1F 26
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 8) [2025] FedCFamC1F 26
File number(s): MLC 2872 of 2017 Judgment of: CARTER J Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the subpoenas seek the production of bank documents from third parties –Whether the subpoenas lack relevance – Objection upheld.
FAMILY LAW – PRACTICE & PROCEDURE – Where the objector asserts legal professional privilege – Where the Notice of Objection lists the documents but no further particulars provided – Where privilege is not established – Objection dismissed.
Legislation: Family Law Act 1975 (Cth) s 75 Cases cited: Barnes v Commissioner of Taxation (2007) 242 ALR 601
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93–038
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Strahan v Strahan (2013) 50 FamLR 434
Heydon, Dyson, Cross on Evidence (Lexis Nexis, 9th edition, 2012) (at 25240)
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 19 December 2024 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 2872 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIONDI
Applicant
AND: MR KOEN
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS THAT:
1.The following subpoenas issued by the applicant be struck out:
(a)to the Australia and New Zealand Banking Group Limited filed 12 December 2024;
(b)to the Bank of Melbourne filed 12 December 2024;
(c)to BM Bank filed 12 December 2024;
(d)to the Commonwealth Bank of Australia filed 12 December 2024;
(e)to the National Australia Bank Limited filed 12 December 2024; and
(f)to Westpac Banking Corporation filed 12 December 2024.
2.The documents produced by UU Lawyers pursuant to subpoena issued on 29 November 2024 by the respondent are released for inspection only as follows:
(a)to the applicant and/or her legal representatives; and
(b)to the respondent’s legal representatives.
3.All extant Notices of Objection are otherwise dismissed.
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
JUSTICE CARTER
The parties in this matter have a final hearing to determine the property and spousal maintenance dispute between them, listed on 14 March 2025. The parenting matters have been resolved by way of final orders on 6 May 2024. Ms Biondi is the applicant in the extant property proceedings, and Mr Koen is the respondent. I shall refer to them as such in this judgment.
Each of the parties has caused a number of subpoenas to be issued, some of which are the subject of objection. These reasons deal with those subpoena objections.
SUBPOENA TO THIRD PARTIES
The respondent objects to the subpoenas issued by the applicant on 12 December 2024 to the Australia and New Zealand Banking Group Limited, Bank of Melbourne, BM Bank, Commonwealth Bank of Australia, National Australia Bank Limited and Westpac Banking Corporation only in so far as the applicant seeks the production of documents held by those financial institutions in the names of the respondent’s parents and sister.
The respondent argued there are a great many documents sought from the third parties, spanning the last five years, that could have no relevance to the property application before the Court. Essentially, it is the respondent’s case that post separation, his family have provided him with funds to meet his legal fees, his obligation to support the applicant, and to meet various orders for payments on her behalf. However, he does not seek to include those funds as liabilities in the property pool. Accordingly, he argues, the bank accounts of his sister and parents cannot be relevant to the determination of any property claim.
The applicant’s case is a little difficult to understand. Doing the best I can, it appears she suspects that the respondent has – at some undetermined stage – siphoned funds from his business to his family members and then they have repaid him. That is, she does not accept that the funds from the respondent’s family are loans from them to him of their own funds but were instead a repayment to the respondent of business monies ‘hidden’ in their accounts. She said this would be relevant to the parties’ property dispute and to the respondent’s capacity to pay spousal maintenance.
The applicant was unable to articulate any foundation for her suspicions in this regard. I note the applicant has been provided with considerable discovery to date including the financial records of the respondent and of his business. She did not identify any suspect transfers or financial dealings that could support her suspicions that funds have been siphoned off from the company and paid to the respondent’s family members. At best her belief appears to be speculative.
