Galante and Galante - [2019] FamCA 901

FAMILY COURT OF AUSTRALIA

GALANTE & GALANTE

[2019] FamCA 901

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks further discovery of documents – Where the husband opposes discovery on the basis that the documents have either already been discovered or that the documents sought are an abuse of process, fishing or oppressive – Orders.

Family Law Rules 2004 (Cth) rr 13.01, 13.04, 13.07

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063
Hatton & Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Martin & Martin and Anor(No 2) [2014] FamCA 232
Re Ronald Neville McGorm Ex Parte: the Co-operative Building Society of South Australia [1989] FCA 87
Schweitzer & Schweitzer [2012] FamCA 455
Woley & Humboldt (No 3) [2009] FamCA 546

APPLICANT:

Ms Galante

RESPONDENT:

Mr Galante

FILE NUMBER:

ADC

3454

2017

DATE DELIVERED:

29 November 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maik

SOLICITOR FOR THE APPLICANT:

Camena Legal

COUNSEL FOR THE RESPONDENT:

Mr Livesey QC with Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Family Lawyers

Orders

That within seven (7) days of the date of this order the husband shall produce the following documents:-
(a)All bank statements in the name of B Galante Family Trust (“BGFT”) in respect of the following transactions:-
(i)Capital contributions totalling $238,896 for the years ended 30 June 2018 and 30 June 2019;
(ii)Capital contributions for the year ended 30 June 2010;
(iii)Investments by BGFT for years ended 30 June 2018 and 30 June 2019 in respect of N Pty Ltd;
(iv)Loans from BGFT to the husband and/or Ms Dains being money deposited into a Westpac joint home loan account;
(v)The withdrawal of $100,000 in September 2012 from a CBA term deposit account;
(vi)Loans in the amount of $86,897 from BGFT to the husband for the purpose of paying the husband’s taxation liabilities.
(b)Any documents that relate to any money provided by the husband to his parents in respect of any capital contribution or loan made to BGFT by either Mr B Galante or Mr D Galante.
(c)Bank statements for the BGFT CBA term deposit in September 2012;
(d)Loan account ledgers for the following beneficiaries:-
(i)Mr B Galante and Mr D Galante from 1 June 2006 to 30 June 2019;
(ii)Mr C Galante from 1 July 2015 to 30 June 2019;
(iii)Ms E Galante and Mr H Galante from 1 July 2006 to 30 June 2019;
(iv)The wife for the period from the settlement of BGFT to 30 June 2019 ;
PROVIDED THAT the husband will cause the provision of the reconstructed loan accounts upon the payment by the wife of the reasonable costs of compliance fixed in the sum of THREE HUNDRED DOLLARS ($300) plus GST for each year that records are required to be reconstructed;
(e)Documents (if available) which identify the financial institution, account name and account numbers into which beneficiary distributions have been made for the period 1 July 2006 to 30 June 2019 PROVIDED that the husband shall not be required to cause documents to be created or reconstructed and that the provision of documents shall be subject to reasonable costs of compliance.

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 Galante & Galante 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 ADELAIDE

