Moffett & Moffett (No 2)
[2023] FedCFamC1F 733
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moffett & Moffett (No 2) [2023] FedCFamC1F 733
File number(s): SYC 6888 of 2018 Judgment of: CHRISTIE J Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Leave to issue subpoenas – Purpose of subpoena – Order granting leave to issue subpoena for documents from a particular date onwards – Order granting leave to issue subpoena with the excise of the words “and recommendations” – Leave to file updated affidavit evidence – Where any proposed updated affidavit ought be served for adjudication at the commencement of final hearing. Legislation: Family Law Act 1975 (Cth) s 75(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2023 (Cth) r 6.28
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 25 August 2023 Place: Sydney Solicitor for the Applicant: Macquarie Law Group Solicitor for the Respondent: Santo Family Lawyers ORDERS
SYC 6888 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MOFFETT
Applicant
AND: MR MOFFETT
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.Leave is granted to issue a subpoena to Mr R of S Accountants in the proposed terms sought by the wife.
2.Leave is granted to issue an updating subpoena address to Mr T at D Company provided the documents to be sought are those from 10 December 2022 and the form of that subpoena will be as attached to these reasons for judgment.
3.Leave is granted to issue a subpoena to Dr U in the terms sought save and except that the words “and recommendations” will be excised from the proposed paragraphs 2, 3, 4 and 6.
4.The parties are directed to serve on one another any proposed affidavit of updating evidence prior to the trial for consideration of leave at the trial.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J
On 22 August 2023 the wife’s solicitor sought leave to file to file three subpoenae in this matter and in an accompanying letter to the Court dated 21 August 2023 (“the letter to Court”) the wife’s solicitor also sought leave to file an updating affidavit after receiving correspondence from the husband’s solicitor in regard to the husband’s share portfolio.
The three subpoenae the wife seeks to file include:
(a)A subpoena to Mr R of S Accountants, who is the husband’s accountant.
(b)Mr T at D Company; and
(c)Dr U, a psychologist.
Subpoena to accountant
There is a dispute between the parties which relates to the basis upon which the wife sought the subpoena issue. I do not intend to adjudicate that dispute nor do I make any findings about the competing contentions.
The husband is not opposing the subpoena issuing and it may issue as drafted.
Subpoena to D Company
The wife, through her lawyers said that a subpoena to Mr T of D Company is appropriate because Mr T was the “contact” employee at D Company provided by the husband’s legal representatives when the wife’s Application in a Proceeding was before the Court on 1 June 2023. The wife contended in the correspondence sent to the Court that the husband has not complied with his duty of disclosure by failing to disclose the number of shares, both vested and unvested, that he holds with D Company. At this stage the wife’s contention is an allegation that the husband has not complied with his duty of disclosure. The wife says that Mr T will assist as a third party in verifying how many shares the husband holds.
The husband does not oppose the issue of a subpoena to D Company, or Mr T specifically at D Company, provided that it is to update the Court in circumstances where four subpoena have issued to D Company to date.
The husband’s solicitor said, correctly, that rule 6.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the Court must not issue subpoena if documents are already in the possession of the Court.
The Court has documents up to 10 December 2022. The Court will be assisted by documents from 10 December 2022 being the last date of production.
The wife is concerned about the husband’s disclosure but as previously canvassed she does not point to any concrete foundation which would satisfy the court that her concerns have a foundation.
The issue of a subpoena is not designed to allay concerns of one party or the other. The issue of a subpoena is designed to compel the production of evidence to assist in the forensic process.
If the wife is correct in having a suspicion that the documents produced do not accurately represent the position of the husband with his employer, it is likely that this updated subpoena directed specifically to Mr T will highlight any inconsistencies for her. I therefore propose to grant the subpoena directed to Mr T but from 10 February 2022 onwards. To that extent the subpoena will need to be updated and attached and marked as “Schedule 1” to these settled reasons a will be a copy of the terms in which the subpoena may issue.
