Fabell & Fleetwood - [2021] FedCFamC1F 207

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fabell & Fleetwood [2021] FedCFamC1F 207

File number(s): SYC 354 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 10 November 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of Senior Registrar’s decision to strike out subpoenas – Application for review dismissed – Costs reserved pending written submissions.

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) Pt 15.3

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Cases cited:
Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 6) (2005) 92 SASR 419; [2005] SASC 929

Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648; [2015] FamCAFC 64

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Ryder & Lee [2009] FamCA 531

X Pty Ltd and Ors & Merhi [2015] FamCA 622

Division: Division 1 First Instance

Number of paragraphs: 14

Date of last submission/s: 29 September 2021

Date of hearing: Heard on the papers

Place: Sydney

Solicitor for the Applicant: Barkus Doolan

Solicitor for the Respondent: York Law Family Law Specialists
ORDERS

SYC 354 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FLEETWOOD

Applicant

AND:
MS FABELL

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

10 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed by the Applicant on 23 August 2021 seeking a review of the decision of Senior Registrar McNamara is dismissed.
2.Noting that the Respondent seeks an order for costs, such application is to proceed by way of written submissions and be otherwise determined in chambers.
3.Within 14 days of the date of these orders, the Respondent file short written submissions as to costs not exceeding 500 words, together with any further evidence in support.
4.Within 14 days thereafter, the Applicant file any submissions in response not exceeding 500 words, together with any further evidence in support.
5.Thereafter, judgment is reserved.

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 Fabell & Fleetwood has been approved pursuant to s 121(9)(g) of the Family Law Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fabell & Fleetwood

Details

AGLC: Fabell & Fleetwood [2021] FedCFamC1F 207
Case: [2021] FedCFamC1F 207
Decision Date: 10 November 2021

CaseChat Overview and Summary

In the case of Fabell & Fleetwood, Mr Fleetwood sought a review of the Senior Registrar’s decision to strike out two subpoenas that he had issued in the context of parenting proceedings. The Respondent, Ms Fabell, objected to the subpoenas on the basis that they amounted to a fishing expedition, were an abuse of process, and lacked relevance. The substantive proceedings involve high-conflict parenting issues, including resist/refuse dynamics and the Respondent’s willingness to support the children’s relationship with the Applicant.

The primary legal issue before the court was whether the Senior Registrar’s decision to strike out the subpoenas was correct. The court considered whether the subpoenas were relevant to the issues in the proceedings, whether they were oppressive to comply with, whether they were issued for an improper purpose, or whether they amounted to a fishing expedition. The court had regard to the Full Court’s decision in Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038, which sets out the test for relevance and examples of where a Court may determine it is proper to set aside a subpoena.

The court found that the Senior Registrar’s decision to strike out the subpoenas was correct. The court held that the subpoenas were irrelevant to the issues in the proceedings, and that they amounted to a fishing expedition. The court also found that the subpoenas were oppressive to comply with, and that they were issued for an improper purpose. The court dismissed the Applicant’s application for review of the Senior Registrar’s decision and reserved the question of costs pending written submissions from both parties.

In conclusion, the court dismissed Mr Fleetwood's application for review of the Senior Registrar’s decision to strike out the subpoenas. The court found that the subpoenas were irrelevant, oppressive, and issued for an improper purpose. The court reserved the question of costs pending written submissions from both parties and ordered the Respondent to file short written submissions as to costs not exceeding 500 words, together with any further evidence in support. The Applicant was ordered to file any submissions in response not exceeding 500 words, together with any further evidence in support within 14 days thereafter. Judgment was reserved.

Orders

Orders of the court

SYC 354 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FLEETWOOD

Applicant

AND:

MS FABELL

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

10 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The Application in a Case filed by the Applicant on 23 August 2021 seeking a review of the decision of Senior Registrar McNamara is dismissed.

2. Noting that the Respondent seeks an order for costs, such application is to proceed by way of written submissions and be otherwise determined in chambers.

3. Within 14 days of the date of these orders, the Respondent file short written submissions as to costs not exceeding 500 words, together with any further evidence in support.

4. Within 14 days thereafter, the Applicant file any submissions in response not exceeding 500 words, together with any further evidence in support.

5. Thereafter, judgment is reserved.

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.

Background

Background to the litigation

Curiously, the orders of the learned Senior Registrar are expressed to have been made by consent, but I doubt very much that that was the case. In any event, the learned Senior Registrar struck out two subpoenas: the first being a subpoena to the New South Wales Police Force (“NSW Police”) and the second being a subpoena to K Company”). The Respondent’s objections to the application include submissions that the subpoenas amount to a fishing expedition, are an abuse of process, and lack apparent relevance.BACKGROUND The substantive proceedings are parenting proceedings. There are two children, one who is nearly 14 years old and the other who is 12, both of whom currently live with the Respondent. One of the children spends time regularly with the Applicant and the other on an apparent ad hoc basis. In the context of what seems to be a high conflict parenting dispute, the underlying issues present as including resist/refuse dynamics involving the children and the Respondent’s willingness to support the children’s relationship with the Applicant. The case is not yet in a judge’s docket, but is well on its way to being placed in one. The material before the Court is referred to in the written submissions filed by each party, set out below. The Applicant relied on the following documents in support of his case:(a)Subpoena to NSW Police dated 1 July 2021;(b)Subpoena to K Company dated 1 July 2021;(c)A tender bundle of four letters between York Law and Barkus Doolan between 30 June 2021 and 18 August 2021; (d)The single expert report of Mr J dated 13 October 2020; and(e)His written submissions filed 14 September 2021. The Respondent relied on the following documents in support of her case:(a)Notice of Objection to Subpoena to NSW Police filed 9 July 2021;(b)Notice of Objection to Subpoena to K Company filed 9 July 2021;(c)Response to Application in a Proceeding filed 29 September 2021;(d)Affidavit of the Respondent filed 29 September 2021 and corresponding annexures;(e)Orders made by the learned Senior Registrar on 18 August 2021;(f)Her written submissions filed 29 September 2021(g)Previously filed documents:(i)Applicant’s Application in a Case filed 25 June 2020;(ii)Applicant’s Amended Application in a Case filed 7 July 2020; and(iii)Consent orders made on 13 August 2020.THE APPLICABLE LAW I have had regard to the helpful written submissions prepared in this case. The law in relation to subpoenas is relatively well-understood and well-known. The primary test is one of relevance – that is, the relevance of the documents to the issues before the Court. The Full Court in Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038 considered the test of relevance and set out examples of where a Court may determine where it is proper to set aside a subpoena. These include circumstances where the subpoena is for an improper purpose, where it might be oppressive to comply with the subpoena, where a party embarks upon a fishing expedition and where the subpoena lacks relevance to the proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 354 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	10 November 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of Senior Registrar’s decision to strike out subpoenas – Application for review dismissed – Costs reserved pending written submissions.
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Pt 15.3 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited:	Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 6) (2005) 92 SASR 419; [2005] SASC 929 Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648; [2015] FamCAFC 64 Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Ryder & Lee [2009] FamCA 531 X Pty Ltd and Ors & Merhi [2015] FamCA 622
Division:	Division 1 First Instance
Number of paragraphs:	14
Date of last submission/s:	29 September 2021
Date of hearing:	Heard on the papers
Place:	Sydney
Solicitor for the Applicant:	Barkus Doolan
Solicitor for the Respondent:	York Law Family Law Specialists

SYC 354 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FLEETWOOD Applicant
AND:	MS FABELL Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	10 NOVEMBER 2021