Haseeb & Haseeb
[2022] FedCFamC1F 520
•22 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Haseeb & Haseeb [2022] FedCFamC1F 520
File number(s): PAC 1927 of 2017 Judgment of: RIETHMULLER J Date of judgment: 22 July 2022 Catchwords: FAMILY LAW – DISCOVERY – Documents no longer in possession of party – Documents provided to Social Security and Tax Office – Injunctions requiring party to seek information from Social Security and Commission of Taxation, including Freedom of Information request – Mandatory injunctions ordered. Legislation: Family Law Act 1975 (Cth) ss 79, 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 9
Freedom of Information Act 1982 (Cth)
Social Security (Administration Act) 1999 (Cth) ss 204, 207
Taxation Administration Act 1953 (Cth) Sch 1
Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010
Cases cited: Alister v R [1984] 154 CLR 404; [1984] HCA 85
El Helou v Smith [2009] NSWSC 741
Federal Commissioner of Taxation & Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154
Mitty & Mitty [2008] FamCA 973
Newport & Newport [2017] FamCA 117
Perish & R [2015] NSWCCA 237
Stopford-Molloy & Molloy [2022] FedCFamC1F 118
Tahana & Hines [2021] NSWSC 564
Wray & Wray [2007] NSWSC 164
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 8 July 2022 Place: Parramatta Solicitor for the Applicant: Mr Singh The First Respondent: Appearance excused Solicitor for the Second Respondent: McHardy Law Counsel for the Second Respondent: Mr M.J. Heath and Mr R.D. Turnbull Independent Children’s Lawyer Appearance excused
Table of Corrections 28 July 2022 In paragraph 9, the second sentence which read, “She says that she is unaware of the second respondent being in paid employment at any time since 2002, when he arrived in Australia”, has been amended to, “The wife says that she is unaware of the second respondent being in paid employment at any time since she arrived in Australia in 2003”. ORDERS
PAC 1927 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HASEEB
Applicant
AND: MR HASEEB
First Respondent
MR B HASEEB
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
RIETHMULLER J
DATE OF ORDER:
22 July 2022
THE COURT ORDERS THAT:
1.That within 14 days of the date of these Orders, the second respondent sign and provide to the applicant’s solicitors the completed Centrelink form “Authority to release personal information personal injury, insurance, superannuation or other matter (Si039)” for release to the applicant’s solicitors copies of all applications he has made for any Centrelink benefits for the period 1 January 1993 to the present together with copies of any supporting documentation submitted with those applications.
2.That within 14 days of the date of these Orders, the second respondent sign and provide to the applicant’s solicitors the completed Australian Taxation Office “Freedom of Information (FOI) request” form for release to the applicant’s solicitors copies of all taxation returns and Notice of Assessments for the Second Respondent for the period 1 January 1993 to the present.
3.That the applicant meet the fees associated with the Centrelink form “Authority to release personal information personal injury, insurance, superannuation or other matter (Si039)” and the Australian Taxation Office “Freedom of Information (FOI) request” at first instance, and the question with respect to those costs otherwise be reserved to the trial judge.
4.The costs of the applicant’s Application in a Proceeding filed 21 June 2022 be reserved to the trial judge.
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 the pseudonym Haseeb & Haseeb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J
Introduction
The applicant wife seeks property settlement orders against her husband, the first respondent.
The second respondent, the husband’s father, has joined the proceedings as an intervenor in order to protect his claimed property interests against the husband.
On 21 June 2022 the wife filed an Application in a Proceeding seeking procedural orders relating to disclosure of material by the second respondent. It is to this application that this judgment relates.
The other orders sought by the wife in the Amended Initiating Application filed 9 September 2021, relating to the substantive property proceedings between the parties, were not discussed at the hearing of the wife’s present Application in a Proceeding filed 21 June 2022. Given that the present application was relevant only to disclosure of material by the second respondent, both the husband and the Independent Children’s Lawyer did not seek to be heard on the matter and their appearances were excused.
