Janvier & Domas (No 2)
[2025] FedCFamC1F 83
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Janvier & Domas (No 2) [2025] FedCFamC1F 83
File number(s): HBC 523 of 2023 Judgment of: WILLIAMS J Date of judgment: 18 February 2025 Catchwords: FAMILY LAW – Interim hearing – Application for review of orders made by a registrar pertaining to six subpoena – Weighing the applicants concerns about preservation of confidentiality with the respondents’ legitimate forensic interests – Order to produce subpoena – Leave granted to inspect and copy documents produced pursuant to subpoena. Legislation: Family Law Act (Cth) 1975 pt XIVB, s 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.36, 6.37
Cases cited: Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Sadek and Ors & Hall and Anor (2015) FLC 93-634; [2015] FamCAFC 23
Sitwell & Sitwell (2014) 51 Fam LR 159; [2014] FamCAFC 5
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 6 February 2025 Place: Melbourne The Applicant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
HBC 523 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JANVIER
Applicant
AND: MS DOMAS
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Leave is granted to the respondent to rely upon the written submissions filed 2 December 2024, notwithstanding they were filed outside the time for filing set out at Order 3 dated 7 November 2024.
2.Leave is granted to the applicant and the legal representatives on record for the respondent to inspect and copy documents produced and contained in subpoena packets S42, S43, S44, S45 and S47 (“the bank documents”).
3.Paragraph 2 of the schedule to the subpoena issued on behalf of the respondent on 11 October 2024 to the director, J Pty Ltd is varied to read as follows:
(a)Copies of the following documents held by you in relation to J Pty Ltd and their related entities for the period from 1 January 2017 to date;
(i)Tax returns and notices of assessment:
(ii)Business activity statements; and
(iii)Profit and loss statements.
4.Not later than fourteen (14) days after the date of these orders, the named party to the subpoena issued to the director, J Pty Ltd filed on 11 October 2024 must comply with the order to produce documents contained within the subpoena.
5.Upon production leave is granted to the applicant and the legal representatives on record for the respondent to inspect and copy documents produced and contained in subpoena packets S46 (“the J Pty Ltd documents”)
6.The six (6) Notices of Objection – Subpoena each filed on 4 November 2024 are dismissed.
7.At the end of the appeal period following the finalisation of the proceedings the parties and legal representatives do all things necessary to ensure all copies of the subpoenaed documents are destroyed and permanently deleted from any storage or retrieval system (however held by the lawyer including by email, cloud storage, hard copy or otherwise).
8.Until further order, the wife be and is herby restrained from using any document produced pursuant to subpoena, for any purpose other than the proceedings in suite HBC523/2023.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Janvier & Domas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
Before the Court is an Application for Review of orders made by a Judicial Registrar on 4 December 2024 pertaining to six subpoenas, which were subject to Notices of Objection.
The applicant and the respondent are embroiled in property proceedings which were commenced by the husband’s Application for Final Orders filed on 22 June 2023. They were married in 2010, separated in December 2020, and divorced in 2022.
Since the commencement of the proceeding there have been countless interim disputes and have both parties have filed an inordinate number of subpoenas.
The six subpoenas subject to the current objection, were filed by the respondent wife (“the wife”) on 11 October 2024, seeking production of financial information on or before 6 November 2024. On 4 November 24, the applicant husband (“the husband”) filed a Notice of Objection to all six subpoenas.
The subpoenas filed by the wife fall into two categories. First, five subpoenas were addressed to the following banks:
(a)ANZ Bank;
(b)Commonwealth Bank of Australia;
(c)H Bank;
(d)National Australia Bank; and
(e)M Limited.
Secondly, a subpoena was addressed to the company, J Pty Ltd, which operates a business trading as N Company. Whether that business is to be included in the asset pool is a contentious issue between the parties, which will be determined at trial.
During the hearing, I was advised by the wife that she was formerly a shareholder of J Pty Ltd, but the husband had unilaterally transferred her shares to himself without her consent. The husband denied he had acted improperly and submitted in 2023 he had “acted in accordance with ASIC policy” and “did a 484M Form”. The husband’s actions and the consequences which flow, are a matter for trial. There were no submissions about who were the directors.
All documents required to be produced by the banks, pursuant to the subpoenas, have been produced to the registry in subpoena packets referred to as S42, S43, S44, S45 and S47 (“the bank documents”). No documents have been produced by J Pty Ltd (S46).
Documents relied upon by the parties
The husband relied upon the following documents:
(a)Application for Review filed 5 December 2024;
(b)Two affidavits sworn by the husband on 5 December 2024, which were apparently filed on 29 January 2025;
(c)An Interim Family Violence Order filed in 2025.
The wife relied upon the following documents:
(a)Affidavit of the wife filed on 4 February 2025 (the husband confirmed he had read and had translated the affidavit); and
(b)Written submissions filed 2 December 2024.
The husband objected to the wife’s reliance on the written submissions because he asserted “they were not true and were misleading” and claimed the submissions had not been uploaded to the Court file until February 2025.
