Jarmon & Tannen

[2024] FedCFamC2F 479

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jarmon & Tannen [2024] FedCFamC2F 479

File number(s):	MLC 7298 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	12 April 2024
Catchwords:	FAMILY LAW – interim order – directions hearing – looming final hearing – evidence not filed –  where the respondent seeks leave to extend dates for filing to rely upon further documents for trial – dispute as to relevance of information – sought by disclosure and subpoena – disclosure ordered – leave granted for further subpoenas to be filed – extension of filing dates for final hearing
Cases cited:	Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Division:	Division 2 Family Law
Number of paragraphs:	12
Date of last submission/s:	12 April 2024
Date of hearing:	12 April 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Mort
Solicitor for the Applicant:	Wightons Lawyers
Counsel for the Respondent:	Ms Swart
Solicitor for the Respondent:	Forte Family Lawyers

ORDERS

MLC 7298 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JARMON

Applicant

AND:

MR TANNEN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	12 APRIL 2024

THE COURT ORDERS THAT:

1.All relevant times for service, listing and hearing of the Husband’s Application in a Proceeding filed on 5 April 2024, sealed on 8 April 2024, be abridged.

Filing of documents

2.The Husband be granted leave to file and serve an Amended Statement of Claim by 4pm on 12 April 2024.

3.The Wife be granted leave to file and serve an Amended Defence to the Husband’s Amended Statement of Claim within 10 days of the date of service of the Husband’s Amended Statement of Claim.

4.Pursuant to rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the times fixed by Orders 2, 3 and 5 of the Orders made on 23 January 2024 be extended.

5.The Husband (who seeks to have the Financial Agreement set aside) be granted leave to rely upon the following documents at trial:

5.1Further Amended Response to Initiating Application filed and served on 9 April 2024;

5.2Trial Affidavit of Mr Tannen filed and served on 9 April 2024;

5.3Affidavit of Ms B filed and served on 9 April 2024;

5.4Amended Financial Statement filed and served on 11 April 2024;

5.5Affidavit of Mr C filed and served on 11 April 2024; and

5.6Affidavit of Ms D filed and served on 11 April 2024.

6.The Wife file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 4.00pm on 22 April 2024.

7.By 4.00pm on 24 April 2024 each party file and serve an outline of case document with respect to the issues for determination including the following:

7.1A list of the documents to be relied upon;

7.2The main issues in dispute;

7.3A list of authorities relied upon; and

7.4A statement of the precise orders sought.

8.The parties be restrained from filing any further documents in this matter without leave of this Honourable Court.

Subpoenas

9.Pursuant to rule 6.27(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Husband be granted leave to request the issue of a subpoena to Ms H of J Lawyers to give evidence at the final hearing.

10.Pursuant to rule 6.29(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Husband be granted leave to serve a subpoena on E Pty Ltd at least 5 business days before production of documents under the subpoena is required.

Disclosure

11.On or before 5.00pm Wednesday, 17 April 2024, the Wife provide to the Husband copies of the following documents by way of her further disclosure:

11.1Documents evidencing any and all drawings the Wife received from any entity including her F Company business for the period 1 January 2022 to date;

11.2Documents evidencing any loan, finance arrangement and/or lease entered into by the Wife and/or any entities associated with the Wife including the F Company business for the period 1 January 2022 to date;

11.3Documents evidencing all monies paid to the Wife including from the business F Company and associated entities including details of any credits standing to the benefit of the Wife for the period of 1 January 2022 to the current date;

11.4Income Activity Statements issued since 1 July 2022;

11.5Banking records including bank statements, mortgage statements, credit card statements, deposit/withdrawal records since 1 January 2022 to date for all accounts to which the Wife has, or had access to;

11.6All payslips received by the Wife’s company and/or the Wife from 1 January 2022 to date;

11.7Income tax returns and Notices of Assessment for financial years ending 30 June 2020, 30 June 2021, June 2022 and 30 June 2023;

11.8Phone bills for the phone number … (being the Wife’s phone number) for the period 1 January 2022 to 1 July 2022 AND the Wife be at liberty to redact or black out the phone numbers that are not calls to the Husband’s mobile phone number ending in … but provided that the Wife retains an unredacted copy of that phone bill (for reference in the event that it is relevant);

11.9All documents relevant to the Wife’s work with and/or for E Pty Ltd, either personally or through an entity, including the Wife’s employment or other contract documenting the nature of the relationship.

12Save as provided in these orders, neither party is to file any further documents without the leave of the Court.

Costs

13The costs of both parties be reserved.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR EX TEMPORE JUDGMENT

1. The matter of Jarmon & Tannen comes before me on very short notice.  I have been assisted by counsel today.  The circumstances are that Ms Jarmon seeks to enforce a binding financial agreement dated mid-2022 and Mr Tannen seeks to set it aside.  There is a trial to commence before me on 29 April 2024 and there has been partial cooperation between solicitors to ensure that the matter is able to proceed. 

   Background

2. The applicant wife complains that the late filing of the husband’s material is unfair to her and describes it in the context of what she alleges to be financial abuse by him.  Nonetheless, in the choice between two less than ideal circumstances, one being an adjournment so that she has more time to consider the material and vacating the trial date, or proceeding with the trial date with a shorter time to prepare material, the wife, with the efficiency of her lawyers, chooses the latter.  That is, to keep the trial date.

   Issue

3. The real issue for me to determine – and the reason the matter came before me today, was because there was no previous agreement as to whether;

   ·Mr Tannen should have leave to file and serve an amended statement of claim (he being previously ordered to file a statement of claim.); and

   ·Ms Jarmon should make financial disclosure.

