CHLOROS & CHLOROS

[2021] FamCA 650

FAMILY COURT OF AUSTRALIA

CHLOROS & CHLOROS [2021] FamCA 650

FAMILY LAW – PROPERTY – Subpoena – where the husband sought leave to issue a subpoena – where the subpoenaed documents related to parenting matters – where the proceedings related only to property

FAMILY LAW – COSTS – where the principle that the parties bear their own costs of the proceedings does not apply – where the husband’s application was wholly unsuccessful – where the husband’s conduct prolonged the litigation

Family Law Act 2017 (Cth)
Family Law Rules 2004 (Cth), Schedule 3

APPLICANT: MS CHLOROS

RESPONDENT: MR CHLOROS

SECOND & THIRD RESPONDENTS: MR B CHLOROS & MS C CHLOROS

FOURTH RESPONDENT: D PTY LTD

FILE NUMBER: MLC 6475 of 2016

DATE DELIVERED: 11 June 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 11 June 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Le Brun & Associates

THE RESPONDENT: In Person

COUNSEL FOR THE 2^ND, 3^RD AND 4^TH RESPONDENTS: Ms Carmelli

SOLICITOR FOR THE 2^ND, 3^RD AND 4^TH RESPONDENTS: MCK Legal

Orders

1. The husband’s application to issue subpoena directed to the wife to produce documents be dismissed.

2. The husband pay the wife’s costs of this day fixed in the sum of $1510, such costs to be paid within 30 days. 

3. The second to fourth respondents’ costs of this day be reserved. 

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chloros & Chloros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6475 of 2016

MS CHLOROS

Applicant

And

MR CHLOROS

Respondent

And

MR B CHLOROS & MS C CHLOROS

Second & Third Respondents

And

D PTY LTD

Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the court today as a result of a referral by the Registrar of the application of the husband that a subpoena to produce documents be issued. That subpoena is directed to the wife at her address and seeks production of 10 categories of document. 

2. Item 1 of the subpoena requires the wife to produce of a copy of the subpoena.  Items 2 to 9 inclusive of the subpoena seek production of documents regarding the medical care of the parties’ daughter, X.  Item 2 seeks documents relating to X’s suicidality and to medical and mental health consultations, interventions, treatments, diagnoses, communications and appointments.  Item 3 concerns documents relating to a sexual assault of that child, again, seeking production of medical and mental health consultation notes and records.  Item 4 relates to documents with respect to treatment and diagnosis of X’s depression.  Item 5 refers to documents relating to X’s experience of bullying, including medical and mental health consultations, school documentation and the like.  Item 6 relates to X’s treatment for body dysmorphia and an eating disorder.   Item 8 relates to extra-curricular activities attended by X and her siblings since 1 October 2020.  Item 9 relates to medical and mental health consultations of the children of the marriage since 3 April 2019. 

3. Item 10 is a separate item and it appears to be the only item that relates to financial matters between the parties.  In that item, the husband seeks documents relating to a deposit of funds into an ANZ account on 24 July 2020. 

4. Today the husband represents himself.  The wife is represented by counsel.  The second to fourth respondents are represented by their solicitor. 

5. The application by the husband to seek the issue of the subpoena is opposed by the wife. 

6. At the outset, I enquired of the husband as to how the documents sought by him in the subpoena relate to the proceedings listed for final hearing before this Court. That final hearing is listed to commence on 6 December 2020 for a period of five days. The proceedings relate to applications made, particularly by the wife, pursuant to section 79 of the Family Law Act1975 (Cth) (“the Act”). She seeks an adjustment of property. The proceedings are related to financial issues only.

7. At the outset I indicated to the husband that it appeared that items 2 to 9 inclusive of the subpoena sought to be issued relate to parenting issues.  The husband conceded that those items do relate to parenting issues.

8. The husband submitted that he sought that documentation in order to understand how significant or otherwise the child, X’s, issues are.  It is the husband’s position that he needs further detail, he says, “so as to ascertain whether or not the wife’s claims for support are appropriate or not”.  He indicated that it is his view that the severity of the child’s medical issues may impact upon the ultimate division of property and in particular, the division of superannuation interests. 