FILE NUMBER: ADC 3454 of 2017

Ms Galante

Applicant

And

Mr Galante

Respondent

REASONS FOR JUDGMENT

Introduction

The Amended Initiating Application filed 30 August 2019 by Ms Galante (“the wife”) and Amended Response filed 14 October 2019 by Mr Galante (“the husband”) seeking orders by way of settlement of property or alteration of interests in property are listed for final hearing in the week commencing 9 December 2019.
In preparation for the final hearing the wife seeks extensive orders for the discovery and production of documents in the possession and/or control of the husband.
On 23 October 2019 judgment was reserved in respect of proposed order 6 of the wife’s Amended Initiating Application and proposed orders 5 to 11 inclusive of the Response filed 1 October 2019.
The parties have been in dispute as to whether each of them, but in particular the husband, has made full and frank disclosure. The husband contends that he has, whereas the wife considers that the husband’s disclosure has been incomplete. She further contends that the husband is actively resisting the provision of documents that the wife considers as being relevant to her case.
The wife acknowledges that after the case management hearing, in July and August 2019 the husband provided in excess of 1000 pages of documents.[1] She alleges that the majority of the documents had already been provided and that despite her repeated requests and application for the provision of “relevant documents” the husband disclosed “irrelevant material” that she considered to be “padding”. In particular she seeks documents that explain the provenance of “the source of unexplained substantial capital contributions into the BGFT purportedly by the respondent husband’s elderly parents”.[2]
[1] Wife’s affidavit filed 1 October 2019 at [69].
[2] Wife’s Affidavit filed 1 October 2019 at [74].
The wife disputes the husband’s stated position that he has complied with his obligations to make full and frank disclosure.
A further indication as to the importance that the wife places on the documents that she seeks is apparent from my judgment delivered on 18 October 2019 which ordered the dis-joinder of the second, third and fourth respondents. I found that:
The wife sets out with some clarity that the purpose of joinder is to pursue the production of documents that she contends have been sought from the husband, are in his control and that he has refused to provide.[3]
[3] Galante & Galante and Ors [2019] FamCA 756 at [63].
At the hearing of the wife’s application her counsel tendered a document setting out the balance of the documents that the wife now seeks.[4]
[4] Exhibit “4” in the proceedings.
Queen’s Counsel for the husband tendered a table of discovery which provides his response to the wife’s table as tendered on 14 October 2019.[5]
[5] Exhibit “3” in the proceedings.

Principles to be applied

Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”) imposes an obligation of full and frank disclosure on the parties to Family Court proceedings and provides specific mechanism by which that obligation must be fulfilled.
As noted in Briese and Briese (1986) FLC 91-713 ‘the need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance.
Despite the breadth of the duty to disclose, there are concerns about the over-broad disclosure of documents in Family Court proceedings. The restriction on the obligation of discovery has been the subject of discussion as it relates to subpoenas to produce documents. In Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570 Smithers J said:-
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
In Hatton & Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 the relevance of documents in the context of a subpoena was considered by the Full Court and the following examples were given where a Court may determine that it is proper to set aside a subpoena:-
·    If the subpoena is for an improper purpose namely to obtain discovery against a third party.
·    Where it might be oppressive to comply with a subpoena.
·    Where a party embarks upon a “fishing expedition”.
·    That the subpoena should be set aside because it lacks relevance to the proceedings.
In Martin & Martin and Anor(No 2) [2014] FamCA 232, Cronin J found that the focus of the Court should be whether it was “on the cards” that the documents would materially assist. His Honour considered his own comments in Woley & Humboldt (No 3) [2009] FamCA 546 where he said:-
39.In Hudson Timber & Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832, the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1)The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2)If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
The obligation to make discovery is not in the abstract but rather, requires the parties to consider the relevance that the documents may have to an issue in dispute. The objective should be to assist the Court in the disposal of an issue or the dispute in general.
At an early stage in the proceedings it is not necessarily easy to define the issues and therefore the extent to which a document or a category of documents may have a sensible relevance. As the proceedings progress the issues are cast more clearly and accordingly the parties are better able to ascertain what documents are truly relevant and germane to the task that the Court is required to undertake. The Court now has the advantage of the trial affidavits of the parties.
Obviously the wife’s application must be determined in the context of the orders that each of the parties seek and the evidence they rely upon as set out in the trial affidavit material.
In recent years superior courts have taken a more modern approach to general discovery. In part, this is as a result of the enormous amount of documentation that is involved and the burden and cost of discovery, in many cases where it may not be necessary. The discovery process has been criticised as having disadvantages including the swamping of parties with masses of material which tend to delay the proceedings and to fog the real issues.
On 1 August 2011 the Federal Court of Australia adopted the Federal Court Rules 2011 (Cth) and its revised regime for discovery in pt 20. These changes have impacted upon the extent and the cost of discovery in the Federal Court.
Part 20 provides for:-
·Increased judicial control of discovery;
·A default or standard form of discovery that require the documents be “directly relevant” to issues in the pleadings and are or have been in the party’s “control” after conducting a “reasonable search”;[6] and
·A more flexible and responsible non-standard discovery regime that can be tailored to the specific case, such as those that are likely to be document intensive, especially where the documents stored electronically.[7]
[6]Federal Court Rules 2011 (Cth) r 20.14.
[7]Federal Court Rules 2011 (Cth) r 20.15.
The new regime for discovery in the Federal Court proceedings is on the basis of two principles namely, that a party must not apply for discovery unless the making of an order will “facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible” and that a party is not able to provide discovery unless the Court has made an order for discovery. The focus is to prevent unnecessary discovery.[8]
[8] See e.g. Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63.
In Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 the following is said :-
8. For that purpose under the 2011 Rules, discovery is to be given only when ordered by the Court rather than pursuant to any private arrangement between the parties (r 20.12). Under both sets of Rules, documents must be directly relevant to the issues raised in the proceedings by pleading or affidavit or affidavits accompanying the originating application. In addition, it is necessary that the documents must meet at least one of the following criteria (r 20.14(2) of the 2011 Rules):
(a) The documents are those on which the party intends to rely;
(b) The documents adversely affect the party’s own case;
(c)The documents support another party’s case;
(d) The documents adversely affect another party’s case.
9. While more extensive and special discovery may be permitted where the party satisfies a Court as to the need (r 20.15 of the 2011 Rules), the overriding objectives and purposes must always be borne in mind.
Accordingly, the purpose of the Federal Court Rules 2011 (Cth) is to require parties to consider the extent to which discovery is required and whether the document or documents are necessary as being relevant to the issues raised, that a party is aware of them and that they are or have been in a parties control.
For discovery to be the subject of an order the document must pass the “directly relevant” test.
The direct relevance test is aimed at narrowing the scope of discovery. The meaning of direct relevance is that of relevance in the sense of requiring the document be directly on point and that it tends to prove or disprove the allegation in issue.
It is understood that the current proceedings do not necessarily fall within the category of “commercial proceedings”. It is also important to differentiate proceedings under the Family Law Act 1975 (Cth) (“the Act”) where the parties may have different levels of control and advantage. In many cases, without the clear obligation on a party to make full and frank disclosure, matters that could well be relevant to the issues that the Court needs to determine may not be known by any other means.
Accordingly, the Rules impose a more generous obligation in respect of discovery than might now be the practice in other superior courts. That obligation falls short of discovery without forensic focus.

