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 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from the transcript)

ALTOBELLI J:

1. In this matter I provide the following oral reasons for judgment. As articulated in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the overarching objective of litigation under the Family Law Act 1975 (Cth) is for it to be made quick, inexpensive and efficient. To have delivered written reasons would not have achieved the object of the legislation, given the delays that would have been involved. The Application in a Case (“the application”) before me was filed by Mr Fleetwood (“the Applicant”) on 23 August 2021 and seeks a review of a decision made by a Senior Registrar of the Family Court of Australia (as it was then known) on 18 August 2021. The Respondent to the application is Ms Fabell (“the Respondent”).

2. 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

3. 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.

4. The material before the Court is referred to in the written submissions filed by each party, set out below.

5. 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.

6. 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

7. 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.

8. In X Pty Ltd and Ors & Merhi [2015] FamCA 622, the Court considered an application seeking a review of orders made by a Registrar dismissing objections to subpoenas issued. The applicants were 12 companies that had been served with subpoenas, companies in which the husband had an interest. Justice McClelland (as he then was) found at [43] that the subpoenas were inappropriate because:

   Essentially, they are speculative in the sense that they are “a train of inquiry” that might assist the wife’s case rather than it being “on the cards” that they will result in the production of documents that will be relevant to the issues in the case.

9. To that extent, his Honour found that the subpoenas to those companies amounted to fishing and should be set aside. His Honour gave an overview of the law referring to the power of the Court to issue a subpoena set out in what was then Pt 15.3 of the Family Law Rules 2004 (Cth) and the power to set aside a subpoena so issued. The Full Court in Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648 applied the principles enunciated in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 and in Hatton v Attorney-General of Commonwealth of Australia & Ors and found that a subpoena must only be used for a legitimate forensic purpose.  A subpoena that does not have a legitimate forensic purpose is an abuse of process and must be set aside.

10. The onus in establishing relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.  In deciding that a subpoena to a third party should be set aside in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from a decision of Gray J in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 6) (2005) 92 SASR 419, where his Honour said at [37]:

    It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.

11. In summary, it is not enough for a party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute.  The party supporting the subpoena must demonstrate that the documents sought are of real relevance to the issues in this case.  There must be more than an outside chance that something useful might turn up.

12. Turning now to the specific subpoenas in question, the subpoena to NSW Police requires production of documents that conceivably cover a period of 56 years (being the age of the oldest person referred to therein).  Putting aside issues about purpose and relevance, it is palpably and obviously oppressive in its scope.  It should undoubtedly be struck out.

13. The subpoena to K Company does not suffer from this problem but suffers from other unavoidable issues.  Even if the Respondent had not made the admission that she did, that is, that she did make the report to the police, the line of inquiry is so tenuous as to not be proportionate to the issues in this case.  The learned Senior Registrar was entirely correct to make the order that she did.  I would have done exactly the same.  The application for review is dismissed.

14. The Respondent seeks indemnity costs.  I have not had the benefit of submissions in this regard. I direct that such application proceed by way of written submissions and be otherwise determined in chambers.  I direct that the applicant for costs file short written submissions not exceeding 500 words within 14 days together with any further evidence in support.  I direct that any response to the said submissions likewise be filed within a further 14 days not exceeding 500 words, and likewise any other evidence be filed in that timeframe.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

Associate:

Dated:       10 November 2021