Background
The second respondent alleges that in 1992 he provided $40,000 to the husband to enable him to purchase a property located at C Street, Suburb D NSW (“the Suburb D property”), with a large mortgage. This property was registered in the sole name of the husband. The husband continued to pay the mortgage payments, which the second respondent characterised as board. The second respondent claims that he is beneficially entitled to the Suburb D property. The second respondent says that it was purchased in the husband’s name because he believed he was unable to purchase property in Australia at that time, as the second respondent was then a citizen of Country Q.
The second respondent also alleges that in 2004 he lent the husband $1 million to enable the husband to purchase a property located at 2E Road, Suburb F NSW (“the Suburb F property”), which is registered in the husband’s sole name.
Thirdly, the second respondent alleges that in 2010 he lent the husband $266,000 to assist with the purchase of a property located at R Street, Suburb P NSW (“the Suburb P property”), which is also registered in the husband’s sole name.
The second respondent has obtained judgments against the husband in the State courts of New South Wales. Judgment was made by the Supreme Court on 8 February 2016, with respect to the alleged loan of $1 million for the Suburb F property, entered in the sum of $2,604,400.95 inclusive of costs. Judgment was made by the District Court of NSW on 13 July 2021, with respect to the alleged loan of $266,000 for the Suburb P property, entered in the sum of $708,987.19 inclusive of costs. The husband did not contest the state court proceedings and concedes these debts.
The wife’s position
The wife says that she was never made aware of the alleged loans or alleged equitable interest of the second respondent. The wife says that she is unaware of the second respondent being in paid employment at any time since she arrived in Australia in 2003. She also alleges that the husband would retain large sums in cash from operating his retail business, having counted money that was contained in a blue bag in the home on occasions between 2012 and 2014. The wife says that on the last occasion she was counting cash from the husband’s business in the home, she recalls having counted close to $200,000 present. The wife also alleges that the husband told her that he provided funds to his parents because the money that they received from the government is not enough. The wife says that the husband also said to her during the marriage that he is respected by relatives because he gave up his own dreams to provide for his parents, and brothers and sisters.
The wife alleges that the disclosure provided by both the husband and second respondent fails to identify the source of the funds said to be provided or lent to the husband. For example, with respect to the $40,000 utilised to purchase the Suburb D property, a bank statement has been produced showing that the sum of $40,000 was transferred out of a bank account operated by the second respondent with Westpac at the time of the purchase on 14 April 1991. However, the source of those funds appears to be a deposit made into that account only a few days earlier, on 6 April 1991. No explanation is provided as to the source of that deposit. Similarly, a number of receipts from the purchase of bank cheques have been discovered, which total approximately $1 million, dated at the relevant time that it was said the loan was made, including one very large cheque for $400,000 which appears to have been drawn on an S Bank account in the second respondent’s name. A partial bank statement was produced for this account, from 1994, showing a balance of a little over $4,000, far less than the amount later withdrawn by way of bank cheque in 2004 (a balance of a little over $4,000 in 1994, compared to withdrawals 10 years later of $770,000).
It appears uncontroversial that the second respondent received a disability payment in 1997 of $200,000 and in 2003 of $107,000; however, that remains around $700,000 less than the total amount said to have been lent by the second respondent to the husband.
A number of taxation assessments were produced by the second respondent showing that in various years between 2005 and 2010 the second respondent earned between $8,500 and $11,441 per annum. If these assessments are representative of his income and earnings, it is difficult to see how he accumulated the moneys necessary to lend such significant sums ($1.266 million) to the husband. Importantly, if the second respondent held such assets in the lead-up to 2004 (when the $1 million loan was made) and in August 2010 (when the loan for $266,000 was made), one would expect that the interest earned on bank accounts would have been in sums sufficient to be declared on tax returns. For example, in the 2008/2009 financial year, if the second respondent held $266,000 in a bank account that received interest at even a modest rate, it would account for almost the entirety of the taxable income shown on the second respondent’s taxation assessment for that year. It does not appear that he could have held significant assets in publicly listed companies, as the tax assessments show his tax offsets, and other credits included only between $152 and $198 dollars that could be franking credits.
In short, the material gives rise to real concerns as to the veracity of the second respondent’s claims of having had the financial capacity to lend to the husband the money alleged in these proceedings.
