Kelleher & Anderson (No. 2)

[2008] FamCA 196

FAMILY COURT OF AUSTRALIA

KELLEHER & ANDERSON (No. 2) [2008] FamCA 196

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae

Family Law Act 1975 (Cth)

Applicant: Ms Anderson

Respondent: Mr Kelleher

Case Guardian: Mr J

File Number: MLF 2734 of 2006

Date Delivered: 19 February 2008

Place Delivered: Melbourne

Place Heard: Melbourne

Judgment of: Carter J

Hearing Date: 19 February 2008

Representation

Counsel for the applicant: Mr G J Levine

Solicitor for the applicant: Isaac Brott & Co

Counsel for the Respondent: No appearance

Solicitor for the Respondent: Rickards Legal

Counsel for the Case Guardian Mr M Wilson

Solicitors for the Case Guardian Kennedy Wisewoulds

Orders

IT IS DIRECTED

1. That the wife’s Form 2 Application dated 4 February 2008 and the two affidavits sworn or affirmed on 4 February 2008 and 13 February 2008 respectively be filed.

2. In the event that the wife wishes to amend her Application for Final Orders to include relief against Mr Y as foreshadowed this day, namely, to have the Deed of Variation dated 25 February 1997 (“Annexure AA9” to the wife’s affidavit sworn or affirmed 13 February 2008”) set aside or declared null and void pursuant to s 106B of the Family Law Act 1975 or alternatively seeking orders pursuant to s 90AE of the Family Law Act 1975 then she file such application within 10 days of this day and thereafter forthwith serve such application upon the husband and the Case Guardian for Mr Y.

3. That the husband have leave to apply in respect of any such application within 10 days after having been served.

4. That par (2) of the wife’s Amended Form 2 Application filed 13 July 2007 together with the Form 2 Application dated 4 February 2008 be dismissed and removed from the list of cases awaiting determination.

5. That leave be refused to issue the various subpoenae referred to in the wife’s affidavit material and the subpoena issued 6 March 2007 to Mr Y be set aside.

6. That the wife contribute towards the Case Guardian’s costs by paying the costs of today, such costs to include, but not being limited to, the costs of his solicitor and counsel in preparation for the proceedings today; the costs of his solicitor’s attendance to instruct this day and the costs of counsel to appear.

7. If such costs are not agreed within 28 days of this day they shall be assessed and payment thereof be stayed for two months after such assessment.

IT IS CERTIFIED

1. That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

The Court Notes

That Mr Wilson on behalf of the Case Guardian for Mr Y has advised the Court and the wife and her counsel that in the event the wife amended her application to seek orders against Mr Y as foreshadowed this day, he and/or his Case Guardian would not seek to contest any such application.

IT IS NOTED that publication of this judgment under the pseudonym Kelleher & Anderson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2734 of 2006

Ms Anderson

Applicant

and

Mr Kelleher

Respondent

and

Mr J

Case Guardian for Mr Y

REASONS FOR JUDGMENT

ex tempore

1. Proceedings are pending in this Court between Ms Anderson (for convenience referred to as “the wife”) and Mr Kelleher (for convenience referred to as “the husband”).

2. By Amended Application filed on 13 July 2007, the wife sought certain relief against Mr Y.  Mr Y is the husband’s father.  On 19 November 2007 Mr J was appointed as the Case Guardian of Mr Y, given that he was a person sought by the wife to be joined as a party to these proceedings.

3. That order was sought in an amended application filed on behalf of the wife on 13 July 2007.  In par 2 of that application she sought that the Court make an order joining Mr Y to the proceedings and restraining him, his servants and/or agents from taking any steps to resign as appointor or to cause any other person to be appointed as an appointor, or to otherwise affect the position of appointor currently held by him in the Y family trust (“the wife’s Joinder Application”).

4. On 7 August 2007 a Form 2A Response was filed in which it was sought that the wife’s application be dismissed.

5. There were later developments in that, in more recent times, the wife attempted to file a further application in respect of Mr Y and also to have certain additional subpoenae issued.  Given that I am the Judge Manager of these proceedings this issue was referred to me.

6. In the event I declined to authorise filing and/or issue of subpoenae. 

7. When the matter commenced Mr Levine of counsel appeared on behalf of the wife, and Mr Wilson of counsel appeared on behalf of the Case Guardian.  Mr Levine sought leave to file a further Application in a Case dated 4 February 2008, together with two further affidavits sworn or affirmed by the wife on 4 February 2008 and 13 February 2008 respectively.

