Field and Kingston (No 3)
[2019] FamCA 299
•13 May 2019
FAMILY COURT OF AUSTRALIA
| FIELD & KINGSTON (NO. 3) | [2019] FamCA 299 |
| FAMILY LAW – PROPERTY – Interim property – where trial directions have been made – where there are outstanding interim issues as to financial disclosure – where the husband seeks an order that the wife produce documents relating to her Centrelink payments – where the husband seeks orders for a warrant for the arrest of two people because he alleges they have failed to comply with a subpoena – were the orders sought and not made in the husband’s Application in a Case are dismissed. |
| Evidence Act 1995 (Cth) s 128 Social Security (Administration) Act1999 (Cth) s 207 |
| Field & Kingston [2017] FamCA 1071 Field & Kingston [2017] FamCA 208 Field & Kingston [2019] FamCA 14 |
| APPLICANT: | Ms Field |
| RESPONDENT: | Mr Kingston |
| FILE NUMBER: | PAC | 2095 | of | 2014 |
| DATE DELIVERED: | 13 May 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6 May 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
Orders 1, 3 and 4 of the husband’s Application in a Case filed 18 April 2019 are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Kingston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC2095/2014
| Ms Field |
Applicant
And
| Mr Kingston |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties have been involved in a dispute for a number of years in relation to a settlement of their property following the breakdown of their 12 year marriage.
The proceedings have been on foot for four years but the final hearing has only recently been fixed to take place on 14 – 18 October 2019 before another judge in this registry. There have been numerous applications to this court to date and one appeal concerning an interlocutory matter.
Notwithstanding that trial directions have been made and the proceedings are being prepared for final hearing, the parties continue to make applications for further orders in relation to various matters including matters relating to preparation for final hearing.
On 6 May 2019 in the course of a duty list I dealt with an Application in the Case filed by each of the parties who sought various orders in relation to a range of matters including the sale of the only significant asset of the parties, an application that warrants issue for the arrest of various people for alleged non-compliance with subpoena and the appointment of an adversarial expert.
It was not possible in the course of a busy duty list to allocate sufficient time to determine all these matters, and some of them such as whether leave be granted to rely on affidavits filed other than in accordance with trial directions were in my view matters for the trial judge. Accordingly, the applications for some orders were adjourned to be heard by the trial judge at a convenient and appropriate time prior to the commencement of the final hearing.
Orders sought by the husband for the arrest of two people for alleged non-compliance with subpoena were dismissed and I indicated that I would include my reasons for dismissal in a judgment to be delivered in due course. This judgment deals in part with the reasons for the dismissal of the application for those orders.
Further, there was an application for an order that appeared to have some urgency and which I anticipated, erroneously as it turned out, may have been capable of easy resolution. That is the second matter with which this judgment is concerned.
Background
In order to place these Reasons in context it is necessary to set out some background.
On 7 April 2017 I delivered a judgment[1] in relation to an application by the wife for a certificate under section 128 of the Evidence Act 1995 (Cth). That judgment which sets out the relevant history of the proceedings at paragraphs [3] – [14], and which was repeated in the Reasons for Judgment[2] in relation to another application by the wife is as follows:
[1]Field & Kingston [2017] FamCA 208
[2]Field & Kingston [2017] FamCA 1071
The husband, who is 49, and the wife, who is 42, were married in 2002 and have three children who primarily live with the husband in the former matrimonial home.
The parties separated on a final basis in January 2011 and were divorced in July 2014.
The wife commenced property settlement proceedings by Initiating Application filed 4 May 2015. The matter has progressed very little since the initiation of proceedings.
It appears that the matrimonial property broadly consists of the former matrimonial home in Suburb B, a business owned by the husband and a business owned by the wife.
During the marriage the husband ran his own business. In 2008 the husband established a business in which he asserts the wife was not involved.
The wife is the owner and operator of a business which includes among other activities training given by the wife. The business was established by her in 1994 and was run by the wife alone throughout the marriage.
There is no dispute that the former matrimonial home was used by the wife for the purposes of her business from early 2002. However there are factual disputes between the parties as to who paid for various expenses associated with running the business from the matrimonial home.
The wife deposes in her affidavit filed 8 December 2016 that she cannot and does not currently work due to a physical injury and is unable to operate the business from the former matrimonial home due to the conduct of the husband. The wife still operates the business but currently employs a replacement trainer to attend the matrimonial home and conduct the business.
There are significant matters in dispute between the parties regarding financial and non-financial contributions to the relationship.
The husband contends that the wife indulged in an extravagant lifestyle during the marriage and that there are significant discrepancies between the wife’s expenditure and the financial losses of the wife’s business outlined in her business records.