It is also significant that on a number of occasions when the husband completed statements of financial position for financiers, he appears to have included no reference to his alleged debts to the second respondent, and the amounts he provides for his real property assets appear to have included the Suburb D property. Indeed, a bank discovered a valuation report for that property on the mortgage application lodged by the husband.
Freedom of Information request
It is in this context that the applicant wife seeks to obtain details of the representations made by the second respondent to the Department of Social Security for the purpose of obtaining social security payments, and to the Australian Taxation Office for the purpose of income tax assessments.
The wife’s application is for mandatory injunctions requiring the second respondent to complete a freedom of information (FOI) request pursuant to Freedom of Information Act 1982 (Cth) directed to the Taxation Office, and an authority to release personal information directed to Centrelink with respect to social security information. The orders that she seeks are in the following terms:
1.That within 14 days of the date of these orders the [second] respondent must sign and provide to the applicant’s solicitors … the completed Centrelink form “Authority to release personal information personal injury, insurance, superannuation or other matter (Si039)” for the release to the applicant’s solicitors … of copies of all applications he has made for any Centrelink benefits for the period 1 January 1993 to the present together with copies of any supporting documentation submitted with those applications.
2.That the [second] respondent be solely responsible for any fees associated with Centrelink form “Authority to release personal information personal injury, insurance, superannuation or other matter (Si039)”.
3.That within 14 days of the date of these orders the [second] respondent must sign and provide to the applicant’s solicitors … the completed Australian Taxation Office “Freedom of Information (FOI) request” form for the release to the applicant’s solicitors … of copies of all taxation returns and Notice of Assessments for the second respondent for the period 1 January 1993 to the present.
4.That the [second] respondent be solely responsible for any fees associated with Australian Taxation Office “Freedom of Information (FOI) request” form.
5.That the [second] respondent pay the applicant's costs [of] and incidental to this application on an indemnity basis.
(Wife’s Application in a Proceeding filed 21 June 2022)
The orders sought by the wife are a circuitous route to obtaining copies of documents that would have once been in the possession of the second respondent. The primary method of obtaining such documents is through disclosure. The second respondent has not made disclosure of the documents, presumably because he has not retained copies.
The secondary method available to the wife to obtain the documents is to issue a subpoena to the entity that holds the documents, however this is prevented by the relevant legislative provisions governing the operations of social security and the tax office. Section 207 of the Social Security (Administration Act) 1999 (Cth) prohibits the production of documents by officers of the Department of Social Security to a court in the following terms:
An officer must not, except for the purposes of the social security law or the Royal Commissions Act 1902, be required:
(a) to produce any documents in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions.
A similar provision appears in the Taxation Administration Act 1953 (Cth), in Schedule 1, where clause 355-25 provides:
Offence--disclosure of protected information by taxation officers
(1)An entity commits an offence if:
(a) the entity is or was a * taxation officer; and
(b) the entity:
(i)makes a record of information; or
(ii)discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c)the information is * protected information; and
(d)the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
(2) An entity (the covered entity) is covered by this subsection in relation to protected information that relates to another entity (the primary entity) if:
(a) the covered entity is the primary entity's registered tax agent or BAS agent; or
(b) the covered entity is a legal practitioner representing the primary entity in relation to the primary entity's affairs relating to one or more taxation laws; or
(ba) the covered entity is a public officer (within the meaning of section 252 or 252A of the Income Tax Assessment Act 1936) of the primary entity; or
(c) the primary entity is an incapacitated entity and the covered entity is a representative of the incapacitated entity; or
(d) the covered entity is the primary entity's legal personal representative; or
(e) the covered entity is the primary entity's guardian where the primary entity is a minor or suffers from mental incapacity; or
(f) the covered entity and the primary entity are members of the same consolidated group or MEC group; or
(g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the approved form to act on that entity's behalf with respect to protected information ; or
(h) the covered entity is the registered tax agent or BAS agent of another covered entity mentioned in paragraph (c), (d) or (e) in relation to the relevant primary entity mentioned in those paragraphs; or
(i) the covered entity is a legal practitioner representing another covered entity mentioned in paragraph (c), (d) or (e) in relation to the affairs of the relevant primary entity mentioned in those paragraphs relating to one or more taxation laws.