In the circumstances, I am not satisfied that there is any basis for the financial records of the respondent’s family members to be the subject of subpoena. The invasion of the rights of third parties is, properly, well-guarded (see National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 per Moffitt P at 384). As already observed, there was no persuasive submission made by the applicant as to how the respondent’s family members’ financial documents could be relevant to the case that falls before me to be determined. She did not demonstrate how the documents sought would materially assist on any identified issue. Nor did she identify any reasonable basis beyond her suspicion or speculation that the documents could be of assistance to her case. At best, her subpoena in so far as she sought documents from third parties could be described as a “fishing expedition”.
As determined by the Full Court in Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93–038 at 87,606, “the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”.
Accordingly, the subpoenas will all be struck out. The applicant will need to re-issue the subpoenas without reference to third party documents and serve the banks with the fresh subpoenas.
SUBPOENA TO THE APPLICANT’S IMMIGRATION LAWYERS
The applicant objects to the subpoena issued by the respondent to UU Lawyers dated 29 November 2024. Those lawyers act on behalf of the applicant in relation to her immigration issues. When the matter was before me, the applicant was in Australia presumably on a visitor visa. It is her case that she has sought another visa, lodged in early 2020. There is some controversy as to whether both parties have done all they can to expedite the granting of that visa.
It is not in dispute that the husband has met and continues to meet UU Lawyers’ fees on behalf of the applicant.
Initially UU Lawyers filed a Notice of Objection. However that was withdrawn under cover letter dated 17 December 2024. The applicant then filed her own objection on 18 December 2024. She objects on the following basis:
(a)the documents are not relevant to the property proceedings;
(b)the documents are protected under client-lawyer privilege as they constitute confidential communications between the client and her lawyer which she does not waive; and
(c)the subpoena is excessively broad and unreasonable in scope.
In her oral submissions the applicant asserted the objections fell into two parts. First, some documents were subject to legal professional privilege. Secondly, she said some documents were not objected to and could be released subject to parts of the documents being redacted by her prior to inspection by the respondent. The information she said should be redacted included third party identifiers, all visa grant numbers, visa application identification numbers, transaction reference numbers and any other identifiable number linked to any visa application, all personal identifiers of the applicant save for her name and date of birth and “any information that is irrelevant to the subpoena”.
It is not clear from the Notice of Objection which documents were not the subject of objection and therefore could be released (subject to redaction) and those over which the applicant continued to claim legal privilege.
The Notice of Objection sets out a list of communications and documents to which the applicant objects. These include communications between her immigration lawyers and her lawyers in the family law proceedings; communications between herself and her immigration lawyers; and file notes of phone calls between herself and her immigration lawyers (Documents A to ZZZ).
The bulk of the balance of the listed documents (Documents AAAA to RRRRR) is comprised almost exclusively of communications between the applicant and the Department of Home Affairs, between the applicant’s immigration lawyers and the Department of Home Affairs, as well as documents such as police checks, copies of passports, and Visa application forms.
The final listed document (SSSSS) is titled “Legal Submissions of Ms TT, UU Lawyers, dated 6 November 2024”.
There is no description of the documents or communications beyond merely listing them – providing the date and in relation to correspondence, who that was from and to. There was no evidence adduced as to the nature of the communications or the documents, or the context around their creation.
The respondent does not agree that the communications or documents are irrelevant, that they attract any privilege, that they should be redacted in any way, or that the subpoena is excessively broad and unreasonable in scope.
Relevance
It is the respondent’s assertion that the communications and documents are relevant to the property dispute. He says the applicant’s ability to live and work in Australia, depending on the terms of the visa granted, are clearly matters relevant under s 75(2) of the Family Law Act 1975 (Cth). It was further asserted that the applicant’s cooperation, or otherwise, in her visa being expedited is a relevant consideration.
