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Kehoe & Seden (No 2)

Kehoe & Seden (No 2)

Case [2022] FedCFamC1F 346 17 May 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kehoe & Seden (No 2) [2022] FedCFamC1F 346

File number(s): SYC 7833 of 2018

Judgment of: HARPER J

Date of judgment: 17 May 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where Applicant Wife issued two subpoenas – Where both subpoenaed recipients filed Notice of Objection – Where husband makes submissions in support of objections – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to issue in proceedings – Relationship between “apparent relevance” and “legitimate forensic purpose” –
Where the third parties contend that the impugned paragraphs in subpoenas constitute an abuse of process and have no apparent relevance to issues in proceedings – Where there is a large group of corporations and trusts – Apparent relevance to interests of discretionary objects – Subpoena must not be too vague or oppressive – Impermissible to require recipient to form a view as to what must be produced in compliance – Where several paragraphs in subpoena require recipient to interrogate witness as to which documents relied upon in an affidavit – Objection to one subpoena to be dismissed – Orders for specific paragraphs of the schedule to the second subpoena to be set aside.

Legislation: Family Law Act1975 (Cth) Pt VIII, ss 79, 106B

Cases cited:
A v Z (2007) 212 FLR 255; [2007] NSWSC 899

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Commissioner for Railways v Small (1938) 38 SR NSW 564

D v Australian Financial Security Authority [2017] NSWCA 50

Dovgan & Dovgan [2021] FamCA 306

Kerr & Christie [2021] FedCFamC1F 313

Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465

Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303

McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998

Mulley & Marney v Manifold (1959) 103 CLR 341; [1959] HCA 23

Portal Software International Ltd v Bodsworth [2005] NSWSC 1115

R v Ridgeway (1998) 72 SASR 73; [1998] SASC 6963

Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896

Read v Chang (2010) 44 Fam LR 198; [2010] FamCA 876

Rigby v Kingston (No 4) [2021] FamCA 501

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Seden & Kehoe [2020] FamCAFC 294

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

T & D [2006] FamCA 1560

Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90

Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476; [2011] FamCAFC 159

Woodcock & Woodcock (2021) 64 Fam LR 489; [2021] FedCFamC1F 88

Division: Division 1 First Instance

Number of paragraphs: 56

Date of last submission/s: 16 March 2022

Date of hearing: 21 March 2022

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant:

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 Kehoe & Seden (No 2)

Details

AGLC: Kehoe & Seden (No 2) [2022] FedCFamC1F 346
Case: [2022] FedCFamC1F 346
Decision Date

CaseChat Overview and Summary

In the matter of Kehoe and Seden, Harper J of the Federal Circuit and Family Court of Australia addressed a dispute between Ms Kehoe (the wife) and Mr Seden (the husband), concerning financial proceedings related to property interests and spousal maintenance. The wife sought property adjustment orders and spousal maintenance, claiming the husband had significant financial resources within a group of entities known as the Seden Family Group. In response, the husband and third-party entities objected to two subpoenas issued by the wife, arguing that the subpoenas were overly broad and lacked apparent relevance to the issues in the proceedings.

The court examined the principles governing subpoenas, emphasizing that the party issuing the subpoena must demonstrate that the documents sought have "apparent relevance" to the issues in the proceedings. The court noted that while the concept of "apparent relevance" is broad, it requires a plausible connection to the issues in the case. The court further held that it is impermissible to require the recipient to form a view as to what must be produced in compliance with the subpoena.

Regarding the first subpoena issued to Mr Seden, the court found that the documents sought had apparent relevance to the husband's interests in the Seden Family Group and dismissed the objections to that subpoena. As for the second subpoena issued to DD Pty Ltd, the court set aside specific paragraphs that were either too vague or oppressive, or lacked apparent relevance to the issues in the proceedings. The court concluded that the subpoenas must not be too vague or oppressive and that it is impermissible to require the recipient to form a view as to what must be produced in compliance with the subpoena.

In summary, the court dismissed the objections to the first subpoena and set aside certain paragraphs of the second subpoena, emphasizing the importance of apparent relevance and the need for subpoenas to be specific and not overly burdensome.

Orders