4. Some issues have been resolved by the solicitors for the respondent to the setting aside application, embracing a significant workload to come to grips with the material in a shorter time.  The real issue is that it appears undisputed that the respondent seeking to set aside the application has not disclosed financial documents or information.  Relevant sections of the controversial agreement are as follows:[1]

   [1] Annexed to the Wife’s affidavit of 30 June 2023

   ...

   5.The parties acknowledge that they have knowledge of the financial affairs of the other and that they have had an opportunity to fully investigate the financial circumstances of the other party including, but not limited to, the following:

   5.1They have each been fully informed of the wealth, property, estate and income of the other and that all questions asked of the other have been satisfactorily answered; and

   5.2      They are each fully aware of their respective rights.

   6.Neither party required the other to make further disclosure of their financial positions.

   …

   11.It is agreed by the parties that in the event of the breakdown of the marriage evidence by Separation as set out in paragraph 8 above, the property and financial resources of the parties will be divided as follows.

   …

   11.8The parties will do all acts and things and sign all documents necessary to:

   11.8.1Transfer all of [Mr Tannen]’s right, title and interest in [Motor Vehicle 1] to [Ms Jarmon]

   11.8.2Transfer all of [Ms Jarmon]’s right, title and interest in [Motor Vehicle 2] to [Mr Tannen]; and

   from the date of the transfers the parties will be responsible for all costs associated with the said motor vehicles including but not limited to insurance, registration and servicing expenses save that [Ms Jarmon] will continue to have access to the fuel card in [Mr Tannen]’s name until such time as she is earning at least $100,000 nett per annum or she is in a de facto relationship which continues for at least 12 months.

   …

   24.      That for the purposes of Section 90C(2)(b) and 90E of the Act.

   …

   24.2The parties each acknowledge that they have the capacity to support themselves having regard to their respective incomes and they are each able to, and do, support themselves without the benefit of an income tested pension, allowance or benefit.

   24.3[Mr Tannen] will pay to [Ms Jarmon] periodic spousal maintenance at the rate of $800 per week commencing from the date of this agreement and said periodic spousal maintenance payments will continue until [Ms Jarmon] is earning an income which is at least $100,000 nett per annum.

   24.4In addition to the periodic spousal maintenance referred to at clause 24.3 hereof [Mr Tannen] will pay the following expenses for [Ms Jarmon]’s benefit and by way of non-periodic spousal maintenance:

   24.4.1Private health insurance at the current lever of cover or higher; and

   24.4.2All outgoing and expenses associated with the [Suburb G] property including but not limited to home and contents insurance, council rates and utilities

   24.5[Mr Tannen] will continue to pay the non-periodic

5. The agreement has the clause that the spousal maintenance obligation is to continue until the respondent has an income “which is at least $100,000 net per annum”.  The respondent seeks to set aside the agreement on a number of grounds including undue influence and unconscionable conduct. 

6. The Respondent also seeks, effectively, a declaration that the agreement is void or voidable or unenforceable by reason of uncertainty.  It is contended by counsel for the respondent to the setting aside application that her financial information in the period of about 6 months prior to the signing of the agreement and since is not relevant to the setting aside application. 

7. In Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407 her Honour observed.

   14.In the recent case of Martin & Martin and Anor [2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28:

   28.In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R [1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist. “Fishing” can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one. Here, NFL says that it knows what it is looking for even if it cannot specifically point to the exact sequence of events. It submits that the documents pursued will provide the answers to fill in the missing details as distinct from providing it with a case. As I understand NFL’s submission, this is an extension or further step based on that information. As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said:

   39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:

   (1)       The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and

   (2)       If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.

   40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection".

   41. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case".

   42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:

   Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial.  It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so.  What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.

   29.Counsel for the objector did not dispute that what I had there said summarised the law. In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed:

   49.The question of what is relevant takes on significance.  The objective must be to assist the parties and the court in the determination of the issues in dispute.  How does one determine that at an early stage?  This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:

   The degree of relevance for this purpose is not high:  the inspecting party need only show a legitimate forensic purpose in the inspection.  A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.

   50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers.  It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.

   51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.

8. I am satisfied that that is an appropriate test for the issue of relevance to the disclosure obligations. 

   Conclusion

9. I am satisfied that the issue of the income of the respondent to the application and the financial circumstances of the respondent in the period when the information is pressed may well be relevant and may well be information that will assist my determination of the matter.  Whether that assists Ms Jarmon’s case or assists Mr Tannen’s case, I don’t know yet, but I am satisfied that that may well be relevant.

10. In regard to the telephone issue, it’s now arguably belatedly, but at least now, common ground that the telephone records available to Mr Tannen do not disclose who called him on particular dates and times.  It’s part of his case that the extent and frequency of telephone calls is relevant to his claim of undue influence and unconscionability.  Whether or not the telephone records assist that case or not, I don’t yet know.

11. I am satisfied that is sufficiently relevant to compel Ms Jarmon to produce those documents, albeit with the qualification that she is at liberty to redact out all and any phone numbers other than the husband’s phone number, which is the sole purpose of which this inquiry is made.  I take into account the issue of the privacy of Ms Jarmon and her privacy is a significant matter to me. 

12. Nonetheless, the matters that are going to be explored in the trial invade the privacy of both Mr Tannen and Ms Jarmon to a significant degree.  The parties were, at least at some of the relevant time, in the one household.  So I do take that issue into account.  I am satisfied that that information that is sought may be information that will assist me to resolve the competing claims at the Final Hearing.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       17 April 2024