Kerr & Christie

In Kerr & Christie, the applicant, J Pty Ltd, was subpoenaed to produce documents. The husband, who is the applicant in the property settlement proceedings, sought financial statements and tax returns from the trust of which the wife is a beneficiary. The applicant objected to the subpoena on the basis that the documents were irrelevant and should not be produced. The matter was referred to a registrar who made orders extending the time for production and allowing the parties to inspect and photocopy the documents produced. The applicant sought to have the subpoena set aside, or alternatively, to limit the material that would be provided in response to the subpoena and to restrict access to the material to the parties' legal representatives.

The court considered the obligations of parties to make full and frank disclosure of all material facts to the other party and the court, and the heavy obligation on parties in property cases to make complete disclosure. The court found that the wife's interest in the trust was a financial resource of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth). However, the court was not persuaded that it was appropriate to allow the husband to pursue the subpoena for the documents relating to the financial affairs of the Trust. The court was more persuaded that the husband should have the documents setting out the dates, identity of beneficiaries, and amounts distributed for the periods that he seeks but that the objection to the production of the financial documents should be upheld. The time frame for production should be extended until after the Christmas holiday period to enable the documents to be produced.

The court discharged orders 17 and 18 as made by the registrar and ordered that the words “Financial Statements including any profit and loss statements” and the words “asset schedules” be struck from Item 4 and the whole of Item 5 be struck from the subpoena issued by the husband on 10 March 2021 to J Pty Ltd. The time for J Pty Ltd to produce documents to the court at schedule item 4 of the subpoena issued by the husband on 10 March 2021 is extended until 4pm on 17 January 2022 and that the parties be granted inspection and photocopying access.