Orders sought

The wife seeks the discovery and production of documents set out in items 1 to 28 inclusive in Exhibit “4”.

Glossary of relevant entities

O Superannuation Fund;
The B Galante Family Trust (“BGFT”);
The Galante Investment Trust (“GIT”).

The BGFT was established as a discretionary trust on 7 March 1985. By reference to the Trust Deed annexed to the Affidavit of Mr F filed 4 October 2019, Mr B Galante (the husband’s father) and the husband were the original trustees.[9] The designated person or principal beneficiary is Mr B Galante who also holds the sole power of appointment. At a later stage, in addition to the husband and his father, the husband’s brother Mr C Galante was appointed as a co-trustee.
[9] Affidavit of Mr F filed 4 October 2019 Annexure “TT1” Tab 1.
The husband is one of the classes of beneficiaries of BGFT. The husband asserts that he has not made any capital contribution to the corpus of BGFT and that all contributions recorded in the financial statements and accounts reflect contributions by his parents.
The wife seeks the following declarations in respect of the BGFT:-
a)Declarations that (save for the loan accounts owed to the wife and the adult children) the assets or a portion of the assets of the BGFT are held on trust for the husband;
b)Declarations that the BGFT is the alter-ego of the husband;
c)Declarations that (save for the loan accounts owed) the assets or a portion of the assets of the BGFT are property of the husband.

