Lambard and Lambard & Ors (No 3)
[2020] FamCA 879
•20 October 2020
FAMILY COURT OF AUSTRALIA
| LAMBARD & LAMBARD AND ORS (NO. 3) | [2020] FamCA 879 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Where the father has made an Application for leave to be granted retrospectively for the issue of subpoenas – Where, at the time of the decision, documents had already been produced to the Court in respect of three (3) of the four (4) subpoenas – Where a letter was provided to the Court in respect of the fourth subpoena that there were no documents to produce – Where the parties consent in respect to inspection of two (2) of the subpoenas - Where the pressing issue before the Court concerns a subpoena issued to the maternal grandmothers former employer – Where the mother and maternal grandmother seek disclosure of financial documents of the paternal grandmother – Where the mother and maternal grandmother seek leave to issue a subpoena to the paternal grandfather, a third party to the proceedings – Orders made for leave to be granted retrospectively in respect of the three (3) subpoenas – Orders made for the paternal grandmother to provide financial documents – Orders made granting leave to issue a subpoena to the paternal grandfather. |
| Family Law Act 1975 (Cth) s 60CC(3)(f), 69ZQ(1)(d) Family Law Rules 2004 (Cth) pt 15.3, r 13.01 |
| Attorney-General for the State of Victoria v Slaveski [2013] VSC 319 Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC 93-038 R v Barton (1981) 2 NSWLR 414 U v U (2002) 211 CLR 238 Wong v Sklavos (2014) 319 ALR 378 |
| APPLICANT: | Mr Lambard |
| FIRST RESPONDENT: | Ms Lambard |
| SECOND RESPONDENT: | Ms Dabell |
| THIRD RESPONDENT: | Ms M Lambard |
| FILE NUMBER: | SYC | 2664 | of | 2020 |
| DATE DELIVERED: | 20 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney by web conference |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 24 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Linden Legal |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Cantrell |
| SOLICITOR FOR THE 1ST RESPONDENT: | McAuley Hawach Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | Mr Ridley of Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE 3RD RESPONDENT: | Mitchell Lawyers |
Orders
That leave be granted retrospectively, or to the extent that it is necessary, to the father, Mr Lambard, to issue the following subpoenas (NOTING that the said subpoenas were filed with the Court on 3 September 2020):
(a)SS Pty Limited;
(b)TT Pty Limited.
That leave be granted to the legal representatives for each party to inspect and copy any documents produced to the Court in response to the subpoenas filed with the Court on 3 September 2020 by the father to SS Pty Limited and TT Pty Limited, provided copies of the documents are not released to the parties.
That leave be granted retrospectively, or to the extent that it is necessary, to the father to issue the subpoena to UU Company (NOTING that the said subpoenas were filed with the Court on 3 September 2020).
That, subject to the legal representatives for the mother and maternal grandmother, for a period of 14 days from the date of these orders, having first right of inspection, leave is granted to all parties’ lawyers to inspect and copy any documents produced to the Court in response to the subpoena to UU Company.
Within 21 days, the third respondent Ms M Lambard shall provide to the mother copies of:
(a)Her most recent income tax return and notice of assessment; and
(b)A copy of the most recent financial statements prepared for any company or trust in which she is a shareholder, unitholder or beneficiary.
(c)A copy of the most recent income tax return lodged with the ATO by or behalf of any company or trust in which she is a shareholder, unitholder or beneficiary.
(d)The most recent statement for any superannuation account or interest held by her, including any self-managed superannuation fund.
That leave be granted to the mother, Ms Lambard, to issue a subpoena to Mr O Lambard seeking the information set out in the unsealed subpoena sent by the solicitors for the mother to the solicitors for the father and paternal grandmother attached to the email dated 4 September 2020.
