Macarthur & Macarthur (No 3)
[2023] FedCFamC1F 140
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Macarthur & Macarthur (No 3) [2023] FedCFamC1F 140
File number(s): BRC 6154 of 2020 Judgment of: CHRISTIE J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the applicant seeks leave to issue subpoenae under r 6.27 – Where the subpoenaed entities are located overseas – Where the applicant asserts subpoenae is necessary where the respondent has not disclosed her financial circumstances – Where the Hague Service Convention applies – Where the court is satisfied the subpoenae are necessary – Application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.29, 6.27
Family Law Regulations 1984 (Cth) Part IIAB, reg 21AF, reg 21AG, reg 21AH, reg 21AI
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 Article 5
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: Heard on the papers Date of last submission: 1 March 2023 Place: Sydney The Applicant: Litigant in person (no appearance required) The Respondent: Litigant in person (no appearance required) ORDERS
BRC 6154 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MACARTHUR
Applicant
AND: MR MACARTHUR
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
10 March 2023
THE COURT ORDERS THAT:
1.Leave is granted to the husband to issue subpoenae addressed to the Proper Officer of:
(a)J Bank;
(b)K Real Estate;
(c)L Company;
(d)M Finance; and
(e)N Company.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application made to the Court under r 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by the applicant, Mr Macarthur, where he seeks leave to issue subpoenae to J Bank, K Real Estate, L Company, M Finance and N Company.
The applicant says the respondent, Ms Macarthur, has made no disclosure regarding her financial affairs except a set of credit card statements issued in January 2023 with no history attached to them.
THE LAW
Rule 6.27(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that a self-represented party must not request the issue of a subpoena without the permission of the Court.
In determining whether leave should be granted to Mr Macarthur, it is relevant that I take into consideration the process of issuing a subpoena which will be served overseas. Rule 2.49 of the Rules provides as follows:
(1)A person may serve a document on a person in a country other than Australia or New Zealand:
(a)if the country is a party to the Hague Service Convention – in accordance with Part IIAB of the Family Law Regulations; or
(b)if the country is a party to another convention, that is in force for Australia, about legal proceedings in civil and commercial matters – in accordance with Part IIAC of the Family Law Regulations.
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (“the Hague Service Convention”) allows the transmission of judicial documents for service to countries which are a party to the convention. Both Australia and the United States are signatories under the Hague Service Convention and as such an Australian litigant will be able to effect service abroad where he or she adheres to the relevant legislation in the jurisdiction of origin, that is, for this Court, compliance with the Family Law Regulations 1984 (Cth) (“the Regulations”).
Regulation 21AF(1) provides that a person can apply to the relevant Registrar, in the relevant Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document. Subsections (2)-(5) detail the form the request must be made in by the applicant.
If the relevant Registrar is satisfied that the application and its accompanying documents comply with reg 21AF, the relevant Registrar will take the necessary steps under reg 21AG of the Regulations to effect service of the document, in this case, the subpoenae.
Documents are forwarded to the United States Central Authority, being “P Legal” pursuant to Article 5(1)(a) of the Hague Service Convention, which will effect service on the relevant state, then, upon service being completed, the Registrar of this Court will receive a Certificate of Service pursuant to reg 21AH of the Regulations and subsequently, inform the applicant (reg 21AH(1)(b)(ii)).
The applicant may be liable for costs and will be issued with a Statement of Costs in accordance with reg 21AH(3). If the applicant fails to pay the amount within 28 days after receiving notice, except by leave of the Court, the applicant may not take any further steps in the proceedings, in relation to subpoenae served, pursuant to reg 21AI of the Regulations.
Accordingly, the applicant should be aware of his obligations and liabilities under the relevant legislative instruments.
The applicant for leave to issue subpoenae in all cases must demonstrate that the documents sought are relevant to a fact in issue.
CONSIDERATION
I have considered Mr Macarthur’s affidavit of 1 March 2023. I am satisfied that each of the subpoena which Mr Macarthur seeks to issue is relevant to the financial proceedings between the parties because the Court will be asked to make findings at the hearing about:
(a)The beneficial ownership of the property managed by K Real Estate;
(b)The wife’s income and earning capacity; and
(c)The assets and liabilities of the parties.
Mr Macarthur sought to serve the subpoena by email or alternatively by post. I do not have a difficulty with the proposal that he provide a copy of the subpoena by email to the intended recipient but, if he wants to be able to enforce compliance, he will need to follow the process in the Hague Service Convention (as set out on the Commonwealth Attorney General’s website).
Similarly, he will need to redraw each of the subpoenae so that they are addressed to “the Proper Officer” as it is only possible to issue a subpoena to an individual, not an entity.
If the respondent does not follow the Hague Service Convention procedure and the subpoenaed parties do not produce documents in answer to the subpoena, then it will not be possible to make any orders compelling production or impose any sanctions for non-compliance.
Accordingly I will grant leave for the issue of the subpoenae in amended form addressed to “the Proper Officer”.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 10 March 2023
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