Leave was granted to the wife to rely on her written submissions, as it was apparent from my examination of the electronic court file that submissions were filed on 2 December 2024, and not in February 2025, as claimed by the husband. Furthermore, order one of the orders subject to review, granted leave to the wife to rely upon the written submissions filed 2 December 2024, notwithstanding they were filed outside the time for filing set out in order 3 of 7 November 2024. I am therefore able to confidently infer that the husband was aware of the submissions, at least as of 4 December 2024, because objection to the wife’s reliance on them was made at that hearing. I permitted the husband to make oral submissions in response to the written submissions, at the conclusion of the wife’s oral submissions.
Both parties made oral submissions in addition to reliance on the documents referred to above.
Husband’s submissions
The husband’s initial objections to the subpoenas were difficult to distil into recognised and legitimate principles applicable to subpoena objections; see Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 at [25]-42]. Doing the best I can, however, the objections to the validity of the subpoenas seem to be as follows:
(a)The documents sought by the bank subpoenas have already been produced during the discovery process, and the subpoenas are “duplicative and unnecessary”;
(b)The apparent relevancy of the bank documents pertaining to J Pty Ltd, and the documents sought to be produced from the company, because the business operations of N Company, commenced subsequent to separation and financial information of the company was therefore irrelevant to the substantive proceedings.
Additionally, the husband claimed by filing the subpoenas, the wife was in breach of the family violence order and her actions constituted financial coercion.
In relation to the subpoena addressed to J Pty Ltd, the husband also claimed the breadth of documents was unduly onerous and would require the director of J Pty Ltd (most probably the husband) to compile and produce the documents sought, causing financial hardship, and exacerbation of the alleged wife’s economic abuse of him.
The husband also objected to the wife inspecting and copying any documents produced in response to the subpoena addressed to J Pty Ltd and the bank documents of the company. As referred to above, he asserted the documents were not relevant because the business, N Company, was not a marital asset. Additionally, he claimed that allowing inspection of the documents would risk the wife gaining access to sensitive business records, including proprietary financial information, internal strategies, and client data, which could be exploited to further harm the applicant’s business interests. He alleged the wife had a documented history of sharing proprietary information with competitors of the business which had resulted in a significant decline in the turnover of N Company.
He also submitted the wife had removed $110,000, presumably from the bank account of the business, and she could not be trusted to act in accordance with the best interests of the business.
Wife’s submissions
In her oral submissions the wife relied upon her written submissions filed 2 December 2024, and additionally submitted she required the information which would be in the documents produced pursuant to subpoena because of the husband’s failure to provide financial disclosure. By way of example, the husband had failed to produce bank statements and had instead produced a screenshot of the requested bank accounts.
Whilst the husband submitted the subpoenas should not displace the discovery process, the husband himself had filed 22 subpoenas addressed to the wife, her friends, and former employer seeking financial disclosure during the discovery process. She had not objected to any of the subpoenas and had produced the required documents “because she had nothing to hide”.
She agreed to limit the breadth of the subpoena addressed to J Pty Ltd in accordance with paragraph 3 of the orders made 4 December 2024, which would address the husband’s concerns about the asserted breadth of the documents required to be produced.
The wife submitted she required the documents in the subpoena addressed to J Pty Ltd for the following reasons:
(a)she had previously been a shareholder of the company prior to the husband unilaterally changing the share structure in 2023, when he transferred her shares to himself without her knowledge or consent;
(b)to substantiate, or otherwise, the husband’s claims that he was suffering financial difficulty, which was contrary to his purchase of a block of land opposite his partner’s house for $280,000, the title of which demonstrated there is no mortgage registered against the property; and
(c)to investigate her concerns that the husband’s partner had been overpaid during her suppose employment by N Company.
She submitted all of subpoenas which had been filed “were quite standard” and would enable the Judge to understand the financial circumstances of the parties.
In response to the husband’s claims about production of documents from J Pty Ltd, the wife denied the allegations of the husband that she had removed funds from the company or that she had shared any confidential information with competitors.
Husband’s submissions in reply
In response to the wife’s submissions, the husband submitted:
(a)he had made fulsome and detailed discovery of his financial position, and the subpoenas filed by the wife were filed a month or so prior to the final hearing, with the intention to delay the final hearing;
(b)N Company was bought five months after separation, and had nothing to do with the marital property dispute;
(c)bank statements of J Pty Ltd disclosed important business information about clients and suppliers, which the wife was likely to provide to competitors, as she had done in the past which resulted in a 50 per cent reduction in sales of the business;
(d)he had purchased the block of land with a loan from a friend because he was unable to obtain a bank mortgage, because all the marital finances had previously been controlled by the wife.
Subsequent to hearing each parties submissions, and noting the wife’s consent to amend paragraph 2 of the schedule to the subpoena addressed to J Pty Ltd, and the wife’s willingness to agree to an injunction restricting her use of the documents to the proceedings alone, I asked the husband whether he would be prepared to withdraw his objections to the various subpoenas, and to the inspection and copying of the documents to be produced by J Pty Ltd.