NOTATION
A. IT IS NOTED THAT the subpoena filed 3 September 2020 to National Disability Insurance Agency by the father is not pressed or called upon.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambard & Lambard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2664 of 2020
| Mr Lambard |
Applicant
And
| Ms Lambard and Ms Dabell and Ms M Lambard |
Respondents
REASONS FOR JUDGMENT
Introduction
This matter concerns a dispute between the parties, Mr Lambard (“the father”), Ms Lambard (“the mother”), Ms Dabell (“the maternal grandmother”) and Ms M Lambard (“the paternal grandmother”), as to what parenting arrangements are in the best interests of the child, X (“the child”) born … 2019.
This decision concerns a request by the respective parties to issue subpoenas in respect of parenting proceedings that are listed for final hearing over seven (7) days commencing on 14 December 2020.
The background to the substantive dispute between the parties is set out in my reasons for judgment dated 26 May 2020,[1] 25 August 2020,[2] and 14 October 2020.[3]
[1] [2020] FamCA 405.
[2] [2020] FamCA 789.
[3] [2020] FamCA 858.
Application
The Applicant father seeks information in respect to the maternal grandmother’s employment history including whether she has suffered any mental health and/or personality related issues in that employment. Broadly, the father and paternal grandmother contend that the mother’s employment records are of relevance to the Courts consideration of the maternal grandmother’s capacity to discharge her responsibilities as one (1) of the primary carers of the child.
Specifically, it is contended that the employment records are likely to show that the maternal grandmother has had a history of mental health and/or personality related issues that have manifested themselves in the course of her employment and/or which have been caused and/or aggravated by her employment. It is further contended that the maternal grandmother’s employment history shows that she has personality traits that may impact upon her co-parenting capacity and also, adversely impact upon the father’s ability to engage in cooperative and constructive communication with the maternal grandmother which will be necessary if orders are contemplated for the parties to share parental responsibility.
The mother and maternal grandmother seek the production of financial information from the child’s paternal grandparents including financial information in respect to business interests of the paternal grandfather in Queensland. Broadly, it is contended that those financial records are relevant to the Courts consideration as to the financial resources available to the father and paternal grandmother to provide for the child’s needs. It is further contended that the information will be relevant to the Courts assessment of the father’s decision to leave his New South Wales based employment in order to take up a position working in the paternal grandfather’s businesses. It is further contended that an assessment of the business activities of the paternal grandfather will be relevant to the Court considering the practicality of the father and/or the paternal grandmother living in Sydney rather than the H Region in Queensland.
Background
Subpoenas issued by the husband
On 3 September 2020, the lawyers for the father filed with the Court subpoena addressed to the following entities:
a)TT Pty Ltd;
b)SS Pty Ltd;
c)National Disability Insurance Agency (“NDIS”);
d)WW Pty Ltd; and
e)UU Company.
The father does not press the subpoena to the NDIS.
Other than in respect to WW Pty Ltd, all recipients of the subpoena have now produced documents to the Court.
Subsequent to the parties providing their written submissions, the Court advised the parties that the Court has received a letter from XX Company on behalf of WW Pty Ltd which, relevantly, states:
I refer to the above matter in the enclosed subpoenae served on WW Pty Ltd on 9 September 2020 (the Subpoena).
…
We have searched our personnel files and payroll systems and can find no records of [the maternal grandmother] having been employed by WW Pty Ltd (or any of its associated entities). We therefore do not have any of the requested material described in the Schedule to the Subpoena.
(Emphasis in Original)
In those circumstances, save to the extent that there is an overlap in respect to submissions concerning that subpoena and the subpoena to UU Company, the Court has not further considered the request to retrospectively validate the subpoena to the WW Pty Ltd.
The mother agrees to the parties legal representatives inspecting documents produced by:
a)TT Pty Ltd; and
b)SS Pty Ltd.
In light of the agreement between the parties regarding access to documents produced by TT Pty Ltd and SS Pty Ltd, the subpoenas to those entities will not be further considered in these reasons for judgment.
Accordingly, in terms of the father’s application, the sole issue is whether leave should retrospectively be given for the father to issue a subpoena to UU Company and to inspect documents produced pursuant to that subpoena.
