Darvish & Karo

[2024] FedCFamC2F 1020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Darvish & Karo [2024] FedCFamC2F 1020

File number(s):

SYC 9035 of 2023

Judgment of:

JUDGE STREET

Date of judgment:

26 July 2024

Catchwords:

FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Division:

Division 2 Family Law

Number of paragraphs:

3

Date of hearing:

26 July 2024

Place:

Sydney

Counsel for the Applicant:

Ms S Mahony

Solicitor for the Applicant:

I & J Law

Respondent:

Appeared via video and audio-link

ORDERS

SYC 9035 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DARVISH

Applicant

AND:

MR KARO

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	26 JULY 2024

THE COURT ORDERS THAT:

1.Pursuant to rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court dispenses with the need for compliance by the applicant with the notice to produced dated 24 June 2024.

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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These proceedings were commenced for divorce on 29 November 2023, and on 31 May 2024, a judge of this Court fixed the matter for a final hearing in respect of the divorce application by the applicant wife (“the wife”). It is apparent that the respondent husband (“the husband”) has been overseas since early 2022. The wife alleges that separation occurred on 23 April 2022.  The husband has filed a number of affidavits relating to the application for divorce and also in support of an application challenging jurisdiction and for a stay on the grounds of inconvenient forum, the husband having commenced three proceedings in Courts in Country B.

2. On 18 July 2024, the husband an Application in a Proceeding which sought an adjournment of these proceedings, in substance, based on the wife’s failure to comply with a Notice to Produce dated 24 June 2024. The Notice to Produce required the following:

   (1)A copy of all contracts signed by Ms Darvish for Ms C at the Country B Embassy, such as:

   (a)All Power of Attorney’s (PoA’s)

   (b)‘Fee Agreement’ if any,

   (c)‘Removing Lawyer from Agency’ if any.

   (2)A copy of the bank’s Internation Money Transfer(s) (IMT’s) (e.g., as a selective statement from the bank or copy of remittance) made by Ms Darvish to Ms C prior to 17 April 2024.

   (3)A copy of the request to the FCFCOA Registry Manager or Registrar to arrange for an overseas service (non-convention country) of the application of divorce (SYC9035/2023) as per subrule 3a of Rule 2.49 of the Family Court Rules 2021.

   (4)A copy of all emails between Ms Darvish and Barkus Doolan (Lawyers, Sydney) prior to 7 May 2022 that mention me or our daughter X (born 2016).

   (5)A copy of the ‘Medicare claims history’ for our daughter X (born 2016) generated as a PDF in the Medicare app under Ms Darvish Medicare account for the last 3-year period to date.

   (6)A copy of all written/emailed communication to date between Ms Darvish and Ms D (Child psychotherapist of Suburb E) pertaining to the health and welfare of our daughter X (born 2016), including but not limited to assessment report(s), clinical notes, prescriptions, etc.

   (7)A copy of all emails to date between X and F School pertaining to X (born 2016) – i.e., solely direct communication and replies between the two parties, not newsletters/announcements.

3. The Court raised with the husband, why the Court should not dispense with the need for compliance with the notice to produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The husband sought to identify reasons why the documents he was asking for might be relevant, referable to contentions as to the veracity of the wife's evidence. None of the matters in these seven paragraphs identify any relevant evidence to the issues before the Court in respect of either inappropriate forum, jurisdiction or divorce. The Court is not satisfied that the notice to produce seeks relevant documents and is not satisfied there is a legitimate forensic purpose for the categories of documents identified. Further, requiring production will almost inevitably delay these proceedings. The Court has taken into account the principles in s 43, s 68B and s 69ZN of the Family Law Act 1975 (Cth) and the overarching purpose in s 95 of the Act. The Court finds that the notice to produce is vexatious and further that compliance should be dispensed with in the interests of the administration of justice. In the circumstances, the Court dispenses with the need for compliance with the Notice to Produce.

I certify that the preceding three (3) numbered paragraphs are a true copy of the oral published Reasons for Judgment of Judge Street.

Associate:

Dated:       7 August 2024