The wife’s argument

The gravamen of the wife’s claim by reference to her Trial Affidavit filed 30 August 2018 and her Affidavit filed 1 October 2019 in relation to the wife’s joinder application is set out at [138] of the trial affidavit as follows:-
There have been significant capital contributions to the trust from [the husband’s] parents who are now aged 91 and 88 years old, including:
138.1A capital contribution of $678,294 in the year ending June 2010, approximately one year after [the husband] and I separated…;
138.2A capital contribution totalling $238,896 for the years ending 30 June 2018 and 2019…
The wife describes the husband’s parents as “self-funded retirees disclosed to be living on income from BGFT…”. The husband’s parents have apparently drawn $6 from BGFT in the financial years ending 2018 and 2019 notwithstanding that the financial statements reveal they have contributed a significant amount of capital.
The wife relies upon the Affidavit of Mr Q filed 6 September 2019. Mr Q holds the qualification of a chartered accountant and investment banker.
In particular the wife shares the apparent scepticism of Mr Q that the husband’s parents are stated to be self-funded retirees, would not therefore receive a Government pension, draw little or no income from the trust to live upon and are therefore unlikely to have been in the position of contributing capital being $678,294 in the 2010 financial year and a further $238,896 for the 2018 and 2019 financial years. He contends that “the source of [the husband’s] parent’s capital contributed of $678,294 is not known.[10]
[10] Affidavit of Mr Q filed 6 September 2019 at [21].
The wife seeks documents to explore the source of funds contributed by the husband’s parents to BGFT to support her contention that the money contributed by the husband’s parents were sourced from the husband and his apparent ability to access drawings from the trust without fetter supports the wife’s application for either a declaration or a finding that the trust is the alter-ego of the husband.
The husband relies upon the Affidavit of Mr F filed 4 October 2019. Mr F is in the employ of R Pty Ltd Accountants who have been and remain the accountant for the BGFT since 2002. Mr F has the day to day carriage of the accounting affairs of the BGFT since approximately 2011.
He confirms that the accounts of BGFT reflect the capital contributed by the husband’s parents of $678,294 in the 2010 financial year and $238,896 in the 2018 and 2019 financial years. His affidavit breaks down the manner in which the contributions were made.
His evidence is that the husband’s parents derive income from sources other than the BGFT.
He refers to the contributions of $678,294 and relies upon a CBA term deposit held by the husband’s parents which contained $582,629 transferred to the BGFT which together with other amounts supported the capital contributed.

Item 1 – All BGFT Bank Statements for period 1 July 2007 to date

The wife argues that the documents are relevant to the proceedings in that the husband is the trustee of BGFT and has “direct and/or indirect control” over the BGFT.
The wife considers that the bank statements of BGFT for the period 1 July 2007 to date are relevant and would form part of the documents that the husband would be required to disclose pursuant to r 13.04(1)(f) of the Family Law Rules 2004 (Cth) (“the Rules”).
The husband concedes that he is one of the three trustees and a beneficiary of the trust. He does not concede that he has control either directly or indirectly and it appears uncontroversial that as and from the date that the Trust was settled the husband’s father has been the sole appointor.