The husband further contends that the wife may have sources of income outside her business that she has not disclosed that allowed her to maintain this high level of expenditure.
In 2015 the parties were ordered to obtain valuation of each of the businesses prior to a conciliation conference being held.
Since the delivery of those Reasons the wife has ceased to operate her business and for some time has received some form of benefit from Centrelink.
As noted in the previous judgments, it has always been the contention of the husband that the wife has sources of income which she has not disclosed and that she has generally failed to fulfil her obligation as to disclosure of financial matters.
In another previous application in 2018 (for which Reasons for Judgment were delivered on 21 January 2019[3]) the husband sought an order granting him leave to uplift documents in the proceedings and provide them to relevant government agencies (Centrelink and the Australian Taxation Office) on the basis that those agencies may be third party creditors who may be detrimentally affected by orders made in these proceedings. The application for that order was dismissed.
[3]Field & Kingston [2019] FamCA 14
In relation to the current application it is also of relevance that since September 2017 the husband has been seeking through his lawyer that the wife make full disclosure in relation to any Centrelink benefit that she has received since 1 July 2010. The husband through correspondence between the lawyers and in this application asserts that the wife is required to disclose Centrelink benefits that she has sought since July 2010 along with copies of correspondence between herself and Centrelink.
The correspondence between the parties’ respective lawyers in relation to disclosure with respect to Centrelink benefits annexed to the husband’s affidavit appears to be incomplete. It appears however that at one stage the husband’s lawyers requested that the wife complete a Centrelink document (“the Centrelink Authority”) authorising the husband’s lawyer to enquire on the wife’s behalf of Centrelink about information in relation to her Centrelink payments.
The wife’s lawyer advised the husband’s lawyer in the letter dated 3 May 2018 that she did not consider it appropriate to ask the wife to complete the Centrelink Authority. In a letter written a few days later, the husband’s lawyer questions the basis upon which the wife considers the request that she completes the Centrelink Authority to be inappropriate, repeats the request to complete the Centrelink Authority, or requests that the wife write to Centrelink and request a range of documents to be provided to the husband’s lawyer in relation to her Centrelink benefit over an almost ten year period.
In further correspondence in March 2019 the husband’s lawyer again asked that the wife’s lawyer “ensure” the wife sign the Centrelink authority and return it within 48 hours and that she also provide information in relation to payments that had been made to the wife’s lawyers from a particular visa debit card.
On 21 March 2019 the proceedings were listed for a compliance check before a Registrar and it was confirmed that the affidavits upon which the parties sought to rely in the final proceedings had been filed. These included affidavits sworn by a previous employee of the wife,(“the wife’s employee”) and a person who had purchased a horse from the wife (“the horse purchaser”).
The husband had in 2016 issued a subpoena to the wife’s employee to produce various records with respect to her employment and income over about a 15 year period and to the horse purchaser seeking that she produce a range of documents in relation to that purchase.
The orders sought
Centrelink documents and bank records
The orders in relation to Centrelink and bank records sought by the husband are in the following terms:
That within 48 hours of the date of the making of these Orders the wife shall provide to the husband’s solicitors the following:
1.1All correspondence between the wife and any government department in relation to Centrelink benefits sought or received by the wife for the period 1 July 2010 to date.
1.2All documents including bank statements and Centrelink statements in relation to all government benefits received by the wife or by any other person on her behalf into any other account for the period 1 June 2010 to the date of this correspondence.
1.3Completed signed copies of the Centrelink authorities copies of which are attached to this Application and marked “A”.
[Attached as Annexure “A” is the Centrelink Authority and another document titled “Authority”.]
1.4Copies of all bank statements and credit card statements referable to Visa debit card … as identified on the bank statement of Ms K, ANZ account number … paid to Matthews Folbigg Lawyers
According to written submissions filed on behalf of the husband he seeks an order compelling the wife to authorise the husband’s lawyers to enquire or act on her behalf in relation to her Centrelink benefit on the basis that such authority is “relevant to her financial circumstances and clearly fall[s] within her obligation of disclosure in these proceedings.”
In further oral submissions, it was reiterated on the husband’s behalf that such information sought in this order and authorisation forms a necessary part of financial disclosure and also relates to the wife’s credit.
It is argued on behalf of the wife that the orders sought by the husband may be seen as an attempt to re-agitate the dismissal of his previous application for leave to provide documents filed in the proceedings to agencies including Centrelink.
