LOOMIS & THURSTON

[2016] FamCA 1148

FAMILY COURT OF AUSTRALIA

LOOMIS & THURSTON [2016] FamCA 1148

FAMILY LAW – EVIDENCE – Subpoena – Where the husband seeks to use subpoenaed material produced in property proceedings, in a child support appeal matter before the Federal Circuit Court – Where the husband would have to seek leave from the Federal Circuit Court to adduce fresh evidence – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Loomis

RESPONDENT: Ms Thurston

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 15 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 February 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. The further hearing of the application for orders as contained within paragraph 3 of the husband’s Application in a Case filed 25 January 2016 and the application for the orders sought in Mr ML’s Application in a Case filed in response to the husband’s application on 12 February 2016 is adjourned to 10.00 am on Monday, 18 April 2016 for hearing in the Judicial Duty List before his Honour Justice Forrest.

1. The wife’s application for orders as contained in her Response to an Application in a Case filed 10 February 2016 is adjourned to 10.00 am on Monday, 18 April 2016 for hearing in the Judicial Duty List before his Honour Justice Forrest.

1. The husband’s application for an injunction as contained within paragraph 1 of his Application in a Case filed 19 January 2016, is dismissed.

1. Leave is granted to the husband to seek to use material produced under subpoena in property adjustment proceedings in this court between the parties by Ms Y and by the ANZ Bank and the Westpac Bank, in proceedings relating to an appeal against a Tribunal decision in respect of a child support assessment matter currently listed for hearing in the Federal Circuit Court in Brisbane on a date in March 2016 and in any hearings of that court or the Administrative Appeals Tribunal subsequently heard in respect of the child support assessments matters being dealt with in those proceedings after the hearing and determination of that appeal and as a consequence thereof.

1. The wife’s Application for Contravention filed 28 January 2016 is listed for hearing before Justice Forrest at 10.00 am on Tuesday, 12 April 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Mr Loomis

Applicant

And

Ms Thurston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties to this Application in a Case being heard and determined by me today, Ms Thurston and Mr Loomis, were parties in property adjustment and child support departure proceedings that were heard before me over four days commencing on 7 December 2015.  I reserved my judgment at the end of the proceedings when the evidence was completed.  I made provision for written submissions to be filed and served by each party with the final set of written submissions to be before me by sometime in January of this year and my judgment in the matter remains reserved. 

2. The matter is well and truly complicated by many instances of non-compliance by the parties with superannuation statute law and regulations that apply in this country to self-managed superannuation funds and as I have informed the parties today, something that ought not take either of them by surprise having regard to the discussions that took place at the end of the trial, it is more than likely that at some stage in the not too distant future I will be making some interim property orders that deal with the superannuation fund and matters of non-compliance, with a view to addressing those questions of non-compliance and having the matter referred to the Australian Taxation Office for its consideration as to whether the matters of non-compliance have been remedied and whether there ought to be any further consequences in respect of the matters of non-compliance.  Only when those matters are finalised will I be able to take steps to deliver final judgment in respect of the property adjustment proceedings between the parties. 

3. In the lead up to the trial, there was great dispute between the parties in respect of material sought to be made available by way of the issue of subpoena out of the court to various third parties to produce documents to the court.  Mr Loomis indeed subpoenaed a number of parties including the ANZ Bank and the Westpac Bank.  He sought from both banks the production of documents relating to various bank accounts, applications for finance by the wife and her mother and related matters.  The list also included Ms Y, who is the wife’s elderly mother, and she was subpoenaed to produce certain documents to the court. 

4. It also included Mr DC who is the wife’s current partner.  He was required by subpoena issued out of the Court on the application of Mr Loomis to produce certain documents.  Mr DC appeared and produced the documents at a time prior to trial on the return date of the subpoena and made objection to the documents being made available to be inspected and copied by Mr Loomis.  I determined that objection against Mr DC in respect of at least the inspection of the documents and allowed Mr Loomis to inspect the documents. 

5. Ms Y did not appear but nevertheless made objection to the documents that she produced pursuant to the subpoena being made available for the inspection and copying by Mr Loomis.  That objection was advanced to the Court by Ms Thurston, her daughter, and again I determined the objection against Ms Y making orders that Mr Loomis was entitled to inspect the documents produced by her. 

6. In the course of hearing and determining those matters, I made it clear to Mr Loomis that it is a contempt of court to utilise copies of documents obtained by way of the process of the issue of subpoena or the disclosure process in litigation before this Court for an ulterior purpose, such as using such documents in litigation in another court without first obtaining the leave of this particular Court.  On 25 January 2016, Mr Loomis filed an Application in a Case in which he seeks a number of orders but in respect of this particular issue, he specifically seeks the following order:

   That the court grant leave to use the material supplied under subpoena by [Mr DC], [Ms Y], ANZ and Westpac in the Child Support Appeal to be heard in the Federal Circuit Court in March 2016 and any subsequent hearings if the matter is remitted for re-hearing.