The husband has provided the financial statements for the BGFT together with the further documents being annexures to the affidavit of Mr F. Those documents include the Trust Deed and documents amending the Deed for the BGFT together with limited bank statements for the BGFT account number #...9.
The Rules provide that each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.[11] This duty relates to each document that “is, or has been in the possession, or under the control of” a party that is also “relevant to an issue in the case”.[12]
[11]Family Law Rules 2004 (Cth) r 13.01.
[12]Family Law Rules 2004 (Cth) r13.07.
In the decision of Re Ronald Neville McGorm Ex Parte: the Co-operative Building Society of South Australia [1989] FCA 87 Von Doussa J considered the obligation on a party to give discovery of documents not in their possession:-
5. The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making enquiries from the person in whose possession the documents now are… It was said in the nineteenth century case of Taylor v. Rundell… by Lyndhurst LC. "If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it". …
6.The scope of the enquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The enquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive. …
(Citations omitted).
In Schweitzer & Schweitzer [2012] FamCA 455 O’Reilly J held at [45] that “possession”, as contemplated by r 13.07:-
[M]eans not mere physical possession (custody) but “possession” within the accepted meaning of “the legal right to possession”…
It is not controversial that the husband is both a trustee and a beneficiary of the BGFT. As a beneficiary he has a right to seek documents for the purpose of determining that there has been due administration. As a trustee he has access to the documents pertaining to the BGFT in order to discharge his fiduciary obligations.
I am satisfied that to the extent the bank statements sought exist, they should be considered as being in the “possession” of the husband. The husband’s opposition is on the basis that the request for the bank statements as and from 1 July 2007 is “oppressive, irrelevant, vexatious, abuse of process and unable to obtain”.
Bank statements have not been retained for the entire 12 year period and in any event relevant bank statements are referred to and exhibited to the affidavit of Mr F.
To determine whether the documents sought have “apparent relevance” must relate to an issue in dispute but not necessarily limited to documents that go directly to an issue raised in pleadings or in the affidavit material.
The wife does not set out the “apparent relevance” of the BGFT bank statements for the period sought. The apparent requirement for production arises from a consideration of r 13.04(1)(f) of the Rules. That argument is circuitous. It merely establishes possession but not relevance.
The issue raised by the wife is a belief that substantial sums purportedly contributed by the husband’s parents may have been sourced from the financial resources of the husband. The category of documents sought by the wife would not establish that contention. To the extent that the bank statements are required to establish the composition of the capital contributions of the husband’s parents, I am satisfied that the affidavits of Mr F together with the annexures are comprehensive of that issue subject to further challenge by the wife.
The wife places significant reliance on the affidavit of Mr Q. He considers that further documents are required to determine the matrimonial asset pool and in particular “assets and/or transactions relevant to proceedings”.
He identifies the following transactions:-
(a)Capital contributions totalling $238,896 into the BGFT for the years ended 30 June 2018 ($122,748) and 30 June 2019 ($116,148);
(b)Capital contribution of $678,294 into the BGFT for the year ended 30 June 2010;
(c)Investment by BGFT during the years ended 30 June 2018 and 30 June 2019 totalling $421,315 (loans $362,000 and plant and equipment $59,315 in N Pty Ltd (company associated with the respondent) and/or assets in a supply industry);
(d)Loan/s from BGFT at least $100,000 disclosed by the respondent as being deposited into the Westpac joint home loan account of the respondent and his de facto partner, Ms Dains;
(e)Further $100,000 withdrawn in September 2012 upon maturity from the same CBA Term Deposit;
(f)Loans in the amount of $86,897 from the BGFT to the respondent for the stated purpose of paying the respondent’s taxation liabilities.[13]
[13] Affidavit of Mr Q filed 6 September 2019 at [9].
The wife adopts the matters raised by Mr Q and whilst the husband’s position is that those documents have either been discovered and/or are not required given the comprehensive explanation of Mr F which is not the subject of dispute, I find that bank statements that relate to the issues raised by Mr Q are likely to be of apparent relevance to the proceedings. The wife does not explain why all of the bank statements for the entire period are necessary. In the absence of any explanation there is merit in the argument that the provision of these documents (if they still exist) is likely to be oppressive and irrelevant. By limiting the bank statements referable to the transactions that are of concern to the wife I consider the exercise would not be oppressive and it may well be the case that there are no further documents that need to be produced.

Item 2 – Source of funds

The wife seeks to explore the source of funds provided to the husband’s parents to make the capital contributions as identified in [10] and [12] of the affidavit of Mr Q.
The application is opposed by the husband who contends that the source of funds have already been disclosed by reference to the Affidavit of Mr F filed 4 October 2019.
The wife’s concern is relatively straightforward. She seeks to explore whether the significant capital contributions of the husband’s parents to BGFT were sourced from the financial resources of the husband. The husband would have a clear obligation to provide documents in his possession or control that related to any funds he provided to his parents for their subsequent contribution to the BGFT. To the extent that the husband is in possession of any documents that fall into that category I propose to make such an order, but that does not extend to an order directed to the husband’s parents or any other person.

Item 12 – Westpac Earth Platinum Account # …3

The wife seeks the statements for the period February 2016 to 23 July 2018.
The husband’s response is that the account was closed in February 2016 and all statements from January 2012 to February 2016 have been disclosed.
I propose to make no order on the basis that the category of documents does not exist.

Item 13 – all documents in relation to J Pty Ltd including but not limited to financial statements, company records, ASIC documentation, bank statements and general ledgers, contracts and customer lists

