Franklin and Franklin and Anor

[2007] FamCA 768

FAMILY COURT OF AUSTRALIA

FRANKLIN & FRANKLIN AND ANOR [2007] FamCA 768

FAMILY LAW - PRACTICE AND PROCEDURE – Subpoenas – Objections to subpoenas issued

APPLICANT: Mr Franklin

RESPONDENT: Mrs Franklin

INTERVENER: Ms M

FILE NUMBER: DNF 225 of 2005

DATE DELIVERED: 5 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person via video

COUNSEL FOR THE RESPONDENT: Mr D.W. Berman

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

COUNSEL FOR THE INTERVENER: Mr Chin

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Franklin and Franklin.

Orders

1. That in relation to the subpoena issued by the wife to the National Australia Bank seeking production of documents in relation to the husband and Ms M, the subpoena in so far as it seeks documents relating to Ms M be set aside and leave be given to the parties and their legal representatives to inspect and copy the documents produced pursuant to that subpoena.

2. That in relation to the subpoena issued by the wife to Westpac Banking Corporation seeking production of documents in relation to the husband and Ms M, the Notices of Objection filed by the husband and Ms M to the production/inspection of documents pursuant to that subpoena be dismissed and leave be given to the parties and their legal representatives to inspect and copy the documents produced pursuant to that subpoena.

3. That in relation to the subpoena issued by the wife to the R School the subpoena in so far as it seeks production of documents specified in items 1, 3 and 4 of the schedule be set aside and the Notices of Objection filed by the husband and Ms M in relation to the production/inspection of the documents identified in item 2 of the schedule be dismissed and leave be given to the parties and their legal representatives to inspect and copy the documents produced in relation to item 2 of the schedule.

4. That in relation to the subpoena issued by the wife to the T School, Darwin the subpoena in so far as it seeks production/inspection of documents specified in items 1 and 3 of the schedule be set aside and the Notices of Objection filed by the husband and Ms M in relation to the production/inspection of the documents identified in item 2 of the schedule be dismissed and leave be given to the parties and their legal representatives to inspect and copy the documents produced in relation to item 2 of the schedule.

5. That further consideration of the subpoena issued by the wife to Westpac Banking Corporation on 28 February 2007 be adjourned to 9:30am on 26 April 2007 before a Registrar in Adelaide.

6. That leave be granted to the parties and their legal representatives to inspect and copy the documents produced pursuant to the subpoenas issued by the wife to Roads and Traffic Authority (NSW) and Motor Vehicle Registry (Darwin).

7. That the oral application for costs by Ms M be dismissed.

8. That the pre-trial conference listed for 20 April 2007 be vacated.

9. That this matter be listed for directions before a Registrar at 2:00pm on 16 April 2007 in Darwin.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNF 225 of 2005

MR FRANKLIN

Applicant

And

MRS FRANKLIN

Respondent

EX TEMPORE REASONS

1. This matter came before me initially on 27 March 2007, and it was adjourned to today.  It was specifically adjourned to enable Ms M, whose involvement I will explain in a moment, to file an affidavit in response to an affidavit filed by the wife on 6 March 2007. 

2. The issues before me are objections to four subpoenas issued by the wife, those subpoenas being respectively to the National Australia Bank seeking all bank records in relation to Ms M and the husband since 1 July 2000, a similar subpoena issued to the Westpac Bank seeking the same documentation from that bank and two subpoenas to two schools, namely, a subpoena to the T School, and I will come back to the documents sought in that subpoena, and a subpoena to the R School.  Notices of objection were lodged in relation to those four subpoenas by Ms M and also by the husband. 

3. Perhaps dealing with the husband's position first.  On 27 March 2007 he was represented and his counsel informed me that his notices of objection were, in effect, in support of the notices of objection lodged by Ms M.  The husband, who appears in person today, has confirmed that, namely, that his involvement in this aspect of the case has been nothing more than to support the objections taken by Ms M to these four subpoenas.  He said today that from his perspective he has no objection to anything sought in relation to his records in this exercise. 