7. The factual background to this, apart from what I have already outlined, is that over recent years Child Support Agency administrative assessments of child support have been put in place and they have been objected to and reviewed from time to time by either Ms Thurston and/or Mr Loomis and those objections or review applications have proceeded administratively pursuant to the course outlined in child support legislation through to tribunal determination in either the SSAT or the AAT (the latter having now taken over the functions of the SSAT including in respect of determining ultimately, on their merits, applications for review of administrative child support determinations). 

8. I am led to believe that currently listed before Federal Circuit Court Judge Cassidy on a date in March 2016 is an appeal brought by Mr Loomis against a decision of the Tribunal in respect of historical determinations of child support review or departure applications.  Of course, as Mr Loomis would be aware, having already had determined such a matter before me in the past, that his appeal is limited to a point of law.  Nevertheless, he comes to this Court seeking the grant of leave to use the material supplied under subpoena that I have already referred to, in those proceedings and any subsequent hearings if the matter is remitted for rehearing. 

9. After some discussion at the outset of the hearing of the application this afternoon, Mr Loomis informed the Court that he does not seek to use any of the documents that were produced by Mr DC pursuant to subpoena in those proceedings below and he acceded to deletion of the name of Mr DC from paragraph 2 of his Application in a Case, leaving only Ms Y and the ANZ and Westpac Bank, being those bundles of documents which he sought to put before the court. 

10. Ms Thurston valiantly argued on behalf of her mother that her mother was not served with this application and therefore has been given no right to respond to the application of Mr Loomis.  In that respect, I observe that on the previous occasion when Ms Y made objection to the production of documents she did not appear before the Court but her objection was argued eloquently and carefully on her behalf by her daughter Ms Thurston.  Effectively, Ms Thurston again argues similar points as to why Mr Loomis ought not be allowed to use the documents produced by Ms Y in the proceedings below. Principally, they are privacy grounds. 

11. I am not satisfied that the application to be able to use the documents produced under subpoena by Ms Y under subpoena ought to be dismissed or refused simply because Ms Y was not given notice of it.  I am quite satisfied that constructively she would be aware through her daughter’s participation in these proceedings and attendance here today of the nature of the proceedings against her and that Ms Thurston has again eloquently and carefully put the arguments before the court on her mother’s behalf as to why leave should not be granted as sought by Mr Loomis.

12. When asked how he intends to get the material before the court below on the appeal of the child support tribunal determination, Mr Loomis simply asserts that he will attach the documents he wants to adduce into evidence to an affidavit and file that and seek to rely upon it in the proceedings before Judge Cassidy.  When I asked him what use he intended to put the documents to he informed the court that there are certain factual matters disclosed by those documents that are relevant to the determination of the matters subject to that appeal. 

13. As I indicated to Ms Thurston during the course of hearing argument this afternoon, a determination by me to give leave to Mr Loomis to be able to use the documents that he seeks to adduce into evidence in those proceedings is not to be taken as an acceptance of an argument that matters of fact that Mr Loomis contends in respect of those documents are in fact correct or as a determination that the documents that he seeks to adduce into evidence in the proceedings below are indeed ultimately (a) admissible; and (b) in any way determinative of the matters that are in dispute in those proceedings and that have to be determined in that court. 

14. In this regard, I hasten to again point out that Mr Loomis’s appeal in the court below is an appeal on a point of law only.  What use he intends to make of documents produced under subpoena in support of an argument that on a point of law a tribunal below erred is not entirely clear to me.  It was not made clear to me or even really sought to be made clear to me by Mr Loomis in his evidence. 

15. However, in respect of the matters of fact that he asserts that the documents prove, I am at this instance satisfied that they are arguably of some relevance in a child support matter.  By this though, I again hasten to add that neither party, and particularly Mr Loomis, ought not understand this to be some sort of fiat to argue or seek to persuade Judge Cassidy on the hearing below that I have somehow determined that these documents are admissible in the proceedings below or indeed of direct relevance to the matters in issue that her Honour has to determine or that she is in any way bound to allow them to be adduced into evidence by Mr Loomis simply because I have given him leave to seek to use them. 

16. One of the matters that I have given serious thought to in the exercise of my discretion this afternoon, is the fact that I pointed out to Ms Thurston that in those proceedings below, if Mr Loomis is unable to seek to use copies of the documents that were produced under subpoena in these proceedings, he would be entitled to seek the issue of subpoena in that court for these documents to be produced again. 

17. That would be at cost and inconvenience duplicated in respect of these parties having regard to the fact that that these documents have already been required to be produced under subpoena in recent months.  I am persuaded that such cost and inconvenience is easily alleviated and overcome by giving Mr Loomis the relief that he seeks and I shall fashion an order accordingly in a moment. 

18. The first paragraph of the Application in a Case filed on 19 January 2016 by Mr Loomis seeks a completely different order, namely:

    That until further order the respondent mother, her solicitors and agents be restrained and an injunction granted restraining them from instituting, initiating or maintaining proceedings including Costs Applications under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to any of the Respondents or any companies or parties associated with the Respondents without first having been granted leave by Justice Forrest to commence that proceeding pursuant to s 102QD of the Act.

