Bowen & Bowen
[2022] FedCFamC1F 673
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bowen & Bowen [2022] FedCFamC1F 673
File number(s): WOC 1194 of 2019 Judgment of: CHRISTIE J Date of judgment: 9 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the respondent husband seeks the second applicant’s will be produced on subpoena – Objection – Where the applicants assert it is not relevant to the issues to be determined at final hearing – Apparent relevance established – Where the respondent husband seeks the applicant wife’s will be produced on subpoena in line with full and frank disclosure – Where the applicant wife objects – Relevance not made out. Cases cited: Epstein & Epstein (1993) FLC 92-384; 16 FamLR 588,
Hatton v Attorney-General (2000) FLC 93-038; [2000] FamCA 892,
McLaren Holdings v McLaren (2000) FLC 93-030; [2000] FamCA 675,
White and Tulloch v White (1995) FLC 92-640; 19 Fam LR 696.
Division: Division 1 First Instance Number of paragraphs: 28 Date of last submission: 18 August 2022 Place: Sydney Solicitor for the Applicants: Meehans Solicitors Solicitor for the Respondent: Hansons Lawyers ORDERS
WOC 1194 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOWEN
Applicant
MR HUNT
Second Applicant
THE ESTATE OF MS HUNT
Third Applicant
AND: MR BOWEN
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
9 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.On or before 4.00 pm on 16 September 2022 the subpoenaed party comply with the requirement for production of documents referred to in paragraph 3(b) of the subpoena caused to be issued to Meehans Solicitors.
2.Upon production of the document/s referred to in Order 1, leave is granted to the parties to inspect and copy the documents produced.
3.Paragraph 4(b) of the subpoena caused to be issued to Meehans Solicitors is set aside.
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 Bowen & Bowen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings between the applicant Ms Bowen (“the wife”), the second and third applicants Mr Hunt (“the wife’s father”), the Estate of Ms Hunt (“the wife’s mother”) and the respondent Mr Bowen (“the husband”).
This application relates to subpoena and subpoena objections and, at the parties’ election, was determined on the papers.
Background
The property proceedings as between the parties concern a piece of real property at B Street, C Town (Certificate of title folio identifier …) (“the C Town property”). The legal title to that property is held in the name of the husband.
The parties during the marriage reached an agreement with the wife’s mother and father for construction of a home on a five acre parcel, at that time not subdivided from the remainder of the property.
The second and third applicants, in their “Points of Claim”, set out:
(a)There was an agreement;
(b)They acted in reliance on its terms;
(c)It provided for subdivision;
(d)It provided for transfer of title of the subdivided five acres;
(e)The second and third applicants were to pay $200,000 to acquire the land;
(f)The husband and wife were to pay for subdivision costs;
(g)The house was constructed;
(h)The land on which the house was constructed remains in the name of the husband;
(i)The second and third applicants paid some costs referrable to the subdivision; and
(j)The second and third applicants remain prepared to pay the $200,000 on transfer.
Although not mentioned in the “Points of Claim”, the second and third applicants accept that the $200,000 they were to pay to acquire the interest in the subdivided parcel represented a “family discount” of $300,000, as the parties agreed that the parcel was valued at $500,000 unimproved.
The wife, in her “Points of Claim” document echoes the position taken by her father and agrees that there was a “family discount” of $300,000.
The wife for her part says that her parents spent $528,000 on construction of the residence and towards the application for subdivision.
The husband does not dispute that the wife’s parents paid monies to construct their home at the C Town property nor does he dispute that they made payment towards the costs of the subdivision (although he disputes the quantum).
The gravamen of the dispute is about what was to happen to the five acre block in the event of a sale or the death of both of the wife’s parents. The husband says in his “Defence to Points of Claim” that in those circumstances, the agreement was that the five acres would be transferred back to the husband and the wife’s brother would be paid an amount equal to half the value of the improvements on the five acre block.
The above background captures the scope of the dispute. The resolution of that dispute is a matter for determination at the final hearing.
On 19 July 2021 this matter was expedited owing to the ill health of the wife’s mother. The wife’s mother died in 2021. The wife’s father has been appointed as legal personal representative for the wife.