I am satisfied the material sought is relevant to the property proceedings. The applicant’s visa status, the terms of it, and the steps she has or has not taken to pursue the granting of the visa are important considerations. This is clear as in her most recently filed Third Further Amended Initiating application filed 2 July 2024 the applicant seeks orders, inter alia, that the respondent pay her spousal maintenance and all her medical expenses pending her obtaining approval of the contributory parent visa and full-time employment; and that he pays all legal fees relating to and incidental to the visa application. In the affidavit filed contemporaneously with the initiating application, the applicant deposed she also sought:
(a)funds from the respondent to temporarily depart Australia with the child as she says she is required to be offshore when the contributory parent visa she seeks is granted; and
(b)that he pay all costs necessary “to prioritize the process” of her contributory parent visa.
It is plain that the documents and communications contained in the file of the immigration solicitors are relevant – in that they could rationally affect the Court’s determination of facts and issues in dispute.
Client legal privilege
It is now settled law that a person can resist providing documents which would reveal, relevantly:
(a)communications between a lawyer and client, or between lawyers, or a document that was prepared for the dominant purpose of giving legal advice to the client; and
(b)communications between a client and another person, or between another person and the lawyer or a document prepared for the dominant purpose of providing legal services, including representation in legal proceedings or anticipated proceedings in which the client might be a party.
The applicant has the burden to satisfy the Court that the privilege is applicable.
The authorities make it plain that the person claiming the privilege must justify that claim – by pointing to the nature of the documents or describing the circumstances in which they were brought into existence.
I note the observations by Dyson Heydon, Cross on Evidence (Lexis Nexis, 9th edition, 2012) (at 25240) quoted with approval by the Full Court in Strahan v Strahan (2013) 50 FamLR 434 at [29] as follows:
Focused and specific evidence demonstrating the dominant purpose is needed. But in most cases the factual basis for the claim to privilege must be placed before the court by admissible evidence or by agreement. This requirement is not satisfied by the traditional, but reprehensible, practice of parties making an affidavit of documents baldly asserting that the privileged purpose was the dominant purpose for which the document was brought into existence. The assessment of the disputed claim to privilege will then be undertaken upon the facts deposed to, including the circumstances attending the creation of the document including such statutory provisions as are relevant.
In the extant matter, the applicant has not given the Court any insight into the “thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document”; see Barnes v Commissioner of Taxation (2007) 242 ALR 601 at [18]. She has simply provided a list of the documents – and nothing more.
By merely listing the documents without any description of what the document or communication contains, or the context of it, the applicant has not sufficiently met the requisite standard of proof to establish legal professional privilege exists. At its highest, the applicant asserts that the documents “were prepared for the dominant purpose of providing legal advice and are therefore protected by Legal Professional Privilege”. A bald assertion, or generalised comment to that effect – without any further particulars – falls short, in my view of providing an adequate basis for claiming privilege.
I was also not invited by either party to inspect the documents.
I note further the submissions by counsel for the respondent that the purpose of engaging the immigration lawyers was decided jointly by the parties, for the joint – and likely dominant – purpose of the applicant securing a visa and being able to remain in Australia. This is a process in which both the applicant and respondent are engaged and a process funded entirely by the respondent. There is much force in that submission.
Has the privilege been waived or lost
In circumstances where I am satisfied that the applicant has not established that the claim for privilege attaches to the documents and communications, I do not need to consider whether or not the applicant has waived privilege over those documents.
The applicant’s other complaints
The applicant made virtually no submissions to support her objection that the subpoena was excessively broad and unreasonable in scope. At any rate, it is not.
The applicant contended that if documents were produced, she should first be able to redact from those documents what she regarded as “personal information”. She said that included her driver’s license, visa application numbers and third-party contact information.
I do not agree that information should be redacted. There is no evidence beyond the applicant’s vague suggestion that there is any risk the respondent will utilise that information inappropriately. I have some concerns that the applicant may redact information that need not be redacted. If she does redact the documents, there is a risk that Court time could be wasted if there are arguments about what should and should not be redacted. At any rate, a more efficient way of dealing with that issue is to ensure that at least initially any documents produced will be released for inspection to the respondent’s solicitors only.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 24 January 2025
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