As a result, orders or subpoenas directed at the relevant government agencies or their officers are effectively prohibited by the provisions: see Federal Commissioner of Taxation & Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154.
This leaves the wife with the final option of seeking orders requiring the second respondent complete the relevant forms to request information or obtain information pursuant to the Freedom of Information Act 1982 (Cth). Thus, the orders that she seeks are not orders directed to agencies or officers thereof, but merely orders directed to the second respondent, requiring him to request what information would otherwise be provided to him by those agencies.
It is not disputed that this court has power to make such orders relying upon the powers in s 114(3) of the Family Law Act 1975 (Cth): see Newport & Newport [2017] FamCA 117 and Mitty & Mitty [2008] FamCA 973. Even if the power did not derive from s 114(3) of the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia (Division 1) is now a court of equity as a result of s 9(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and can therefore exercise the general equitable powers to make orders for the purpose of discovery.
The second respondent also accepts that the existing case law supports the proposition that orders can be made requiring a person to complete the information request form for social security, as occurred in Wray & Wray [2007] NSWSC 164 (per Gzell J) and Tahana & Hines [2021] NSWSC 564 (per Cavanagh J).
The second respondent argues that the case law largely deals with the Social Security (Administration Act) 1999 (Cth) provisions and not the Taxation Administration Act 1953 (Cth) provision, with the exception of Newport & Newport [2017] FamCA 117 where the Deputy Chief Justice made orders of this type with respect to the Tax Office. As is apparent from the reasons for judgment in Newport, the respondent in that matter did not raise the argument that the Taxation Administration Act 1953 (Cth) provision preventing disclosure of information is in slightly different terms to that of the Social Security (Administration Act) 1999 (Cth) provision, in that a penalty provision is contained within the section. The Social Security (Administration Act) 1999 (Cth) provision merely prohibits, using the words “must not”, whereas the Taxation Administration Act 1953 (Cth) provision uses the words “commits an offence”. However, s 207 of the Social Security (Administration Act) 1999 (Cth) must be read in context. Significantly, s 204 of the Social Security (Administration Act) 1999 (Cth) provides for an offence of breaching the section punishable by imprisonment for up to two years. In these circumstances, there appears to be no relevant difference in the legislative provisions as both Acts provide for penalties for non-compliance with the provisions.
The purpose of the provision, as set out in the explanatory memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010, “is to protect the confidentiality of taxpayer information. Compliance with taxation laws could be adversely affected if taxpayers thought that their information could be readily disclosed”: at cl 1.15. However, there are a number of statutory exceptions, including provision of information to the Australian Securities and Investments Commission if it relates to a serious offence. In the explanatory memorandum, it was said that when government made policy decisions weighing the need for privacy against the need for disclosure that:
1.17 In determining this balance, a range of factors may need to be considered. These include
• the purpose for which the information is to be used;
• the potential impact on the individual from the disclosure and subsequent use of the information;
• the nature and amount of information likely to be provided under any new provision;
• whether the information can be obtained from other sources;
• whether the new disclosure would represent a significant departure from existing disclosure provisions; and
• whether not providing the information would significantly undermine the ability of Government to effectively deliver services or enforce laws.
Whilst these considerations related to policy development, they provide some assistance in identifying consideration relevant to the discretion as to whether or not to make the orders requested.
In this case, orders for such information are likely to assist with the just, quick and cheap disposition of proceedings for the same reasons identified by Harrison J in El Helou v Smith [2009] NSWSC 741 at [23], where his Honour said:
Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion. In the absence of even the hint of some proper reason, (for example but without attempting to be exhaustive) whether founded upon a statutory prohibition or an allegation of prejudice or the demonstration of some legitimate forensic disadvantage or claim of confidentiality or the assertion of privilege, it is difficult to discern any reason why it is not in the interests of the just, quick and cheap disposition of the proceedings to make an order in the terms sought by the defendant. It is also appropriate to bear in mind that despite the plaintiff’s attitude to the provision of the requested authority, it is not out of the question that the material that is sought by the defendant may turn out to be wholly supportive of the plaintiff’s claims in these proceedings. Such an outcome would have potential beneficial consequences for the just, quick and cheap resolution of this case.
