Haldar & Santosh - [2022] FedCFamC2F 1594

Federal Circuit and Family Court of Australia
(DIVISION 2)
Haldar & Santosh [2022] FedCFamC2F 1594

File number(s): SYC 6610 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 22 November 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a Registrar’s decision filed by the wife– Subpoena issued by the wife to the husband’s father’s company – where both the husband and the director of the company being the husband’s father object to the production of documents –where the objections were upheld save for two categories of documents- where the wife asserts that the husband has unfettered control of the company or the company is at the least a financial resource for the husband– where it is asserted that the documents sought to be produced are not relevant, a fishing expedition, is oppressive and have no forensic purpose- – Application for Review upheld in part and orders made for the production of further documents.

Legislation:
Family Law Act (1975) (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 6.33, 6.35, 14.05, 14.07

Cases cited:
1 Alister v R [1984] HCA 85

Baumann & Ors & Rushbrook & Anor [2016] FamCA 90
Dunn v KAZ Group [2006] NSWSC 8
Hatton v Attorney-General of the Commonwealth of Australia & Ors [2000] FamCA 892

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

McMillan Incorporated v Bishopgate Investment Trust [1993] 4 All ER 990
National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
R v Barton [1981] 2 NSWLR 414
Shaw and Shaw [1989] FamCA 5
Trade Practices Commission v Arnotts Ltd (no 2) [1989] FCA 340

X Pty Ltd and Ors & Merhi [2015] FamCA 622

Division: Division 2 Family Law

Number of paragraphs: 45

Date of last submission/s: 8 November 2022

Date of hearing: 8 November 2022

Place: Sydney

Solicitor for the Applicant Mr Roberts of Counsel

Solicitor for the Respondent Mr Williams, KC

Solicitor for the Intervener Mr Duc of Counsel

ORDERS

SYC 6610 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HALDAR

Applicant

AND:
MR SANTOSH

Respondent

B PTY LTD

Intervener

order made by:

JUDGE MURDOCH

DATE OF ORDER:

23 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The Orders of 22 August 2022 are discharged.
2.The Schedule to Subpoena to B Pty Ltd filed 7 July 2022 is varied to read as follows:-
a.A copy of this Subpoena.
b.Copies of:
i.company tax returns, financial statements (including balance sheets, detailed profit and loss accounts, notes to the accounts, directors report and statement, and accountants or auditors reports);
ii.statements of bank accounts;
iii.statements of loan accounts between Mr Santosh and B Pty Ltd;
iv.employment records for Mr Santosh;
v.ledgers for any loan or other credit facility between Mr Santosh and B Pty Ltd and any applications for finance executed by the Husband in his role as general manager of B Pty Ltd; and
vi.fringe benefit tax returns

of B Pty Ltd for the period 1…

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 Haldar & Santosh

Details

AGLC: Haldar & Santosh [2022] FedCFamC2F 1594
Case: [2022] FedCFamC2F 1594
Decision Date

CaseChat Overview and Summary

The case of Haldar & Santosh concerns parenting and property proceedings following the separation of the parties in July 2022. The wife, Ms Haldar, filed a Subpoena on 7 July 2022 seeking the production of various documents from B Pty Ltd, a company of which the husband's father is the director. The husband and the director objected to the subpoena, leading to an application for review filed by Ms Haldar on 14 September 2022. The court had to determine whether the wife's subpoena should be upheld, varied, or dismissed.

The legal issues centered around the relevance and necessity of the documents sought by the wife, as well as whether the subpoena was overly broad, oppressive, or a fishing expedition. The court had to weigh the wife's need for the documents against the potential burden on the company and the husband. The wife argued that the documents were necessary to understand the financial relationship between the husband and the company, while the husband and the company director argued that the subpoena was overly broad and not relevant to the issues in the case.

After considering the submissions and the evidence presented, the court found that the wife had established the apparent relevance of the documents sought. The court determined that while some categories of documents were not relevant or necessary, others were pertinent to understanding the financial relationship between the husband and the company. The court allowed certain categories of documents, such as company tax returns, financial statements, statements of bank accounts, statements of loan accounts between the husband and the company, and fringe benefit tax returns. The court also varied the subpoena to narrow the scope of some categories of documents and struck out others.

The court's final orders varied the subpoena to require the production of specific documents by B Pty Ltd within 42 days. The wife and husband were required to file and serve written submissions on the question of costs, and the court determined that the question of costs would be decided in chambers unless any party objected. The notices of objection filed by the husband and the company director were dismissed, except for the question of costs. The application for review filed by the wife was also dismissed, except for the question of costs.

Orders