4. The matter initially came before a Registrar who heard argument and determined that it should be referred to me.  The registrar also made an order that the wife file an affidavit as to the relevance of the documents sought, and that is the affidavit that I have just referred to, filed on 6 March 2007.  As I say, the matter was adjourned to enable an answering affidavit to be filed.  That has occurred, and I now have before me an affidavit of Ms M filed on 4 April 2007. 

5. In an attempt to summarise the position, Ms M is an employee of the business operated by the husband, as I understand it.  She commenced employment there in August 2001.  She separated from her husband in March 2004 and, in late 2004, as she describes it, she commenced an emotional relationship with the husband, and in or about February 2005 that became a sexual relationship.  She tells me in paragraph 31 of her affidavit that it is her intention "to remain in a committed non‑cohabiting relationship with [the husband]".

6. The wife's case, as I understand it, is that the husband and Ms M have cohabited and are continuing to cohabit in a de facto relationship, and the fact of that relationship has relevance in two areas, firstly in terms of the financial arrangements between Ms M and the husband, insofar as that might impact upon the property settlement proceedings between the husband and the wife, and secondly, in relation to the children's issues in dispute, namely, the extent to which Ms M will be involved in the care of the children.

7. It is apparent from the affidavit of the wife as well, and from submissions that I have heard, that the wife's suspicions in relation to this have arisen from a number of events which are identified in her affidavit, not the least of which is Ms M and the husband now being the joint proprietors of a house property in Darwin which is subject to a home loan which is in their joint names as well.  There are other matters, but that is the primary basis for the suggestion of a financial relationship which has relevance to these proceedings between the husband and the wife.  It is with this background that the wife has issued these subpoenas.

8. Mr Chin, who appears for Ms M, makes the same submission today as he made on the last occasion, namely that it was inappropriate for the wife to issue the subpoenas.  He says the proper course was to use the Rules of Court and the processes that are available in the Family Court to obtain discovery and production, and also to lodge interrogatories to obtain the information sought. 

9. The court file indicates that there have been attempts made for the husband to disclose relevant detail about these matters.  There is a dispute, it seems, as to how far he has gone, and certainly there are some matters which he simply did not disclose, for example, the fact of him being a joint proprietor of the house property I have referred to and also being a party to the home loan account.

10. There is also another matter which appears in paragraph 28 of the affidavit of Ms M herself and which raises serious issues about financial matters insofar as they pertain to the dispute between the husband and the wife.  There is reference to bad debts being collected and the husband allowing those debts to be placed into the personal account of Ms M and then being offset or treated as a consideration for the husband's half‑share of the equity in the house property that I have just referred to.  This is an extraordinary revelation at this stage of the proceedings, and the husband has not challenged Mr Berman's submission about that - namely, that it is the first the wife has ever heard of anything like that occurring.

11. In any event, as far as I am concerned, there was a clear basis for the wife to have concerns about the extent of the relationship between Ms M and the husband, and she was quite entitled to use whatever process was available to her to establish the parameters of that relationship and the financial arrangements, given what appears at this stage to have been a lack of disclosure by the husband.

12. That said, I do consider that in certain respects the subpoenas are too wide and are inappropriate.  I have identified some areas that concern me about that already, but if I go to the Westpac Bank, for example, what is sought, and reading from the schedule, is "all of your records in the Northern Territory and elsewhere".  “[E]lsewhere" can mean anywhere in the world, presumably, and thus is far too wide. 

13. However, the bank has answered the subpoena - and no objection was taken by the bank.  Thus I am not going to do anything about that today, in the sense that the bank has responded as best it can and, if I allow production of those documents over the objection of Ms M, it may be that I do not need to take that matter any further.

14. In relation to the two subpoenas to the schools, what is sought is, for example, in the subpoena to R School item 4 in the schedule reads, "The purpose for which a payment of $3,500.00" et cetera.  I consider that is an inappropriate use of a subpoena.  There is no document sought.  It requires the recipient of the subpoena to make inquiries and make a decision about what the purpose of a particular payment was.  Indeed Mr Berman has now conceded that that is an inappropriate use of a subpoena. 

