Coppens & Fischer
[2024] FedCFamC1F 243
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Coppens & Fischer [2024] FedCFamC1F 243
File number: PAC 2561 of 2021 Judgment of: CAMPTON J Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Notice of Objection – Where the wife issued subpoena to two venues for the provision of information as to the husband’s gambling activity – Where the husband filed Notices of Objection to those subpoena on the basis that this activity is subsequent to separation and has no relevance to the proceedings – Where it is not established that the documents sought are of no relevance – Notices of Objection dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 6.5 Cases cited: Alister v R (1984) 154 CLR 404; [1984] HCA 85
Martin & Martin and Anor (No. 2) [2014] FamCA 232
White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127
Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 12 April 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Barkus Doolan Winning ORDERS
PAC 2561 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR COPPENS
Applicant
AND: MS FISCHER
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The Notices of Objection filed by the father on 1 March 2024 to the subpoena issued at the request of the mother for production of documents on 1 March 2024 directed to B Venue and C Venue are dismissed.
2.I grant the parties liberty to inspect documents produced by B Venue and C Venue.
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 Coppens & Fischer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determined Notices of Objection filed by the Mr Coppens (“the father”) on 1 March 2024 to two subpoena issued at the request of Ms Fischer (“the mother”), directed to C Venue, and B Venue, on 1 March 2024. The father’s Notices of Objection were also filed on 1 March 2024.
The substantive proceedings are as to the adjustment of property and as to parenting. A significant issue in the financial proceedings, and an inferential issue in the parenting proceedings is, on the mother’s case, extensive gambling undertaken by the father.
The schedule to the subpoena required the production of documents recording gambling activity, payments made by the father or received by him associated with those activities, membership details, and particulars as to entry and exit times from each of the specified venues for the period 1 January 2021 to the date of issue of the subpoena.
The father expresses concern for his personal safety and implies that he has been surveyed by the mother or by someone on her behalf as to places he has attended subsequent to the separation of the parties. He further contends that what he does with his “private life” after separation has no relevance to the proceedings.
CONSIDERATION
A subpoena is an ex parte order of the court requiring the production of documents from a stranger to the proceedings. Part 6.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) regulates the issue of a subpoena to produce documents. There is little dispute that the father has an interest in the fact of the forensic process by way of issue of the subpoena at the request of the mother, and the production of the documents sought in the schedules to the subpoena.
The father on objection seeks the striking out of each subpoena. The mother seeks the dismissal of each notice of objection.
Provided subpoena have a legitimate forensic purpose, they will not be set aside. A legitimate forensic purpose has been held to include “a sufficient apparent connection to justify the documents sought on production or inspection” (see White & Tulloch & White (1995) FLC 92-640 at 708). It has further been determined that providing it is “on the cards” the documents sought would bear upon and have some relevance to the substantive proceedings, the subpoena process ought to be completed (Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28], referring to Alister v R (1984) 154 CLR 404).
Striking out of an objection to a subpoena is, in effect, a summary determination as to the forensic value of the material sought to be produced. Hence, a fundamental principle in taking an objection as to the absence of apparent relevance to the documents sought, ought to be a high threshold to be achieved on that summary basis.
In the circumstances and for the above reasons, I am satisfied that the documents sought by way of the schedule to each subpoena have apparent relevance to the proceedings. In those circumstances, the Notices of Objection to the subpoena will be struck out.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 April 2024
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