19. When I asked Mr Loomis what the reference to s 102QD of the Act was, he gave me, to the best of my understanding, no real answer save that that was some sort of incorrect reference. I note that s 102QD of the Act is headed “Proceedings in contravention of vexatious proceedings order”. It seems to me that he is right, that is clearly a completely incorrect reference and ought to be ignored by me.

20. Mr Loomis informs the court in his affidavit material, and it is uncontroversial, that Ms Thurston has indeed filed an application in the Federal Circuit Court for costs.  Just to put that in context, at the same time as the property adjustment proceedings were pending in this court, pursuant to an order of mine made in early 2014, I transferred the parenting proceedings that remained on foot between these parties back to the Federal Circuit Court.   Those proceeded through to a final trial that took place sometime late last year and that have culminated in a judgment. Orders were made by his Honour Judge Howard of the Federal Circuit Court, in which I understand he ordered that the parties’ child live with the mother and spend time with the father in circumstances where the father was seeking an order that the child live with him and spend time with the mother. 

21. In summary, it can be said that the father was unsuccessful in obtaining the parenting orders from Judge Howard that he did seek and I understand that prior to the hearing of the trial Judge Howard indicated to the parties that he certainly intended considering a costs application that might be brought by either of the parties after the trial was concluded and indeed even made an order that the parties legal representatives at the time he made the order in mid-2014, write a letter to the parties actually informing them that it was the court’s intention to consider a costs order at the end of the proceedings when they were concluded. 

22. As I say, it is uncontroversial that following the conclusion of those proceedings and whilst I am still reserved in my judgment in the property adjustment proceedings that have taken place in this court, the mother has brought an application in Judge Howard’s court for him to make an order that the father pay her costs or some of her costs in relation to those parenting proceedings determined in his court.  That is currently listed to be heard before Judge Howard on 17 March 2016. 

23. Although the application as drafted in paragraph 1 of the Application in a Case by Mr Loomis is broad in the extreme, catching potentially, if it was to be made, all sorts of applications and proceedings that might be made, initiated or maintained by the mother or her solicitor or agents, when asked, Mr Loomis assured the court that it is really only the costs application in the Federal Circuit Court that he is seeking to restrain the mother from being able to maintain. 

24. In short, Mr Loomis confirmed, when asked a couple of times by me, the same proposition, that it is his submission that the mother ought to be restrained and ought not have the right to bring a cross-application in respect of those parenting proceedings in the court where those proceeding were heard and that indeed any costs application that she wishes to make in respect of those proceedings ought to be heard and determined in this particular court.  In addition, he submitted that it would be unfair and unjust to allow the mother, to go on and make the application and have it heard and determined in the court below when property adjustment proceedings are still reserved and not determined in this particular court.

25. Section 117(2) of the Family Law Act provides the exception to the general principle contained in s 117(1) that each party to proceedings under this Act shall bear his or her own costs. Section 117(2) says that if in proceedings under the Act the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsequent sub-sections that are listed there, make such order as to costs and security for costs whether by way of interlocutory order or otherwise as the court considers just.

26. I am, at first blush, not satisfied that the submission that Mr Loomis makes that any costs application in respect of those parenting proceeding is more properly or appropriately brought by the mother in this court which is seized of the property adjustment proceedings. Indeed, I am not satisfied that pursuant to the Family Law Act, Ms Thurston does have a right to bring proceedings in this Court in respect of costs relating to proceedings under this Act in another court, namely the Federal Circuit Court. 

27. The Family Court and the Federal Circuit Court are two separate courts. The proceedings, namely the parenting proceedings in the Federal Circuit Court and the property adjustment and child support departure proceedings in this court are indeed separate proceedings under the Act. They cannot be described as the same proceedings when parenting proceedings are pending in one court and property adjustment and child support proceedings are pending in this Court. I am not satisfied that Mr Loomis’s submission is a correct one and that Ms Thurston is entitled to make a costs application in this court.

28. That said though, the question then remains whether she ought to be restrained by way of some sort of, as Mr Loomis describes it, ‘antisuit injunction’ from proceeding with her costs application in the other court.  Mr Loomis has really not made submissions that I have understood  about this Court’s power to grant an ‘antisuit injunction’ in respect of that court, so I have not been able to give a great deal of thought to whether or not I do have the power in the circumstances that he suggests that I have.

29. In any event, even if I was satisfied that I had the power to restrain Ms Thurston from prosecuting or maintaining her costs application in the court below, I am far from persuaded by Mr Loomis’s submissions, or the facts of the case, that she ought be so restrained.  I am not minded to grant the order sought by Mr Loomis in the terms of paragraph 1 or in any watered down version that seeks to restrain the wife only from prosecuting a costs application in the FCC.  I do not consider it in the interests of justice to restrain her from bringing an application for costs in respect of the parenting proceedings that have been determined already in the Federal Circuit Court and I do not intend to make such an order. 

30. As I have indicated to Mr Loomis, many of the matters that he made submissions about before me are matters upon which he can make further submissions to Judge Howard when Judge Howard hears the application having regard to the width of s 117(2A) and all the matters listed therein, including the use of the expression  in sub-section (g) of that section “such other matters as the court considers relevant”. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 February 2016.

Associate: 

Date:  23 January 2017