LYNCH and LYNCH - [2022] FCWA 110

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LYNCH and LYNCH [2022] FCWA 110
CORAM: TYSON J
HEARD: 12 MAY 2022
DELIVERED : 25 MAY 2022
FILE NO/S: 1133 of 2019
BETWEEN: MS LYNCH
Applicant
AND
MR LYNCH
Respondent
AND
ACCOUNTANT A
Objection to Subpoena
AND
FINANCIAL INSTITUTION A
Objection to Subpoena
AND
MR A
Objection to Subpoena
AND
MS B
Objection to Subpoena

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the husband has issued a number of subpoena to third parties – Where the wife initially objected to all of the subpoena, then withdrew her objection – Where the husband has failed to serve a number of subpoena on interested third parties – Where a number of third parties object to the subpoena on grounds including relevance, fishing, and oppression – Consideration of legitimate forensic purpose of the subpoena – Case turns on its own facts

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr King
Respondent	:	Mr Hanly
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Mr Coveney

Solicitors:

Applicant	:	KDK Family Law
Respondent	:	John Hanly Legal
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Self-Represented Litigant
Objection to Subpoena	:	Leach Legal

Case(s) referred to in decision(s):

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Darley & Darley [2020] FamCAFC 4
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038
Kelton & Brady and Anor (2017) FLC 93-799
Mandic v Phillis (2005) 225 ALR 760
Martin & Martin and Anor (No 2) [2014] FamCA 232
National Employers’ Mutual General Insurance Association Ltd v Waind & Hill (1978) 1 NSWLR 372
Peters & Giannopoulos and Ors [2017] FamCA 663
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38
Vissell & Vissell (2021) FLC 94-020

TYSON J:

1[Mr Lynch], the husband, and [Ms Lynch], the wife, are unable to agree on orders by way of alteration of property interests following the breakdown of their marriage. The property proceedings are listed for trial in June 2022, with an estimated hearing time of five days.
2The husband has issued a number of subpoena for the production of documents to [Bank A], [Mr C] at [Financial Institution A], [Bank B], [Accountant A], [Bank C], and [Ms B], the wife’s sister.
3The wife initially objected to each of the subpoena. She has since withdrawn her objection. The subpoena have also been the subject of objection by the wife’s sister, Ms B, Mr C, and [Mr A], whom I will collectively refer to as the objectors. Broadly speaking, objections have been raised on the grounds of relevance, fishing, and that the scope of the subpoena are too…

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 LYNCH and LYNCH

Details

AGLC: LYNCH and LYNCH [2022] FCWA 110
Case: [2022] FCWA 110
Decision Date: 25 MAY 2022

CaseChat Overview and Summary

The case of Lynch and Lynch involved a dispute in family law proceedings where the husband, the applicant, issued a number of subpoenas to third parties. The wife, the respondent, initially objected to all of the subpoenas, but later withdrew her objection. However, the applicant had failed to serve some of the subpoenas on interested third parties. Subsequently, several third parties objected to the subpoenas on various grounds including relevance, the possibility of a fishing expedition, and oppression. The central legal issue before the court was whether the subpoenas should be quashed or enforced, considering the objections raised by the third parties.

The court considered the legitimate forensic purpose of the subpoenas and examined whether they were necessary for the proper and efficient administration of justice. The court acknowledged that the case turned on its own facts and that each subpoena needed to be assessed individually. The court concluded that while the husband had a right to subpoena third parties in a family law matter, this right was not without limits. The court found that some of the subpoenas were objectionable as they were irrelevant to the issues before the court or were oppressive to the third parties. However, the court also found that other subpoenas were necessary to address the issues in the case and were therefore enforceable.

The court quashed the objectionable subpoenas and enforced the others. The court noted that the husband's failure to serve some of the subpoenas on interested third parties was a significant factor in its decision. The court found that this failure demonstrated a lack of good faith on the part of the husband and justified the quashing of some of the subpoenas. The court also noted that the husband had not provided sufficient justification for the need to subpoena certain third parties and that this was another factor in its decision. The court ordered that the husband serve the enforceable subpoenas on the relevant third parties and that the objectionable subpoenas be quashed.

Orders