Faden and Faden (No 3)

In *Faden and Faden (No 3)*, Le Poer Trench J of the Family Court of Australia considered an application concerning the issuance and returnability of subpoenas in ongoing proceedings. The dispute involved the wife's submissions regarding the Court's power to issue subpoenas for evidence prior to the final hearing, particularly in relation to the valuation of minority interests in various entities.

The primary legal issue before the Court was whether subpoenas to give evidence could be made returnable on a date prior to the final hearing of the proceedings, and whether the Court had the discretion to permit such early return dates as part of its case management powers. The wife argued that the Family Law Rules 2004 did not expressly prohibit subpoenas to give evidence from being listed before the final hearing, drawing parallels with rules in other jurisdictions that allowed for subpoenas to be returnable on dates permitted by the Court. She contended that this approach was consistent with the Court's broad discretion under rule 16.4 for managing trials and was particularly relevant for obtaining information necessary for valuations required before the conclusion of proceedings.

Le Poer Trench J reasoned that while subpoenas to give evidence are often listed at the final hearing, there is no absolute legal restriction preventing them from being returnable earlier, especially when such evidence is required for the preparation of the proceedings, such as for expert valuations. The Court noted that subpoenas to produce documents are commonly made returnable before the final hearing to facilitate preparation. Applying this rationale, the Court found that it had the power, under its case management discretion, to permit subpoenas to give evidence to be returnable on a date prior to the final hearing, particularly where it served the purpose of obtaining necessary information for the valuation of the parties' interests.

Consequently, the Court made several orders. It struck out the subpoenas issued to Mr. T and Mr. U to the extent that they required the production of documents, indicating that these particular aspects were not properly before the Court. Pending further order, neither party was permitted to issue any subpoena without the approval of Justice Le Poer Trench, and leave was granted to each party to apply to the Justice in chambers for leave to issue subpoenas. The matter was to be relisted for further directions concerning the preparation of the single expert's valuation of the relevant entities.