The wife contends that the documents sought in relation to J are relevant because they show the use or application of matrimonial funds by the husband.
The husband’s objection is that the request for documents is so broad that it is oppressive and potentially represents an abuse of process given his contention that they are irrelevant to the proceedings.
Mr Q refers to J in his affidavit as a company incorporated on 23 October 2017 with the husband being a co-director with Mr P, a person unrelated to the proceedings.
A recent ASIC search reveals that the husband is not a shareholder but that his father holds 100 of the 300 issued shares.
Mr Q considers that the shareholders are not represented as holding a beneficial interest in the shares and therefore they must be trustees or nominee shareholders on behalf of another entity.
The wife considers that J is in some way associated with the husband although he does not appear on record to either directly or non-beneficially hold shares, nor has he received any distribution from the BGFT.
In her trial affidavit the wife contends that BGFT has invested $421,315 in J by way of a loan to purchase plant and equipment.
Mr F refers to the investment by BGFT in J.
His evidence is that the husband has no direct interest in J. The wife does not allege that the husband has a direct interest in J and accordingly to the extent that J has any relevance to the proceedings it must be the plant and equipment purchased by BGFT for J.
Mr F asserts that the money advanced to J was sourced from the capital contribution to BGFT by the husband’s parents.
If the husband has documents that relate to his direct or indirect interest in J then it is reasonable that they be the subject of discovery.
It is difficult to understand the focus of the documents sought by the wife in terms of whether they form part of the documents held by BGFT, J, the husband, his father or Mr Branch and/or related entities.
The purpose of documents in respect of J must have apparent relevance to the proceedings. The value of BGFT may have some relevance but that exercise, if it were to be undertaken noting that the trial is to commence on 9 December 2019, would not require the provision of all documents of the breadth sought by the wife.
The absence of stated purpose of the documents lends weight to the submission that it is a “fishing exercise” rather than a category of identified documents being required for a particular purpose. That has not been established and accordingly the request by the wife is oppressive and lacks any explanation as to the apparent relevance of the documents.

Item 14 – All documents in relation to N Pty Ltd

The wife relies upon the same argument in relation to N Pty Ltd as for the N2 Pty Ltd.
I accept that at least at first instance information in respect of both N Pty Ltd and N2 Pty Ltd appears in the financial statements of the BGFT. There is no complaint by the wife that suggests the financial statements are deficient.
The wife’s application is oppressive and she has not demonstrated apparent relevance.

Item 15 – The husband’s Wills executed by him for the period 2005 to date

The wife seeks the husband’s executed Will documents because she considers that they will show the use or application of matrimonial funds by the husband and should form part of his financial statement.
It must be the case that the husband’s testamentary intention from time to time is irrelevant. Nothing is put forward by the wife to establish the relevance of either the husband’s current Will (if it exists) or any previous Will.
In the absence of any indication of nexus to the wife’s claim thereby establishing apparent relevance, I propose to make no order.

Item 16 – Any and all gifting letters executed by any beneficiary for GIT for the period from 2005 to present

The husband concedes the gifting letters are relevant but that they have been the subject of disclosure at items 3.33 and 3.36 of the list of discovery.
Give the husband’s assertion that no further documents exist other than those that have been discovered, I propose to make no order.

Item 20 – Bank records for BGFT CBA term deposit in September 2012 and parent’s CBA account bank statements

The husband considers that all relevant documents in respect of the deposit in September 2012 have been provided, but in any event are exhibited to the Affidavits of Mr F filed 2 and 16 October 2019. The documents set out a reconciliation of BGFT term deposits.
If the wife’s request is for the husband’s parents’ CBA bank statements then that is not a matter that places any obligation on the husband.
The wife’s request establishes apparent relevance with the only issue being an assertion by the husband that all relevant documents have been produced and/or discovered. I propose to make the order in respect of the category of documents that the wife seeks on the basis that it does not compel the husband to produce documents in respect of his parents’ banking and that there may be no further documents to produce.

Item 21 – Documents identifying the original source of funds provided to BGFT either directly or indirectly by the husband

It is accepted by the husband that there is apparent relevance to the documents sought by the wife although his stated position is that he has neither directly nor indirectly sourced the funds that were contributed by the husband’s parents to BGFT.
The request in Item 21 is the same request as was made in Item 2.
I do not propose to make any further order.