Subpoena and information sought by the mother and maternal grandmother
On 4 September 2020, the solicitor for the mother wrote to the solicitor for the paternal grandmother and attached unsealed copies of subpoenas to both the paternal grandparents. That correspondence further attached a schedule of documentation that was sought from the paternal grandparents.
On 14 September 2020, the solicitor for the maternal grandmother sent a further email to the lawyers for the paternal grandparents following up the initial request sent on 4 September 2020.
By reply, the solicitor for the paternal grandmother stated that:
Any documents that your client and/or [the mother’s legal representatives] McCauley Hawach’s client considers relevant can be the subject of a request for disclosure, and the relevance of the requested documents ascertained. There has not been any request for disclosure. If one was made it would be considered on its merits and consideration given as to whether the documents requested are relevant or not. If documents were thought by you and/or [the mother’s legal representatives] McCauley Hawach to be relevant an explanation to that effect could be provided.
The documents sought by the solicitors for the mother and maternal grandmother, as set out in the subpoena filed with the Court dated 22 September 2020, from each of the paternal grandfather and the paternal grandmother were the following:
1. A copy of this subpoena.
2. A copy of the most recent income tax return lodged with the Australian Taxation Office (“ATO”) by or on your behalf, including if lodged through an agent or accountant, and a copy of any notice of assessment issued in respect to same.
3. A copy of the most recent income tax return lodged with the ATO by or behalf of any company or trust in which you are a shareholder, unit holder or beneficiary as applicable or otherwise have an interest in.
4. A copy of the last financial statement, including any balance sheet or profit and loss account, prepared in relation to any company or trust in which you are a shareholder, unit holder, or beneficiary as applicable or otherwise have an interest in.
5. A copy of the business activity statements for the last 12 months lodged by or on your behalf of for any company in which you are a shareholder or otherwise have an interest in.
6. A copy of the trust deed prepared in relation to any trust in which you are a unit holder or beneficiary as applicable or otherwise have an interest in.
7. A copy of the most recent bank statement for any account with any financial institution that is held by you or held by any company or trust in which you are a shareholder, unit holder, or beneficiary as applicable or otherwise have an interest in.
8. A copy of your most recent superannuation statement for any superannuation account or interest held by you.”
The orders sought by the parties
The father seeks orders be made in accordance with his Minute of Proposed Order document provided to the Court by email dated 12 October 2020, set out as follows:
1. That leave be granted retrospectively, or to the extent that it is necessary, to the father Mr Lambard to issue the following subpoenas (NOTING that the said subpoenas were filed with the Court on 3 September 2020):
a) UU Company;
b) WW Pty Limited;
c) SS Pty Limited;
d) TT Pty Limited.
2. That leave be granted to all parties’ lawyers to inspect and copy any documents produced to the court in response to the above subpoenas provided copies of the documents are not released to the parties.
3. That the Notices of Objections filed on 23 September 2020 by the Second Respondent, Ms Dabell in relation to Subpeonas to UU Company and WW Pty Limited be dismissed.
4. IT IS NOTED THAT the subpoena filed 3 September 2020 to National Disability Insurance Agency by the father Mr Lambard is not pressed or called upon.
The mother and maternal grandmother seek orders be made in accordance with their joint Minute of Proposed Orders document provided to the Court by email dated 12 October 2020, set out as follows:
Subpoenas issued by the Father
1. That leave be granted retrospectively, or to the extent that it is necessary, to the father Mr Lambard to issue the following subpoenas (NOTING that the said subpoenas were filed with the Court on 3 September 2020):
a) SS Pty Limited;
b) TT Pty Limited.
2. That leave be granted to all parties’ lawyers to inspect and copy any documents produced to the court in response to the subpoenas filed with the Court on 3 September 2020 by the father to SS Pty Limited and TT Pty Limited, provided copies of the documents are not released to the parties.
3. That leave is not granted retrospectively, or to the extent that it is necessary, is not granted to the father Mr Lambard to issue the following subpoenas (NOTING that the said subpoenas were filed with the Court on 3 September 2020):
a) WW Pty Ltd.
b) UU Company.