15. However, I note that one of the other categories of documents sought is "full particulars of all payments made by [the husband] on behalf of [Ms M] for the children for school fees, day care fees or any other expenses".  In my view, there is no difficulty with that in terms of width or not being particularised or not requiring documents.

16. The other matter which does concern me though is in item 1 in the schedule to the subpoena to R School.  It commences, "In the event that [the husband] has at any time been nominated".  Again, in my view that is an inappropriate use of a subpoena.  It requires the recipient of the subpoena to make inquiries and make a decision about what has or has not happened.  This is a subpoena for the production of documents.  However, I am told that the school has not taken issue about that and the school has responded, as it has been able to, to the subpoena.

17. The principal objection taken by Ms M is that she is concerned about her privacy.  Separate to that, her counsel has raised issues of the relevance of the documents sought insofar as they can be described as documents, bearing in mind what I have just said, and that is really to what the affidavit material was addressed.  In my view though, the relevance of most of the material sought is apparent from the affidavit of the wife filed on 6 March 2007, and in Ms M's own affidavit.

18. However, that said, Ms M has deposed in her affidavit at paragraph 4 that she does not have and has never had any bank accounts with the National Australia Bank.  There is no specific evidence that I have been taken to which suggests that she has an account at the National Bank.  I consider that to be a fishing exercise and, on the basis of Ms M's statement on oath, I propose to set aside the subpoena, insofar as it relates to Ms M, there being no objection of course to it insofar as it relates to the husband.

19. In relation to the Westpac Bank, I consider that a different matter.  I am satisfied that there is apparent relevance on the documents for that subpoena to have been issued in the way it was to the Westpac Bank and in terms of the documentation sought.  I am still concerned obviously about the width of the subpoena but, as I have said, the bank has not objected to that and they have answered the subpoena as best as they can.

20. Thus what I propose to do about that is to allow the production of those documents and then make the appropriate order about inspection. 

21. If I need to refer to it, in terms of the apparent relevance, the Westpac Bank is where the joint home loan account is held and I am particularly concerned about paragraph 28 of Ms M's own affidavit, where she refers to several deposits being made into a Westpac account which is in her name alone.  I consider that, for the reasons I have already indicated, that is highly relevant and it is an appropriate basis for a subpoena to issue and for production to be required.

22. Next, in relation to the subpoenas to the schools, there are really two aspects of these subpoenas and I perhaps need to deal with them individually. I will go first to the subpoena to the R School.  There are two issues here, namely a financial issue firstly and secondly the relationship between the husband and Ms M.  Ms M has children of her own and an inquiry that the wife is, in effect, making is what involvement the husband has in Ms M's children, the relevance of that being, as I say, to the relationship between Ms M and the husband.

23. I am not satisfied, on the affidavit filed by the wife, and taking into account the response filed by Ms M as to the relationship between her and the husband, that any relevance has been established to justify the issuing of a subpoena which requires the enrolment records of the children of Ms M to be produced to this court.  Thus I propose to set aside the subpoena insofar as it relates to item 1 in the schedule.  I consider, though, that item 2 - which is "full particulars of all payments made by [the husband]" et cetera is highly relevant in terms of the financial issues and will have an indirect relevance, I suspect, in terms of the relationship issue. 

24. Ms M of course addresses payments made by the husband on her behalf in her affidavit, and particularly in relation to R School.  Ms M deals with this in paragraph 20.  She confirms the $3,500 of which the wife is aware and she says what it was for.  But, in the context of the need to be satisfied as to the financial arrangement between the husband and Ms M, I consider that there is relevance established in seeking all documentation in this regard.

25. The third item in the schedule in the subpoena to R School is "a record of all communications between [the father] and the school".  I consider that to be far too wide.  As I say, I do not consider it relevant to establish any contact that the husband has had with the school.  The only relevant issue is any financial arrangement.  Thus I propose to set aside the subpoena insofar as it seeks the documents identified in item number 3.

26. With item number 4, as I have indicated, I propose to set that aside.  That is not an appropriate subject of a subpoena.