Item 22 – BGFT beneficiary loan account ledgers for Mr B Galante and Mr D Galante, Mr C Galante, Ms E Galante and Mr H Galante and the wife

The husband does not challenge the relevance of the beneficiary loan account ledgers for the particular period but contends that they are already the subject of disclosure in the financial statements, balance sheets and profit and loss of the BGFT for the financial years ending 2007, 2009, 2012 to 2019.
I am uncertain whether the wife seeks the historical and current balance of the beneficiary loan accounts or whether it is the transaction details that are required.
The wife seeks orders pursuant to s 106(b) of the Act that all transactions relating to the gifting and/or payment by the wife and the adult children namely Ms E Galante and Mr H Galante be set aside.
The wife’s proposed order is therefore not transaction specific but rather, that any gifting and/or payment of credit loan account entitlements of the wife and the adult children would be all that is required.
Mr F confirms that the balances of beneficiary loan accounts of BGFT appear in the financial statements for each year but that the ledgers are not kept beyond two years.
The loan account ledgers for the financial years ended 2018 and 2019 have been produced. If the wife seeks the loan account ledgers for any other period noting that they will need to be reconstructed, the husband will incur $300 plus GST for each year the subject of application by the wife.
I propose to order that the husband will cause the provision of further loan accounts upon the payment by the wife of the appropriate costs of reconstruction.

Item 24 – Documents identifying the name of the financial institution, account names and account numbers for any and/or bank accounts into which beneficiary drawings may have been made for the period 1 July 2006 to 30 June 2019 for B, Mr D and Mr C Galante

The wife does not assist in highlighting the apparent relevance of the documents sought other than it shows the use or application of matrimonial funds by the husband.
In the absence of any identified relevance, the husband contends that the application is a fishing exercise.
To the extent that documents exist they are held by the BGFT.
The documents that have been provided include the financial statements for the BGFT. Those documents identify the payment of beneficiary drawings.
It is difficult to ascertain the purpose or relevance, not of the fact that a beneficiary has received a drawing, but into which account it has been paid. I am not told whether, if ordered, the documents sought by the wife are in existence or whether they will have to be created.
I do not think it is proper that the husband cause documents to be created or reconstructed, but if documents do exist which provide information as to the recipient account or accounts of any beneficiary drawings, then I propose to order that the documents be produced subject to the reasonable costs of compliance.

Item 26 – Documents of term deposit records including investment applications and/or receipts, renewal instructions, renewal notices or maturity advices in the name of BGFT and/or any of the trustees for the period 1 July 2006 to date

The documents are sought on the basis that the husband is a trustee and is therefore subject to the obligation to make full and frank disclosure pursuant to r 13.04(1)(f) of the Rules.
I do not propose to repeat the matters raised in relation to Item 2 other than to repeat that the rule identified relates to possession and control rather than relevance.
The husband objects to the provision of the documents on the basis that they are not only irrelevant but compliance would be difficult and should be considered as onerous.
Relevant documents in respect of the reconciliation of BGFT term deposits are produced by reason that they are exhibited to the affidavits of Mr F.
There is no contention by the wife that there is anything amiss in respect of the term deposits in the name of the BGFT, nor that any trustees have invested in BGFT funds by term deposit.
In the absence of further explanation I consider that the wife has not established apparent relevance and given the breadth of documents sought, the request is onerous and at this stage its purpose could only be a fishing exercise.
I propose to make no order.

Item 27 – Documents of CBA term deposits in the name of BGFT for accounts #...2 and #...4

The considerations that apply to Item 27 are not dissimilar to those considered in respect of the documents sought in respect to Item 26.
The wife does not set a period during which the documents for each named account are sought. Again, there is no attempt to establish the relevance nor is it contended that the reconciliation of the BGFT term deposits as exhibited to the affidavits of Mr F are inaccurate, in error and/or should be considered suspect. I do not propose to order the husband to produce the documents sought in Item 27.

Item 28 – Settlement statement for the purchase of the Suburb K property

The husband refers to Item 5.19 being the settlement statement disclosed and produced.
The husband has further discovered bank statements and settlement documents in respect of the purchase of the Suburb K property by Ms Dains.
The wife has the advantage of the husband’s evidence in his trial affidavit.
The husband can do no more than produce the settlement statement. It is not reasonable that the husband should construct or create a fresh document in circumstances where he provides an explanation (albeit potentially the subject of challenge by the wife) as to the manner in which the Suburb K property was purchased.
The husband is obliged to provide documents in his possession evidencing all aspects of the purchase of the Suburb K property. It is his contention that he has done so.
If more is required in respect of the financial affairs of Ms Dains then that is not a matter for the husband. On the basis that the husband has discovered the settlement statement for the purchase of the Suburb K property, I do not propose to make any further order.

Conclusion

I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 November 2019.

Associate:

Date: 29 November 2019