4. That leave is not granted to all parties’ lawyers to inspect and copy any documents produced to the court in response to the subpoenas to WW Pty Ltd and UU Company.
5. IT IS NOTED THAT the subpoena filed 3 September 2020 to National Disability Insurance Agency by the father Mr Lambard is not pressed or called upon.
Subpoenas issued by the Mother
6. Within 21 days, the third respondent Ms M Lambard shall provide to the mother copies of:
a) Her most recent income tax return and notice of assessment; and
b) A copy of the most recent financial statements prepared for any company or trust in which she is a shareholder, unitholder or beneficiary.
c) A copy of the most recent income tax return lodged with the ATO by or behalf of any company or trust in which she is a shareholder, unitholder or beneficiary.
d) The most recent statement for any superannuation account or interest held by her, including any self managed superannuation fund.
7. That leave be granted to the mother Ms Lambard to issue the following subpoena:
a) Mr O Lambard.
The paternal grandmother seeks orders be made in accordance with her Minute of Order provided to the Court by email dated 12 October 2020, set out as follows:
1. Any application on behalf of the mother for leave to issue and serve a subpoena on Ms M Lambard, and for leave to issue and serve a subpoena on Mr O Lambard, is dismissed.
2. Within 21 days, the third respondent Ms M Lambard shall provide to the mother copies of:
(a) her most recent income tax return; and
(b) a copy of the most recent financial statements prepared for any company or trust in which she is a shareholder, unitholder, or beneficiary.
3. The parties have leave to inspect and copy the documents provided to this court by TT Pty Ltd, by WW Pty Ltd, and by UU Company as result of the subpoenas served upon each of them.
4. The Notices of Objections filed 23 September 2020 on behalf of the Second Respondent, Ms Dabell in relation to subpoenas filed and served upon UU Company and WW Pty Limited are dismissed.
5. Alternatively if leave is not given to inspect and copy the documents already produced to this court by TT Pty Ltd, by WW Pty Ltd, and by UU Company, then leave is granted to both the father and to the third respondent Ms M Lambard to file and serve subpoenas on each of those companies to produce to this court copies of the same documents they have already produced to the court with the wording of each of those subpoenas to be in accordance with the wording of the subpoenas already filed and copies of which accompany this minute of order.
6. Leave is granted to both the father and to the third respondent Ms M Lambard to file and serve a subpoena on SS Pty Ltd to produce to this court copies of the documents described in the copy subpoena accompanying this minute of order.
Notation:
It is noted that since 22 September 2020, WW Pty Ltd has provided documents to this court as result of the subpoena served upon it.
Area of agreement
It is noted that the area of agreement between the parties is reflected in proposed orders 1 and 2 of the orders proposed by the mother and maternal grandmother. I will make orders in those terms.
Areas of disagreement – issues
Accordingly, the issues to be determined in these proceedings are:
1.Should retrospective leave be granted for the husband to issue a subpoena to UU Company and/or to permit the parties legal advisers to inspect those documents?
2.Should the mother and maternal grandmother be given leave to issue a subpoena to the paternal grandfather?
3.Should the paternal grandmother, as a party to the proceedings, be required to disclose documents relating to her financial affairs as sought by the mother and maternal grandmother?
Relevant legal principles
The power of the Court to issue a subpoena is set out in pt 15.3 of the Family Law Rules 2004 (Cth) (“the Rules”).
The relevant stages of having a third party bring documents to court described in Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC 93-038 at 87,598, with reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 (“National Employers’ v Waind and Hill”), as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.
The principles to be applied in respect to an application for leave to issue a subpoena were conveniently summarised by Flick J in Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 at [73]-[75], as follows:
[73] The party seeking leave “bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings”: Wong v Sklavos [2014] FCAFC 120 at [12]; (2014) 319 ALR 378 at 381- 382 per Jacobson, White and Gleeson JJ.