27. Turning then to the subpoena to the T School, there are three categories of documents sought.  I will not repeat what I have said in relation to item 1, it is the same as for the R School, and I will not repeat what I have said in relation to item 3.  It is also the same for the R School.  In terms of item 2 though, in my view that is relevant, namely, "full particulars of all payments made by the husband on behalf of Ms M for her children for school fees, day care fees or any other expenses".  Thus I propose to set aside the subpoena insofar as it seeks production of the documents identified in items 1 and 3.

28. In terms of how that is most expeditiously attended to, I have looked at the subpoenaed documents and, conveniently, I can extract the relevant documents and I will do that now.  For instance, with R School there is a covering letter from the principal which summarises that school's response in relation to the four items, but in terms of the financial arrangements there is a one‑page document headed Family Transaction History All Periods, and I propose to allow inspection of that.  Everything else is to be put in a sealed envelope marked "not to be inspected by the parties or their legal representatives". 

29. I can tell everyone in open court that I have looked at the documents produced by T School and there is one page which I am allowing to be produced and which relates to financial arrangements.  All the rest relate solely and wholly to the parties’ children, and there is no reference whatsoever to Ms M or her children or the husband’s involvement or contact with Ms M's children.

30. I can also indicate that, having looked at the documents produced pursuant to the subpoena to R School there is of course one document which I am allowing the production of.  The balance of the documents produced do not indicate any involvement by the husband with either of the children of Ms M at this school. 

31. In relation to a further subpoena issued to the Westpac Bank by the wife on 28 February 2007, that subpoena has not yet been answered.  There is no objection, though, by the husband or Ms M to documents being produced pursuant to that subpoena, and thus I propose to adjourn that subpoena to a registrar.

32. There are two other subpoenas, both of which have been answered and to which there is no objection made in terms of production and/or inspection, and I am asked to make orders about that. 

33. I now have before me an application for costs by Ms M.  Her counsel submits to me that the subpoenas which were issued were unnecessary and that, if appropriate requests had been made to her to provide the information sought, she would have supplied that information.  Mr Chin says he spent several days working on this matter and his client seeks costs of the order of $4000.  That application is opposed.  Mr Berman rightly points to the circumstance that the wife has been substantially successful in relation to some but not all of the subpoenas issued.  I add that Ms M has also been partially successful in relation to the notices of objections that she has filed. 

34. In my view, on the state of the evidence at the time and given the history of the matter and the non‑disclosure by the husband to that point, and the issues raised by the wife ultimately in her affidavit, it was necessary for her to issue the four subpoenas.  Equally, it was then necessary for Ms M to respond to them in the way that she has and, in my view, there should be no order for costs in favour of either party, and I propose to dismiss the application.

35. I mention I do not agree with Mr Berman's submission based on the fact that the person objecting is not the person to whom the subpoena was issued.  Ms M has a direct and vital interest in the subpoenas and her objections carry as much force and as much weight as if the objections were lodged by the entity to whom the subpoenas were issued.  I do not dismiss the application for costs for that reason but I do because both parties have been substantially successful in respect of the subpoenas and the notices of objections.  Both parties have clearly been put to costs and expense in terms of this hearing and the previous hearing and the documentation required, and therefore, as I say, I propose to dismiss the application.

36. The husband has indicated that his current solicitor is no longer able to act for him because of her appointment as a federal magistrate.  Indeed, she has now filed a Notice of Ceasing to Act.  That has created obvious difficulties for the husband in the preparation of his affidavit material, which was due to be filed on 10 April 2007 for the purposes of a pre‑trial conference on 20 April 2007.  It is unclear at this stage who will be acting for the husband, and it is also unclear how much more time the husband might need to complete his affidavits. 

1. I propose to take this one step at a time.  I propose to vacate the pre‑trial conference on 20 April and I propose to list this in the registrar's directions list on Monday, 16 April for the husband to apprise the registrar of what the position then is as to his representation and the preparation of his documents. 

I certify that the preceding
37 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 5^th day of April 2007.

……………………………………….
Associate