9. Counsel for the wife confirmed his client’s opposition to the issue of the subpoena.  He noted in his submissions that this is the 43^rd occasion upon which this matter has been before the Court.  It was submitted on behalf of the wife that the subpoena as drafted is little more than a fishing expedition 

10. It was noted by counsel for the wife that the father has a pending appeal before the Administrative Appeals Tribunal in relation to its decision with respect to child support.  It is the view of the wife that this subpoena process is being utilised by the husband in order to bolster his position with respect to those matters. 

11. Further, it was submitted on behalf of the wife that the documents sought by the husband in item 10 are documents already produced and that they have been further provided by the wife in the trial affidavit filed on her behalf on 20 May 2021.  Counsel for the wife also indicated that the documents sought had been produced earlier in 2020. 

12. Having considered the submissions of both the husband and counsel for the wife, I am satisfied that the documents sought to be produced by the husband are not relevant to the issues before this court at the final hearing listed in December this year. Those proceedings relate to the alteration of property interests pursuant to section 79 of the Act. The information and documents sought by the husband in the proposed subpoena relate to parenting matters, in particular the children’s health and welfare.

13. In his submissions, the husband conceded that the proposed subpoena relates to parenting matters.  He also conceded that, in essence, what he was seeking to do was obtain information in relation to those issues.  In circumstances where those issues are not live issues before this Court, there can be no proper basis for the subpoena as drafted to be issued by the Court. 

14. Further, I accept the submission of counsel for the wife in relation to documents already produced with respect to the ANZ account.  Ultimately, if the husband is dissatisfied with the documents so produced by the wife through her trial affidavit and through her lawyers, it is open to him to seek production of documents from the relevant financial agency.  That is not an approach that is invited, but it is an approach open to the husband if he forms the view that the wife has not made complete disclosure in relation to those matters.  

15. Accordingly, I will dismiss the husband’s application to seek leave to issue the subpoena as drafted.

16. An application is made on behalf of the wife seeking an order that the husband pay her costs of and incidental to his application. The amount sought on her behalf is the sum of $1,510. That sum is calculated having regard to Schedule 3 of the Family Law Rules 2004 (Cth) (“The Rules”), in particular, Item 203, which allows for the attendance of counsel at a hearing of less than three hours. The amount allowed for in relation to such attendance is $1210.

17. Further amounts are sought taking into account the expense associated with the lawyer’s work in preparation for the hearing, in the sum of $300, which includes the briefing of counsel and collating of documents necessary for counsel. 

18. It is submitted on behalf of the wife that the husband has been wholly unsuccessful in his application and that this proceeding is a further example of the husband seeking to abuse court processes.  It was reiterated by counsel for the wife that this is the 43^rd occasion upon which the matter has come before the Court. 

19. The application is opposed by the husband.  It is his position that whilst he concedes he has not been successful in his application, there was still a proper basis for making that application before the Court.  He submits that his application was made in good faith.  He further refers to his financial circumstances; he is an undischarged bankrupt and as such any costs order would have a significant impact on his finances. 

20. The position of the second, third and fourth respondents is to seek that their costs of this day be reserved. 

21. The question of costs is one considered at section 117 of the Act. The general rule is that each party to proceedings under the Act should bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may, subject to the provisions of subsections (2A),(4), (4A), and (5) and the rules of the Court, make such order as to costs and security for costs as the Court considers just.

22. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs. As I have already noted, the wife places principal reliance on subsection (e), whether any party to the proceeding has been wholly unsuccessful. Further, the wife relies generally on the manner in which the husband has conducted the proceedings to date. Those features are identified at subsection (c), which provides that the court shall have regard to:-

    the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.

23. Having regard to the form of the subpoena which seeks material not relevant to the issues before the Court, I am satisfied that the husband has been wholly unsuccessful in his application. 

24. It is clear on its face that the subpoena principally relates to parenting matters.  This was conceded by the husband.  It is also clear that there are no current parenting proceedings on foot in this Court.  Having regard to those matters I am satisfied that the husband has been wholly unsuccessful in his application. 

25. Having regard to all of those matters I am satisfied that it is appropriate that there be an order for costs as sought. The amounts sought are those set out in Schedule 3 of the Family Law Rules and I am satisfied that the amount sought, being the sum of $1510, is an appropriate amount.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 June 2021.

Associate: 

Date:  13 October 2021