[74] Normally the grant or refusal of leave takes place ex parte in chambers, although there may be circumstances in which an application for leave may be heard in open court: Spencer v Commonwealth of Australia [2014] FCA 1234 at [11] per Mortimer J.
[75] The general principles to be applied when exercising the discretion to grant or refuse leave to issue a subpoena have long been established. In McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, (2005) 221 ALR 785 at 802-804 Greenwood J summarised these principles, in relevant part, as follows:
[35] In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:
(a)A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: …
(b)A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: … The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery.
(c)Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia.
(d)The documents for production must be identified with reasonable particularity. ... The category of documents must not be so wide as to be oppressive.
(e)The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case ... or to investigate the character of the opposing party’s evidence ...
(f)The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:
[8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
(g)The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents.
(h)In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?
(i)Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.
(j)When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
(k)The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: …
(l)A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: …
(m)The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’. …
(n)The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: …
(o)In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether “it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”. Her Honour said at [18]:
[18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Ltd], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive.
Consideration
Documents sought from UU Company
The subpoena to UU Company seeks the production of the following documentation:
All documents, correspondence, notes, memos and employment records, including but not limited to, performance review/s, disciplinary action/s for Ms Dabell [the maternal grandmother], born on …/1965 including but not limited to workplace complaints by or against or in relation to the said Ms Dabell and any reports or writings in relation to same.
(Emphasis added)
As noted, UU Company has now answered the subpoena which has been served upon them and that entity has produced those documents to the Court. Had the documentation not been so produced, I would have seriously considered setting the subpoena aside or, at least, in the circumstances of this case, not retrospectively, granting leave for the subpoena to be issued. Almond J, in Attorney-General for the State of Victoria v Slaveski [2013] VSC 319 at [7], stated that a subpoena is liable to be set aside as being oppressive “if the subpoena requires the addressee to make fine judgments regarding the relevance of documents or the subpoena does not specify the documents with sufficient clarity or reasonable particularity”.
In my view, the subpoena served upon UU Company is expressed in unreasonably broad terms and, as a further related issue, requires the recipient, who is not a party to these proceedings, to exercise judgment as to what document is or is not a “workplace complaint by or against or in relation to” the maternal grandmother.
The reality is, however, that the documents have now been produced to the Court. In other words, the task of searching for, collating and producing those documents has now been completed. In those circumstances the process has moved on to the second phase referred to in National Employers’ v Waind and Hill (supra). That is, the court is required to make a decision concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents.
In determining that issue, a relevant consideration is nonetheless whether the documents so produced are likely to be of apparent relevance to the proceedings.
The task of determining what issues are relevant to proceedings before the Family Court of Australia has some complexity because there are no formal pleadings. To a large extent, the court makes an assessment as to the issues that are likely to be traversed in the proceedings by the orders sought by the parties, the issues which are the subject of evidence in the parties’ respective Affidavits and any single expert reports.
Once again I have considerable reservation as to how any personality issues that may or may not have arisen during the course of the maternal grandmother’s employment are relevant to these parenting proceedings. Personality issues arise in any workplace whether it is a bank, solicitor’s firm, barrister’s chambers or even within a Court. Common sense suggests that there may be any number of factors at play that give rise to those personality issues including, to identify just a few:
a)management structure;
b)leadership styles;
c)policies and procedures including anti-bullying and harassment policies;
d)diligence in training and the implementing those policies;
e)opportunities for employees to provide input in respect to decisions that impact upon them;
f)preparedness of management to listen to employee concerns;
g)culture – whether hierarchical or collaborative;
h)dispute resolution strategies;
i)volume and pressure of work; and
j)where inappropriate conduct occurs, the effectiveness of any performance improvement programs.
There is, with respect, a considerable risk that the line of inquiry that the father is making in issuing the subpoena to UU Company will lead to a trial within a trial in respect to issues that have little, if any, relevance to the Courts primary task of determining what orders are in the best interest of the child.
