BREBNER & SHARDLOW

[2019] FamCA 800

FAMILY COURT OF AUSTRALIA

BREBNER & SHARDLOW [2019] FamCA 800

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a registrar’s decision – Subpoenas – Where the registrar rejected two subpoenas for filing on the basis that they appeared to be an abuse of process, frivolous, scandalous or vexatious – Consideration of whether the production of documents serves a legitimate forensic purpose and whether “it is on the cards” that the documents sought would have relevance to the issues in the case – Where the Court is satisfied that a subpoena proposed to be addressed to the wife’s solicitor would serve no legitimate forensic purpose and would amount to a “fishing expedition” – Where it is on the cards that a document produced in response to a proposed subpoena addressed to the husband’s father could have some relevance to issues in the case – Application for review granted in part.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) r 24.10

Alister v The Queen (1984) 154 CLR 404
Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Hatton & Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000)
FLC 93-038; 26 Fam LR 570
Hennessy v Wright (No. 2) (1890) 24 QBD 445
Hunt v Russell and De Pinto (1995) 63 SASR 402
Hunter & Child Support Registrar [2017] FamCAFC 259
Kelton & Brady and Anor [2017] FamCAFC 186; (2017) FLC 93-799
R v Saleam [1999] NSWCCA 86
Trade Practices Commission v Arnotts Ltd and Ors (No. 2) (1989) 88 ALR 90

APPLICANT: Ms Brebner

RESPONDENT: Mr Shardlow

FILE NUMBER: SYC 1856 of 2017

DATE DELIVERED: 31 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney in Chambers

JUDGMENT OF: Loughnan J

Orders

1. Insofar as it seeks to review a decision of a registrar to refuse permission for the issue a Subpoena to Produce addressed to Mr A Shardlow, the husband’s Application in a Case filed on 10 September 2019 is granted and the subpoena may issue.

2. Otherwise the Application in a Case is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brebner & Shardlow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1856 of 2017

Ms Brebner

Applicant

And

Mr Shardlow

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is the application of Mr Shardlow (“the husband”) to review the decision of a registrar to refuse permission for the issue of two subpoenas…