8. The “new” Application in a Case sought orders relating to a subpoena which was issued on 6 March 2007.  That subpoena had been directed to Mr Y and it is common ground that he had not complied with it.  Accordingly it was sought that the Case Guardian provide the documents referred to in that subpoena and if documents were not provided, then swear an affidavit specifying what inquiries had been undertaken to locate the documents (inter alia).

9. After some discussion, leave was granted to the wife to file all these documents.  It is convenient to note here that there are annexures to the wife’s affidavit sworn or affirmed on 13 February 2008, being correspondence between the wife’s solicitor and my Associate and which detail my reasons for my earlier refusal for permission to file the Application in a Case and to issue the subpoenae.

10. Apart from the injunctive relief sought against the husband’s father, the wife had sought no orders against him.  The wife had not articulated the basis of her claim against the husband’s father and she had not set out any orders which she would seek if the Court granted the Joinder Application.

11. I raised these matters with Mr Levine who told me that it was sought pursuant to s 106B of the Family Law Act 1975 (“ the Act”) to “attack” a Deed of Variation dated 25 February 1997 which was annexed to the affidavit of the wife sworn or affirmed, 13 February 2008.  The Deed relates to the Y Trust.  It was said that the husband had been the Appointor of the Trust and that the Deed appointed Mr Y as Appointor in his place.

12. Another, or alternative order which would be sought, according to Mr Levine, was that that Deed be set aside and declared null and void. Further, or alternatively, orders would be sought pursuant to s 90AE of the Act.

13. Shortly thereafter however, Mr Levine effectively advised me that the wife’s Joinder Application was not ready to proceed and could not proceed unless these further subpoenae were issued and I had dealt with the application (presumably in the wife’s favour) to have the Case Guardian comply with the subpoena issued in March 2007.

14. The approach which was then taken was that Mr Levine, as counsel for the applicant wife, was to make submissions in relation to the reasons why the Joinder Application would need to be adjourned, and then make further submissions as to why the additional relief against the Case Guardian should be granted and why the further subpoena should be issued.

15. I pause here to say that there were six subpoenae in all, and these were in addition to a significant number of subpoenae which have been issued in these proceedings, not just in the substantive proceedings, or at various other stages of those proceedings, but since or around about the time that the Joinder Application was filed.

Discussion

1. Mr Levine explained that all these issues overlapped, and the thrust of his submission was that the situation was one where the wife did not have proper evidence in proper form (as I understand it), to sustain the Joinder Application and would not be able to do so without recourse to these subpoenaed documents.

2. He submitted, and on more than one occasion, that the wife was answering the husband’s case, namely that his father was in ultimate control of the Y Trust (“the Trust”).  The wife disputed this.  That was why the wife sought that the husband’s father be joined.  He reminded me, and it was the case, that in an earlier chapter in these proceedings evidence was given in an affidavit by a Mr C, an accountant for the Y group of companies (inter alia), and the thrust of that evidence was that Mr Y did have the ultimate control of the entities.  I accepted that evidence for the purposes of that hearing.  It was the only evidence before me at the time, given that the wife had not put forward any material herself in that regard.

3. Mr Levine explained the basis upon which the six additional subpoenae were sought to be issued.  Without attempting to detail those submissions, it is fair to say that the thrust was, as I have already noted, that the documents were necessary to provide a proper basis for the wife’s Joinder Application and in the absence of the documents she would not be able to sustain that application.  Accordingly, according to Mr Levine’s submission, the wife’s Joinder Application needed to be adjourned.

4. For similar reasons, there needed to be an order requiring the Case Guardian to comply with the March 2007 subpoena which had been directed to the husband’s father, and with which there had been no compliance.

5. I accept Mr Wilson’s submissions that the wife’s case is more correctly described as being that the husband was in effective control of the Trust.  This emerged from the wife’s own evidence in various parts of her affidavit sworn or affirmed on 17 February 2008, and in particular, par (3), par (7) and par (8).  To ensure that the reader understands this I record that the wife deposed in connection with the subpoena in par (3):

   “I have instructed my solicitors to issue a number of subpoenas to obtain evidence to substantiate my claim that the husband is in effective control of [N] Pty Ltd and the [Y] Trust and that he is currently receiving the benefits of the said trust, through the maintenance of a lavish lifestyle.”

6. Similar sentiments were expressed in par 7, and in par 8 further reference is made, this time to the Deed of Variation pursuant to which Mr Y is or was the appointor.  Again, reference is made to documentation which it was said “would prove that the husband is in effective control of the trust and is even capable of removing the appointor from the trust.”

