Iannello & Iannello

In the Family Court of Australia, Judge C. E. Kirton QC considered objections to subpoenas issued by both the husband and wife. The husband had sought telephone records of the wife, purportedly to demonstrate his primary care of the children during the relationship. The wife had issued a subpoena seeking information from the husband's solicitors concerning his injury.

The court was required to determine whether the husband's subpoena was issued for a proper purpose and constituted an abuse of process, given that the amount of time each parent spends with children does not solely define the nature of their relationship. The court also had to consider the wife's subpoena, particularly in light of the concession that many of the documents sought from the husband's solicitors were subject to legal professional privilege.

The court found that the husband's subpoena was issued for an improper purpose and was an abuse of process, ordering it to be set aside. Regarding the wife's subpoena, the court determined that rather than compelling the production of documents subject to privilege, an affidavit from the partner at the husband's solicitors firm who conducted his compensation claim would be more appropriate. This affidavit was to depose to specific matters concerning the commencement, progress, and financial aspects of the compensation claim, and to annex all relevant reports. The wife's subpoena was otherwise set aside.

The court ordered that the husband's subpoenas be set aside. In relation to the wife's subpoena, the court ordered that within 28 days, the husband's solicitors file and serve an affidavit from the partner conducting the husband's compensation claim, detailing the claim's status and financial aspects, and annexing all relevant reports. The wife's subpoena was otherwise set aside, and the parties' costs were reserved.