Millman & Millman

Case [2021] FedCFamC1F 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Millman & Millman [2021] FedCFamC1F 39

File number(s): ADC 30 of 2020
Judgment of: BERMAN J
Date of judgment: 14 September 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of Decision – Subpoenas – Where the Department of Home Affairs produced documents sought under Subpoena – Where the husband and the second respondent objected to the Subpoena – Where a Registrar made orders for the inspection of some of the subpoenaed material – Where the husband and second respondent sought a review of the decision – Discussion of the practice and procedures where a subpoena for the production of documents is issued – Consideration of whether the documents sought under the subpoena are relevant to issues in the proceedings – Consideration of whether the second respondent would have been required to provide the Department with information in relation to his financial circumstances when applying for a visa or citizenship – Where the wife would not have known at the time the subpoena was issued whether the second respondent would have been required to provided the Department with financial information – Subpoena set aside.    
Legislation:

Migration Act 1958 (Cth) s 499

Family Law Rules 2004 (Cth) Ch 13, Pt 15.3

Migration Regulations1994 (Cth) Sch 1, Sch 2

Cases cited:

Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419

Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648

Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038

Hennessy v Wright (No. 2) (1888) 24 QBD 445

Lucas Industries Ltd v Hewittand Others (1978) 18 ALR 555

Martin & Martin and Anor (No.2) [2014] FamCA 232

National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372

Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683

Ryder & Lee [2009] FamCA 531

Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476

Woley & Humboldt (No. 4) [2009] FamCA 546

X Pty Ltd and Ors & Merhi [2015] FamCA 622

Division: Division 1 First Instance
Number of paragraphs: 55
Date of hearing:  11 August 2021
Place: Adelaide
Counsel for the Applicant: Mr Bullock
Solicitor for the Applicant: Douglas Hoskins Legal
Counsel for the First Respondent: Ms Lewis
Solicitor for the First Respondent: Jacqui Ion Lawyers Pty Ltd
Counsel for the Second Respondent: Mr Heinrich
Solicitor for the Second Respondent: Angela Ferdinandy

ORDERS

ADC 30 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FAZIL

Applicant
AND:

MS MILLMAN

First Respondent

MR MILLMAN

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS:

1.That the subpoena directed to the Proper Officer of the Department of Home Affairs issued on 26 May 2021 be set aside.

2.That the documents produced by the Proper Officer on behalf of the Department of Home Affairs remain in the Adelaide Registry of the Family Court…

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Details
AGLC
Millman & Millman [2021] FedCFamC1F 39
Case
[2021] FedCFamC1F 39
Decision Date

CaseChat Overview and Summary

The case of Millman & Millman before Berman J in the Federal Circuit and Family Court of Australia involved a dispute regarding the issuance and enforcement of a subpoena in family law proceedings. The applicant, Mr Fazil, and the first respondent, Ms Millman, were parties to family law proceedings, with Mr Millman also involved as the second respondent. Ms Millman had issued a subpoena seeking the production of documents from the Department of Home Affairs, which were subsequently produced. Both Mr Fazil and the second respondent objected to the subpoena, leading to a review by a Registrar who made orders for the inspection of some of the subpoenaed material. The husband and the second respondent subsequently sought a review of the Registrar's decision.

The court needed to decide whether the issuance of the subpoena was justified and whether it was an abuse of process. The central legal issues included the relevance of the documents sought under the subpoena to the issues in the proceedings, the circumstances under which Mr Fazil may have been required to disclose his financial circumstances as part of his visa and citizenship applications, and whether Ms Millman could have reasonably known at the time of issuing the subpoena that such information might be relevant. The court also had to consider the appropriate use of subpoenas in family law matters, particularly in relation to third-party discovery.

Berman J concluded that at the time the subpoena was issued, Ms Millman could not have reasonably known that Mr Fazil would have been required to disclose his financial circumstances as part of his visa and citizenship applications. The court found that the issuance of the subpoena appeared to be a fishing exercise and thus could not be sustained. The judge set aside the subpoena directed to the Department of Home Affairs and ordered that the documents produced by the Department remain in the registry for 28 days. During this period, Ms Millman had the opportunity to file a further subpoena if she could establish a basis for relevance. If no further subpoena was filed within 28 days, the documents would be destroyed.

The court's orders included setting aside the subpoena issued on 26 May 2021 and directing that the documents produced by the Department of Home Affairs remain in the Adelaide Registry of the Family Court of Australia for 28 days. If Ms Millman did not file a further subpoena within this period, the documents would be destroyed.

Orders

Orders of the court

ADC 30 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FAZIL

Applicant

AND:

MS MILLMAN

First Respondent

MR MILLMAN

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS:

1. That the subpoena directed to the Proper Officer of the Department of Home Affairs issued on 26 May 2021 be set aside.

2. That the documents produced by the Proper Officer on behalf of the Department of Home Affairs remain in the Adelaide Registry of the Family Court of Australia for a period of twenty eight (28) days at which time unless the wife has filed a further subpoena in relation to the said documents, they shall be destroyed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At this stage, I do not consider that at the time this subpoena was issued the wife would have been in any position to know that Mr Fazil would have been required to disclose his financial circumstances as part of his visa and citizenship applications.CONCLUSION The issue of the subpoena to the Department must be considered as a fishing exercise and cannot be sustained. I propose to order that the subpoena directed to the Proper Officer of the Department of Home Affairs issued 26 May 2021 be set aside. Mr Fazil is not able to recall whether he was required to provide specific information as to his financial circumstances. He does not deny that such a request or obligation may have been made or occurred but rather that the elapse of time is such that he cannot now remember. Implicit in these reasons is that documents that go to Mr Fazil’s financial circumstances during the course and currency of the purported loan with the husband would be relevant to an issue in the proceedings. The difficulty for the wife is that a subpoena is not intended to be used as an alternative to third party discovery. To do so would be an abuse of process. For a subpoena to issue, it must be likely that relevant documents form part of the subpoenaed material. Given that Mr Fazil does not know and cannot remember whether financial information was required in support of his visa and citizenship applications, the wife should be given an opportunity to better provide a basis to establish that relevant documents exist. I propose to order that the documents produced by the Department, pursuant to the subpoena, remain in the registry for 28 days pending the filing of a further subpoena by the wife, in the absence of which the documents will be destroyed. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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