7. Mr Wilson further submitted that the wife’s approach was misconceived and I agree.  She sought to obtain documents in order to establish that the husband’s father was not in control.  The fallacy of that approach can be readily seen.  Even if she established that the husband’s father was not in control, that would not establish that the husband was.

8. This approach seems to derive from some confusion, either by the wife or by those who represent her, as to the difference between effective control and ultimate control.

9. The relevance of some of the documents sought in the subpoenae appear to be of peripheral, if any, relevance.  For example, it was sought that the husband’s father could use a “binding financial agreement made between (the husband’s mother and father) and any other agreement made in order to adjust and determine their property entitlements arising from the breakdown of their marital relationship.”

10. The evidence in support of that was set out in par (10) of the wife’s affidavit sworn or affirmed on 4 February 2008.  the wife had referred to her belief that the husband’s father was in receipt of Centrelink benefit and she sought to obtain documentation in this regard.  She went on to say:

    “…      (d)      I have a copy of an unexecuted binding financial agreement between (the husband’s father and mother), that I have already exhibited to my affidavit, and it can be presumed that, due to their separation and the receipt of Centrelink benefits and separate Centrelink benefits by him, that the said document was executed.”  (The emphasis is mine.)

11. The question of whether the husband’s father was in receipt of any Centrelink benefits figures prominently in some of the subpoenae sought to be issued.  The relevance appeared to be that in some manner the receipt of such payments or benefits was inconsistent with the husband’s father position as appointor.

12. A concession was made by Mr Wilson that Mr Y was in receipt of an aged pension.  The rhetorical question was asked, “so what?”.  There was no evidence put before the Court that this was inconsistent with his being the appointor of the Trust.  I accept that submission.

13. Mr Wilson directed his submissions to three subpoenae in particular.  These were:

    ·The subpoena issued in March 2007 directed to Mr Y;

    ·A further subpoena also directed to Mr Y which the wife sought to have issued;  and

    ·A subpoena to Mr Wilson’s instructing solicitor.

14. It is not necessary to detail all that was said in respect of these three subpoenae, however, it is salutary to observe that the reason why the wife sought to issue subpoena directed to the solicitors and previous solicitors of the husband’s father was “to determine who is funding the legal representation of Mr [Y], because I do not believe that he can afford that representation.”  (See par 11 wife’s affidavit sworn or affirmed 13 February 2008.)

15. On the basis of Mr Levine’s submissions and assuming for the moment that the subpoenas had some proper foundation and were not something in the nature of a fishing expedition, in my view, even if the documents produced did establish that the husband’s father did not have control, it would not follow that the documents established that the husband is in effective control.  As Mr Wilson correctly submitted, the wife seeks to prove a negative (i.e. the husband’s father is not in control) in order to prove a positive (i.e. therefore the husband must be).  That of course does not follow either as a matter of logic or as a matter of law.

16. Further, and importantly, Mr Wilson told the Court that if the wife amended her application for final orders to have the Deed set aside, the Case Guardian would not seek to contest any such application.  It can be seen therefore that there is no utility in adjourning the matter to enable the subpoenae to be issued, or to require the Case Guardian to comply with the subpoena issued in November 2005.

17. I agree with Mr Wilson’s submission that there is also no utility to be gained in joining the husband’s father as a party.  Firstly, I accept that there would still be a void.  It will not prove that the husband is in effective control.

18. It is also appropriate that I have regard to the Court’s obligation to ensure that cases are resolved in a just and timely manner, and at a cost to the parties and the Court that is reasonable in the circumstances.  In all the circumstances I am not satisfied that it is appropriate to impose on Mr Y, on the basis of the material put before me, the costs which would necessarily follow joinder.  Nor would it be the case that joining him would result in a more speedy disposition of the substantive matter.

19. I have considered r 6.02(1) of the Family Law Rules. It is in the following terms:

    “A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.”

20. Mr Levine relied on this rule in support of the wife’s Joinder Application, however, I prefer Mr Wilson’s submission that in the circumstances of this case the joinder of the husband’s father is not necessary to enable the Court to determine all issues in dispute.

21. In any event it was the wife’s case that she could not make out a sufficient case for joinder unless the subpoenae were issued and the Case Guardian complied with the subpoena issued in March 2007.