In that respect, I note that s 69ZQ(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to consider the likely benefit of taking a step in a proceeding as against the cost of taking that step. That consideration will, however, become relevant at the third stage referred to in National Employers’ v Waind and Hill (supra), being the stage at which the court considers the admissibility of the documents into evidence.
As against the reservations that I have in respect to the potential relevance of the employment records of the maternal grandmother, as sought by the father, in this matter the Court notes that the submissions supporting the validity of the subpoena have been made by counsel who have considerable experience in this jurisdiction. They have contended that the documentation sought from UU Company is likely to have a bearing on the issues in the proceedings. In the absence of examining the documentation, the Court is, to a large extent, dependent upon their common sense and professionalism. In my assessment, counsel so retained by the father and paternal grandmother would not have sought documentation that is “unreal, fanciful or speculative” in terms of Wong v Sklavos (2014) 319 ALR 378 at 381-2 [12]; R v Barton (1981) 2 NSWLR 414 at 420.
Accordingly, I will make orders sought by senior counsel for the father, subject to the legal representatives of the mother and maternal grandmother having first right of inspection of those documents.
Financial records of the paternal grandfather and the paternal grandmother
It has been noted that one of the relevant considerations in determining what orders are in the best interests of the child is as set out in s 60CC(3)(f) of the Act:
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs; …
Accordingly, one of the matters that the Court is required to consider, at the final hearing of this matter, is the capacity of the father and/or the paternal grandmother to provide for the needs of the child which includes, in addition to the child’s emotional and intellectual needs, the child’s physical needs.
The financial circumstances of the paternal grandmother are directly relevant to that issue.
As a party to the proceedings, the paternal grandmother has an obligation of disclosure pursuant to r 13.01 of the Rules. The documentation that the paternal grandmother has been requested to produce is relevant to her current financial circumstances. For the reasons I have explained, it is, in my view, information which is relevant to the case. Accordingly, I will make the orders sought by the mother and maternal grandmother for the paternal grandmother to produce that documentation.
Insofar as it is acknowledged that the paternal grandmother lives with the paternal grandfather, the paternal grandfather’s financial means are also relevant to the maternal grandmother’s capacity to provide for the needs of the child including the child’s physical needs.
Further, in circumstances where the evidence produced to the Court is that the father has resigned from his Sydney based employment with the intention of taking up employment in respect to his father’s business interests, the ability of those business interests to provide a reasonable income to the father is also relevant to the Court’s assessment of the father’s capacity to provide for the needs of the child, including the child’s physical needs.
Finally, it has been made clear that in parenting proceedings, where there is a dispute as to the location where the child should live, in circumstances where there would be a considerable distance between possible locations, the Court is required to give consideration to the practicality of the child’s carers moving to one or other of the locations which are the subject of the parties’ competing proposals.
In that respect, in U v U (2002) 211 CLR 238 (“U v U”) at [175], Hayne J, with the concurrence of Gleeson CJ and McHugh J, said:
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India.
(Emphasis in original)
Similarly, in U v U (supra) at [35], Gaudron J said:
…it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility ... seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.
Accordingly, the viability of the father’s business interests in Queensland, and the role that the father proposes to play in those businesses, is a matter that the Court may be required to consider at final hearing in terms of the Courts obligation to consider the practicality of the father living in Sydney. To be clear, the reverse of that situation also applies. That is, the Court has a similar obligation to consider practicality of the mother and/or the maternal grandmother to move to Queensland.
Accordingly, in circumstances where the issue in this interlocutory application focusses on the financial affairs of the paternal grandparents, for the reasons which I have set out, I am satisfied that the information which the mother and maternal grandmother seek to obtain from the paternal grandfather regarding his financial affairs is relevant to the issues in these proceedings. I will therefore make an order granting leave for the mother to issue a subpoena in terms previously foreshadowed in the unsealed subpoena that she has served upon the solicitors for the father and paternal grandmother.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 20 October 2020.
Associate:
Date: 20 October 2020
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