It is also submitted on the wife’s behalf that the husband’s attempt to revisit this issue and his conduct in the proceedings is oppressive. Further, it is submitted that the wife’s bank statements which have been provided to the husband clearly indicate the Centrelink payments that have been made to the wife and there has never been a suggestion in the proceedings that the husband be required to share in any Centrelink debt if one exists.
It is argued by the wife that the documents sought to be obtained are not relevant to any matter with which the court will be concerned in the property settlement hearing, and the husband does not identify how the broad class of documents sought to be obtained from Centrelink are relevant to the proceedings.
Although the wife submits that she accepts that the court could make the order sought in relation to the wife’s Centrelink claim it is submitted on her behalf that in the ordinary course such an order would not be made as parties are prohibited from issuing a subpoena to Centrelink pursuant to section 207 of the Social Security (Administration) Act 1999 (Cth).
In seeking that the husband’s order with respect to the Centrelink documents be dismissed it is also argued on behalf of the wife that the court is to promote the main purpose of the Rules when applying them which includes a requirement that the court identify issues that require full investigation.
Discussion
The main purpose of the Rules as set out in r 1.04 of the Family Law Rules 2004 (“the Rules”) (Cth) is to ensure that each case is resolved in a just and timely manner at a cost to the parties and to the court that is reasonable in the circumstances of the case.
To achieve the main purpose pursuant to r 1.07 the court is to apply the Rules in a way which is proportionate to the issues in a case, their complexity and the likely costs of the case, promotes the saving of costs and gives an appropriate share of the courts resources to a case, taking into account the needs of other cases.
As a general observation and a matter which will be given some weight in determining this application in my view these proceedings which are not particularly complex and do not involve a large matrimonial asset pool for distribution have taken an inordinate time to reach final trial and have utilised substantial resources of this court at what can be assumed significant cost to both parties.
I am not of the view that the wife’s receipt of Centrelink benefits is an issue that involves full investigation to the extent contemplated by the husband in these proceedings. The broad nature of the disclosure as to matters relating to the Centrelink benefit which the orders seem to contemplate may not be found at trial to form part of the wife’s disclosure obligations. The suggestion that the making of these orders is relevant to the wife’s credit is a circular argument at this stage as it is not known by the husband what may be revealed if all of the documents he seeks are obtained.
In addition to my view that the payment of the wife’s Centrelink benefit does not justify extensive exploration and may not fall within the ambit of financial disclosure as contended I have more fundamental concerns about the form of order sought by the husband.
Paragraph 19 of these Reasons sets out the terms of the orders sought by the husband. As can be seen in order 1.3 he seeks that the wife be ordered to complete two documents. The first is a proforma Centrelink document, the Centrelink Authority.
The second document which forms part of Exhibit A is in the following terms:
To: Department of Human Services – Centrelink
By Fax: 1300 727 760
By Email: …
I, Ms Field of L Street, Suburb R in the State of New South Wales (DOB 1975), …, hereby irrevocably authorise and direct you to provide to Ms Winning of Barkus Doolan Family Lawyers, …, Sydney NSW 2000:
1.All information and documents requested by her in respect of any application I made to the Department of Human Services – Centrelink in the period from 1 January 2011 to date;
2.All information and documents requested by her in respect of Centrelink payment tax summary information, earnings information for the period from 1 January to date.
Curiously both parties appear to accept that these two documents if completed by the wife as sought would operate as a means by which the husband could gain access to all or any of the wife’s Centrelink records over a length period.
In my view the Centrelink Authority that the husband is seeking that the court compel the wife to sign is not appropriate to the circumstances under consideration and will not operate to cause Centrelink to produce the wife’s Centrelink records as appears to be envisaged. Centrelink “Notes” which form part of the Centrelink Authority form and the Centrelink Authority itself and both are titled “authorising a person or organisation to enquire or act on your behalf.” The accompanying notes and Centrelink Authority document make clear that completion of the Centrelink Authority enables the person who receives a Centrelink payment (“the Centrelink recipient”) to authorise another person to make enquiries on behalf of the Centrelink recipient, correspond with Centrelink on behalf of the recipient or receive payment on behalf of the recipient. It is also clear from the notes and document itself that these activities authorised by the Centrelink recipient relate only to Centrelink payments at the time the form is completed and for a specified period in the future or an indefinite period in the future.
In my view there is no basis on which it could be concluded that even if the wife were required to complete this document that it would bring about the result that appears to be intended. The Centrelink Authority sought to be signed by the wife through orders compelling her to do so has been partially completed by the husband’s lawyer. It can be inferred from the completion of item 16 on the Centrelink Authority by the husband’s lawyer that the request “last from 9/2/02 to 1/7/2019” that the husband’s lawyer intends to enquire about or gain access to the wife’s Centrelink records throughout this period. As noted it is plain from the face of the Centrelink Authority itself and the notes that it relates to making enquiries on behalf of a person about a current Centrelink account for a nominated period in the future.