On 22 July 2022, at the request of the lawyers for the husband, a subpoena issued addressed to Meehans Solicitors seeking documentation in respect of the estate of the wife’s mother and in respect of wills for the wife’s father and the wife (amongst other things). The subpoena terms were as follows:
1. …
2. …
3. In relation to [Mr Hunt] born in 1944, the following:
a. Copies of all documents, correspondence, emails, and file notes regarding the giving or receiving of instructions for the preparation and/or amendment of the will(s) of [Mr Hunt];
b. Copies of the will and any codicils of [Mr Hunt].
4. In relation to [Ms Bowen] born in 1976, the following:
a. Copies of all documents, correspondence, emails, and file notes regarding the giving or receiving of instructions for the preparation and/or amendment of the will(s) of [Ms Bowen];
b. Copies of the will and any codicils of [Ms Bowen].
5. …
(As per the original)
On 1 August 2022 a notice of objection was filed objecting to production of the documents sought at [2], [3], [4] and [5] on the basis that it was asserted there was no legitimate forensic purpose, the documents sought in [2] were subject to legal professional privilege and the documents in [3] – [5] were not relevant.
Written submissions were filed in support of the issue of the subpoena and in support of the objection and, the parties narrowed the issues in respect of which this Court, being the Federal Circuit and Family Court of Australia (Division 1) (“the Court”), was required to make a ruling.
The husband was seeking only documents set out at [3(b)] and [4(b)] of the subpoena being the wills of the wife’s father and the wife.
The law
A party will be required to comply with the terms of a subpoena unless the subpoena (or part thereof) is withdrawn or set aside.
A subpoena may be set aside if the documents are not relevant to the issue to be determined in the litigation: Hatton v Attorney-General (2000) FLC 93-038, Epstein & Epstein (1993) FLC 92-384, McLaren Holdings v McLaren (2000) FLC 93-030, White and Tulloch v White (1995) FLC 92-640.
Consideration
As a consequence of the narrowing of the issues the focus of the dispute is on whether or not the wife’s fathers’ will and any documents, correspondence, emails, file notes in respect of preparation or amendment of the will should be produced. In support of the relevance of these documents to the dispute before the Court, a submission was made on behalf of the husband that “the construction of the will is likely to reveal a truer indication of [the second applicant’s] view of the “agreement” struck” between the second applicant and, the husband and the wife.
The wife says in her affidavit of 13 May 2022 at [305]:
The verbal agreement that was subsequently reached over about 6 months between [the husband] and I and Mum and Dad was that Mum and Dad would Pay [the husband] and I $200,000 for the land and then Mum and Dad would build their house on it.
…
At the time of the discussions, [the husband] and I thought that the five acre lot was worth $500,000.
…
…if by chance they are both living on the property and pass away there, then [the husband] and I would receive the $300,000 “family discount” back before the remaining amount is split evenly 50/50 between my brother [Mr E] and myself.
…
…once completed and the title deeds received that somehow it would be worded into a new and changed will so that if by chance the discount could come back to us it would, but if not then Mum and Dad would not be bound to paying it back.
The husband’s argument is that the will of the wife’s father may shed light on whether or not the wife’s father, through the will, understood his estate would include the whole value of the subdivided parcel plus improvements less $300,000 or, just the value of the improvements as the husband contends.
I accept the submissions made on behalf of the second applicant that the will is not relevant insofar as it may detail a future inheritance of the wife. If that were the sole basis for issue of the subpoena I would accept the submission that the documents are not relevant.
Given that one of the considerations of the wife’s mother and father was how their estate might be divided as a consequence of the improvement of the C Town land then I cannot accept the submission on behalf of the second and third applicants that the document is not relevant (or at least theoretically relevant).
The parties are all but ready to have the property matter heard on a final basis. The hearing dates have been allocated. The affidavit material is filed and the parties have engaged in a pleading exercise. The document sought has potential relevance against the background set out in those documents and so I will order production (in the event the document has not yet been produced) and inspection of the will of Mr Hunt.
The subpoena also seeks the wife’s will:
4. In relation to [Ms Bowen] born [in] 1976, the following:
a. …
b. Copies of the will and any codicils of [Ms Bowen].
The husband asserts a copy of the wife’s will would be relevant for the same reason he seeks the wife’s father’s will, namely if it deals with the agreement as between the parties concerning the C Town property.
I cannot see that the wife’s current will, if she has one, would be relevant to resolution of the issue which has arisen as between the husband and the second and third applicants and it cannot be relevant as between the husband and the wife.
Accordingly, [4(b)] of the subpoena addressed to Meehans Solicitors will be set aside.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 9 September 2022
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