The information sought in these proceedings is likely to be information that the second respondent provided to the agencies, and would have had to disclose in the proceedings had he kept records of what he provided to the Tax Office and Social Security. The information is not presently available from other sources. The orders sought are not a significant departure from the approach of the court with respect to such provision prior to the amendments in 2010. There is no reason to suspect that the limited orders sought in this case would undermine the ability of Australian government to deliver services or enforce the laws.
The second respondent also argued that the court ought not to make such an order unless there is a legitimate forensic purpose in obtaining the documents. That proposition cannot be disputed: see generally Perish & R [2015] NSWCCA 237 at [56]. In Perish’s case, the court described the test for a legitimate forensic purpose as being satisfied where the documents were being sought not merely “to discover whether [the applicant] has a case at all”. At [57] of that decision, it was accepted that the applicants must establish that it was “on the cards” that the documents would materially assist their case. The phrase “on the cards” comes from Gibbs CJ in Alister v R [1984] 154 CLR 404; [1984] HCA 85, and is in contrast to the phrase often used to describe impermissible discovery requests as being “a mere fishing expedition”.
It appears that the documents are likely to provide evidence that will materially assist in the identified issues in the present proceedings, as they will set out the representations made by the second respondent to the Department of Social Security as to his assets and income, and his representations to the Taxation Office with respect to income. This information will be materially relevant to a determination as to whether he held the amounts of funds sufficient to have made the loans to the husband.
Counsel for the second respondent argues that such documents would only go to credit and, therefore, be useful only for the purpose of cross-examination on credit issues. I do not accept that the documents in this case would only go to the credibility of the second respondent. Representations by the second respondent to Social Security and the Tax Office go directly to his financial circumstances at the time. The second respondent's financial circumstances are the central issue in the present dispute between the wife, the husband, and the second respondent, namely, whether the second respondent was able to advance the funds alleged, given his financial resources and income. In this sense, the relevance of the documents is similar to those sought in Tahana & Hines [2021] NSWSC 564, where the documents were considered relevant as they went to the plaintiffs earnings, where his earning capacity was a central issue in the proceedings (see [21]).
I also note that Harper J in Stopford-Molloy & Molloy [2022] FedCFamC1F 118 accepted that documents of this type would be relevant where they indicated that a husband had access to assets and financial resources through companies associated with his father, in the context of proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) where his Honour said at [10]:
I accept the documents sought have apparent relevance because the wife makes detailed claims that the husband has access to assets and financial resources, through companies associated with his father, as part of a broad claim for property adjustment pursuant to s 79 of the Family Law Act 1975. The wife also seeks child support departure orders under the Child Support (Assessment) Act 1989. The documents created or relied upon by the husband in applying for Centrelink or JobKeeper benefits may bear on the husband’s financial circumstances, including the possibility that the husband made an admission in such documents.
I am not persuaded that in this case the documents merely go to credit rather than addressing a central issue in the proceedings.
Finally, it was argued that the period of time sought to be covered by the order was oppressive as it covers such a lengthy period. Notably, however, the second respondent is only required to fill out an application form with respect to each of the offices, and not required to locate the documents himself. The wife conceded in argument that she should pay the costs of the applications at first instance. The result is that this cannot be considered to be an onerous task being placed upon the second respondent, whatever the time period to be covered by the FOI or information request. Importantly, given the unusual circumstances of this case, the lengthy period of records are likely to be directly relevant to the central issues.
I am therefore persuaded that it is appropriate to make orders 1 and 3 as sought by the wife, orders 2 and 4 of those sought should be amended for the applicant wife to meet the fees associated with the application forms at first instance, and that the question with respect to those costs otherwise be reserved to the trial judge.
Whilst the wife seeks the costs of bringing this application on an indemnity basis, it does not appear arguable that the circumstances in these proceedings could justify an indemnity costs order under s 114 of the Family Law Act 1975 (Cth). The relevance of the documents to the outcome of the proceedings following their production will be significant matters when considering the question of the costs of this application. In those circumstances, it is appropriate that the costs of this application be reserved to the trial judge.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 22 July 2022
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