In my view the second document which comprises of annexure A, the document headed “Authority” is even more problematic. The order sought effectively requires the wife to complete a document in which she directs a government agency to provide a broad range of documents to the husband’s lawyer as requested by the husband’s lawyer.
The “authority” is firstly problematic as it is not directed to any person but is rather directed to a government department.
Second, there is no legal basis upon which a person could direct an officer of Centrelink to provide documents to another person who does not have the power to require the production of documents (such as the wife’s lawyer). This is especially so since an officer of Centrelink is prohibited by section 207 Social Security (Administration) Act 1999 (Cth) from producing documents or disclosing matters to various bodies even including a court or a person having power to require the production of documents.
The husband does not identify how, even if an order were made that the wife sign the document headed “authority” or the Centrelink Authority, these documents would be capable of causing or requiring any officer at Centrelink to produce such documents at the direction of the husband’s lawyer even if the wife authorises that officer to do so.
In these circumstances, without considering all of the arguments raised by the wife, there is in my view no utility in the court making an order that the wife sign either or both documents as sought by the husband. Even if such documents were required by order to be completed by the wife, they would not be effective to require an officer of Centrelink to produce documents to the husband’s lawyer as she may request.
So far as the balance of the orders in relation to Centrelink benefits are concerned, I am not satisfied that the issue of the wife’s receipt of Centrelink benefits requires such full exploration that it is appropriate to make the very broad orders in the terms sought. Further, it has always been argued by the husband that the wife has not provided financial disclosure in the proceedings as required and it is open to him to continue to make such a contention in the final proceedings. The respective applications will be determined in accordance with the law including as it relates to the consequences of non-disclosure if proven.
In the circumstances where the husband has not identified how the disclosure of a broad range of documents in relation to Centrelink payments potentially spanning 19 years is relevant in the property proceedings I dismiss his application in relation to this category of orders.
The final order sought by the husband in relation to financial disclosure is that the wife provide a copy of all bank statements and credit card statements referrable to a particular debit card account.
In the course of the hearing the husband appears to have accepted the wife’s submission that all bank statements have been provided and that there are no credit card statements as it is a debit account.
No other written or oral submissions were directed to this particular order. It appears that the wife has provided the relevant documents and that there are no credit card statements as the account in question is a debit card account. For this reason, the application for this order is dismissed.
Application for Arrest of Two Persons
As noted in the background to these Reasons, the wife filed and relies upon affidavits from a previous employee and a person who purchased a horse from her. The husband issued a subpoena to each of these people in 2016 to produce various records and contends that each of them has failed to comply with the subpoena and accordingly a warrant should be issued for each person’s arrest.
It goes without saying that the issue of a warrant for the arrest of a person is of its nature draconian with immense implications for a person’s liberty. A court would clearly only take such a step if satisfied that it were absolutely necessary in the interests of justice.
The subpoenae in question were issued to the wife’s employee and horse purchaser in October and December 2016 respectively. Various documents were produced by each of the people to whom subpoenae were directed. The husband deposes in his affidavit supporting his application that he considers that the subpoenae have not been complied with. It is also apparent from that affidavit that the husband contends that the documents produced by these people relate to matters at the heart of his case that the wife has provided insufficient financial disclosure in the proceedings.
Each of the people to whom the subpoenae have been directed also have filed affidavits in the proceedings. The opportunity to test their evidence including in relation to documents produced under subpoena will be available at the final hearing.
The subpoenae in question were issued in 2016 and no further action had been taken by the husband in relation to compliance since that date. I have some concern that seeking such an order years after these people have each filed affidavits for the wife and seeking the extreme measure that a warrant issue for their arrest is strategic. Further, I cannot be satisfied on the basis of the husband’s assertion that the subpoenaed parties have not complied as required. In these circumstances in my view it would be a totally inappropriate use of the most severe power to issue a warrant for the arrest of those persons.
In relation to the wife’s general contention that the husband’s action in bringing these particular applications are oppressive, I also note that in the application under consideration he had also sought that a warrant issue for the arrest of a lawyer at the legal firm representing the wife. This necessitated that firm instructing a lawyer to appear on 6 May 2019 but that that application was withdrawn at the hearing.
For the foregoing reasons, I dismiss the applications made by the husband that were considered by me on 6 May 2019.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 May 2019.
Associate:
Date: 13 May 2019
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