The husband was agreeable to the amendment of paragraph 2 of the schedule of the relevant subpoena, limiting the wife’s access to all documents to inspection only, and the making of an injunction restricting the wife’s use of the documents to the extant proceedings. Therefore, the only remaining issue to be determined was whether the wife should be permitted to copy the documents, or restricted to inspection only.
The wife submitted she should be permitted to copy the documents produced because they would be voluminous, and it would be unrealistic to be limited to inspection only, and she required the documents to ascertain the extent of the marital asset pool. Furthermore, she had no intention of using the documents other than as provided in the injunction, and she would consent to, and would abide by the court order.
The husband did not make any further relevant submissions, other than repeating his claim there was a risk the wife would disclose the confidential information to competitors.
DISCUSSION AND CONCLUSION
In Sadek and Ors & Hall and Anor [2015] FamCAFC 23 (“Sadek”) at [41]-[43] the Full Court of the Family Court identified a number of restrictions upon the use of documents obtained pursuant to a subpoena.
These include Part XIVB of the Family Law Act (Cth) 1975 (“the Act”) (previously s 121 of the Act), Rule 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the Harman principle (flowing from the decision of Harman v Secretary of State for the Home Department [1983] 1 AC 280), and the imposition of injunctions.
Part XIVB of the Act makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Rule 6.36 of the Rules restricts the use of documents produced pursuant to a subpoena for production of documents, only for the purposes of the proceeding, and mandates that the contents of documents so produced must not be provided to any other person without the court’s permission.
In Sadek, at [43] the Full Court said, in relation to the Harman principle:
43.Thirdly, there is an implied undertaking as to the use of documents produced under compulsion. This flows from the decision of Harman v Secretary of State for the Home Department [1983] 1 AC 280 which was described by the High Court [of Australia] in Hearne v Street (2008) 235 CLR 125 at 154 as being (footnotes omitted):
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
At [44], the Full Court further referred to the use of injunctions in appropriate cases to further restrict the use of material, and at [14] referred to the requirement for the need to provide special circumstances before making an injunction under s 114 of the Act; see Sitwell & Sitwell (2014) 51 Fam LR 159
In this case, there were no readily identified special circumstances warranting the making of such an injunction, other than the wife proposed the injunction, and accordingly I will make the relevant order.
The husband’s claim that the wife had removed funds from the business account was irrelevant to the issue currently for consideration, and therefore the only relevant submission was the mere assertion that the wife had previously provided confidential information pertaining to the business.
Turning now to what the husband asserts comprises the confidential information.
At paragraph 6 of the affidavit sworn 5 December 2025, the husband identifies the asserted “sensitive and proprietary business information” as “financial records, client lists and operational strategies critical to maintaining competitive advantage in the logistics industry”.
At paragraph 7, he asserts the disclosure of such document’s risks compromising the competitive position of J Pty Ltd, as demonstrated by the wife’s prior misuse of confidential business information, which caused a 50 per cent reduction in company turnover between 2021 and 2022, and that there is a risk of further misuse which would cause irreparable damage to the business.
The wife denied that she had shared any confidential information to any competitors. That disputed fact is a matter for trial, and not to be determined in this application. It would seem unusual and contrary to personal interests, that a party claiming an interest in an asset which she asserts should be included in the asset pool, would willingly and knowingly seek to reduce its value prior to a trial.
Turning to the reduced breadth of the subpoena to J Pty Ltd, the documents now to be produced, which has been agreed by the parties, do not include client lists or operational strategies and are limited to financial documents. It would seem unlikely Tax Returns, Notices of Assessment, BAS statements, and Profit and Loss Statements would disclose any client details or business strategies.
Similarly, the bank statements of J Pty Ltd, produced pursuant to the five bank subpoenas, would be unlikely to contain the type of information ostensibly causing concern to the husband.
I have weighed the husband’s concerns about preservation of confidentiality about the business financial records, with the wife’s legitimate forensic interest in those documents, and the practical problems which would no doubt arise if the wife were restricted to inspection only.
I have considered the relevant section of the Act, the restriction of use of such documents as per r 6.37 of the Rules, the Harman principle, the reduction of breadth of documents to be produced by J Pty Ltd, and the injunction which I propose to make, and determine that all factors cumulatively provide protection against possible dissemination of the documents by the wife. To allow the wife to copy the documents is an entirely appropriate compromise between the rights of the wife, the husband, and the company.
I will therefore make orders restricting the breadth of the subpoena to J Pty Ltd, provide a timeframe for production of the documents by J Pty Ltd, allow inspection and production of all documents produced pursuant to all six subpoenas and an injunction restraining the wife’s use of the documents.
There were no submissions about the timeframe for production of documents by J Pty Ltd, and I consider 14 days to be sufficient time. The husband and the company have been on notice about possible production of the documents since November 2024, when the subpoenas were filed, and a further 14 days is sufficient time to produce the documents.
I will also make an order providing for the destruction of documents produced pursuant to these subpoenas at the expiration of the appeal period following finalisation of the proceedings between the parties, to eliminate the possibility of future ongoing disputes about use of documents.
I will make the relevant orders.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 18 February 2025
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