Granger & Granger - [2021] FedCFamC2F 545

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Granger & Granger [2021] FedCFamC2F 545

File number(s): PAC 4554 of 2011

Judgment of: JUDGE OBRADOVIC

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – Objection to subpoena – whether the subpoenaed material is relevant – whether abuse of process – whether subpoena used for discovery subpoena – set aside.

Legislation: Federal Circuit Court of Australia Rules 2001 rr. 15A.09, 15A.14
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 r.6.33.

Cases cited:
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN (NSW) 250
Brebner & Shardlow [2019] FamCA 800
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Hatton & A-G for the Commonwealth & Ors [2000] FamCA 892
National Employers Mutual General Insurance Assn Ltd v Waind [1979] HCA 11
National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
One.Tel Ltd (in liq)-SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

X Pty Ltd v Merhi [2015] FamCA 622

Division: Division 2 Family Law

Number of paragraphs: 25

Date of hearing: 25 November 2021, 1 and 16 December 2021

Place: Parramatta

Appearing for the Applicant: Ms Parks

Solicitors for the Applicant: Banksia Family Lawyers

Appearing for the Respondent: Ms Bailey

Solicitors for the Respondent: Rebecca Bailey & Associates and subsequently Helen Volk Lawyers
ORDERS

PAC 4554 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GRANGER

Applicant

AND:
MS GRANGER

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.Order 3 made on 23 August 2021 is set aside.
2.The subpoena issued to the Commissioner of Police, New South Wales Police Force on 16 August 2021 is set aside.

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 a pseudonym Granger & Granger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:

These are reasons for judgement with respect of objections to a subpoena issued to the Commissioner of Police, New South Wales Police Force, dated 16 August 2021.
The subpoena requires the production of police records relating to the respondent’s three brothers. Service of the subpoena has been effected on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Granger & Granger

Details

AGLC: Granger & Granger [2021] FedCFamC2F 545
Case: [2021] FedCFamC2F 545
Decision Date

CaseChat Overview and Summary

In Granger & Granger, the Federal Circuit and Family Court of Australia (Division 2) addressed objections to a subpoena issued to the New South Wales Police Force. The subpoena sought police records related to the respondent's three brothers. The case centered on the relevance of the documents sought and whether the subpoena constituted an abuse of process or a fishing expedition. The respondent and her brothers objected to the subpoena, arguing the records had no relevance to the parenting case and were a breach of their privacy. The court examined the legal principles regarding relevance, fishing expeditions, and abuse of process, referencing previous cases and rules.

The court noted that a subpoena can be objected to on the basis that the documents have no apparent relevance to the issues in the proceedings. The onus is on the issuing party to establish relevance. The subpoena in question sought a wide array of documents regarding the respondent's brothers, including records from incidents dating back 14 years. The court concluded that the subpoena's terms were overly broad and did not demonstrate sufficient relevance to the current parenting proceedings. The subpoena was not narrowly tailored to the issues at hand, making it a fishing expedition and potentially oppressive. Given the findings, the court decided to set aside the subpoena.

The court determined that the subpoena was overly broad and did not sufficiently demonstrate relevance to the parenting issues. The subpoena was set aside, and the orders granting access to the documents were also set aside. The court's decision highlights the importance of particularity in subpoenas and the need to avoid fishing expeditions in family law proceedings.

Orders