22. The effect of my findings and my conclusion is that this will not be permitted.

23. The wife’s Joinder Application must therefore fail.

24. As already recorded the wife’s application also sought injunctive relief against Mr Y.  This aspect was not pursued.  For the sake of completeness it is my view it would not be supported on the basis of the evidence which was put before the Court.

25. I refer to Mr Wilson’s concession on behalf of the Case Guardian that if the application were to be amended to include the orders foreshadowed by Mr Levine, they would not be contested.  That concession does not, of course, bind the husband.  He did not attend at the hearing.  He had the opportunity to attend.  However, it is proper to recall that the wife had never articulated her claim or specified what orders she would seek to have made as against Mr Y, if joinder were granted.  In those circumstances, orders will be made which will give the husband the right to seek leave to apply in respect of any application, amended as foreshadowed by Mr Levine.

Other Matters

1. Given that I am managing this case and as previously noted, a significant number of subpoenae have been issued.  This gives me concern and I indeed gave consideration to making an order restraining both the husband and the wife from issuing any further subpoenae without leave of the Court.

2. The Rules place restrictions on a litigant in person in that he or she is not permitted to issue a subpoena without leave of the Court.  There is no such restriction placed upon a legally represented party.  This is on the basis that a solicitor is an officer of the Court, and can therefore be presumed to act responsibly, reasonably and proportionally.  I have of course, determined that the subpoenae the subject of these Reasons should not be permitted to be issued and for reasons already given.  However, it is appropriate to remind the solicitors for all parties, of the need in particular for proportionality.  I was troubled, I must say, by the intention to issue a further six subpoenae, given all the subpoenae which have already been issued.  I will make no order at this stage.  However, I remind the legal practitioners that the restrictions on issuing subpoenae were inserted in the Rules for good reason.  The subpoena power must not be overused.  In any event, after today’s proceedings are concluded there will be no current applications before the Court, save of course for the substantive applications and subpoenae in those circumstances are not permitted to be issued in any event.

Costs

1. The Case Guardian now seeks costs.  There are reserved costs to be considered as well.  Paragraph (2) of order number 1 which was made on 19 November 2007 reserved the question of the payment of the costs of the Case Guardian incurred in the conduct of the proceedings.  In par (3) of the same order I also reserved the question of payment of the Case Guardian’s costs and the wife’s costs of and incidental to the Amended Application in a Case filed 2 October 2007.  That application sought the appointment of Mr J as Case Guardian.

2. Eventually there was no real opposition to the appointment of the Case Guardian, however, the application had been opposed prior to, and at some times during the hearing in November 2007.

3. The question of costs falls to be determined pursuant to s 117 of the Act which in broad terms provides that each party to proceedings under the Act will be responsible for his or her own legal costs unless he or she can establish a justifying circumstance, having regard to the matters set out in s 117(2A).

4. One of the matters required to be considered in the financial circumstances of each party.  I have no real understanding of the financial circumstances of the Case Guardian.  By virtue of my previous involvement in this case I am aware that the financial circumstances of the wife are strained.

5. Another matter which is relevant in the circumstances of this case is the question of whether any party to the proceedings has been wholly unsuccessful in the proceedings (s 117(2A)(e)).  The Case Guardian places emphasis upon this factor.  The wife’s application was dismissed in its entirety.  I found that her approach was misconceived.  This is a weighty factor.

1. It is correct, as was submitted, that the concession given on behalf of the Case Guardian was also a factor in my decision.  That concession was not made until after the conclusion of submissions made on behalf of the wife.  Mr Levine particularly drew my attention to this, however, I do not think that it is of any moment.  It would be foolhardy in my view, for any responsible member of counsel to make any such concession until the other party’s submissions had been concluded.

2. In any event, I would take into account and weigh against that matter, the fact that the claim against the husband’s father was never articulated until today, and then only on my request.  That is a matter which in my view is very significant.  It would be relevant under s 117(2A)(c) and/or (g).

3. Notwithstanding Mr Levine’s rather intemperate submissions that I do not have regard to the wife’s financial situation or her two children, I do take such matters into account.

4. A proper weighing of these matters leads to the conclusion that the Case Guardian has established justifying circumstances.  The wife’s financial circumstances lead to the conclusion that only some of the costs should be ordered.  A proper outcome in my view is that the wife should pay the Case Guardian’s costs of this day, including, but not limited to the costs of preparation by solicitor and counsel;  the costs of the solicitor to attend to instruct counsel;  and counsel’s costs of appearance today.  If the quantum of costs is not agreed within 28 days, costs are to be assessed.  Payment is to be stayed for two months following that assessment.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    27 March 2008