Subpoena to psychologist
The wife sought a subpoena to Dr U who is the treating clinical psychologist of the children. It was a subpoena to produce documents and give evidence.
In her supporting correspondence the wife submitted that she has been solely responsible for taking the children to and funding the appointments with Dr U on a fortnightly basis.
The wife contends that such costs associated with ongoing treatment, particularly for X, would be a relevant factor under s 75(2) of the Family Law Act 1975 (Cth).
The wife contends that Dr U would be able to estimate costs with ongoing treatment. If the wife wishes to provide that evidence it cannot be through a subpoena to give evidence but is more properly undertaken in the form of a report attached to an affidavit.
It is the case that Dr U will only be able to produce any information contained within the file. The purpose of the issue of a subpoena is not for generation of documents. To the extent the wife contends that the documents might go to the question of costs, those documents would have to be located in the file.
The solicitor who appeared on behalf of the husband raised a concern about paragraphs of the proposed subpoena which referred to recommendations.
I accept that the subpoena as currently drafted as currently drafted will provide information which will be of utility to the Court. I accept that the inclusion of the expression “and recommendations” might cause the person receiving the subpoena, who is not aware that the subpoena is only limited to documents already in their possession or control, to believe that they are required to make recommendations. If those recommendations are contained within the reports, findings, results and notes then they will come before the Court by reason of answer to the subpoena. I will therefore grant leave for the subpoena to issue, excising the word “and recommendations”.
Updating affidavit
The wife also sought leave to file an updating affidavit after receiving correspondence from the husband’s solicitor on 1 August 2023 regarding the husband’s share portfolio.
It is appropriate for parties to file updating evidence in circumstances where they have firsthand knowledge of changed facts and circumstances relevant to the Court. If those changed facts and circumstances arise out of disclosure it is often appropriate that that lacuna in the evidence be remedied by the tender of documents rather than the filing of any further affidavit. However, should either party seek to rely on a further affidavit at trial which has been filed after the directions for trial required that material be filed, then he or she should promptly serve upon the other party a copy of the proposed affidavit so that the issue of leave can be dealt with on the first day of the trial.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 25 August 2023
SCHEDULE 1 – UPDATED TERMS IN WHICH THE SUBPOENA MAY ISSUE
The subpoena, if granted, would order Mr T to produce:
1. A copy of this Subpoena;
2.Copies of the following documents in relation to [Mr Moffett] (DOB […] 1975);
a. All total reward statements from 10 December 2022 to date;
b. All annual reviews including, but not limited to salary, bonuses and shares from 10 December 2022 to date;
c. Reward packages, salary increases, awards and/or commission received under any 'Long term incentive plan', by way of cash or deferred shares after 10 December 2022;
d. Records of all and any national dividend payment from 10 December 2022 to date;
e. A list of all and every position held with [D Company] from 10 December 2022including position description, job grade or level, contract term;
f. All and any employment contract from 10 December 2022 to date;
g. A record of work entitlements whilst at [D Company] for each position held from 10 December 2022 to date, including, but not limited to;
I. Accumulated long service leave;
II. Motor vehicle allowance;
III. Expatriate medical insurance;
IV. Family benefits;
V. Payment or re-imbursement of school fees/school-related expenses (including persons named in this entitlement); and
VI. Rental assistance;
h. All and any communication whether via text, whatsapp or otherwise between you and [Mr Moffett] (born […] 1975) in relation to any dividend payment(s) from 10 December 2022to date;
i. All and any transactions of superannuation payments made to [Mr Moffett] globally including transfers to any trust funds to which [Mr Moffett] is trustee or beneficiary from 10 December 2022;
j. A copy of all pay slips for [Mr Moffett] from 10 December 2022 including details of bank accounts to which these funds were deposited, including payments made globally;
k. All shares received under all and any plans from 10 December 2022;
l. All and any emails sent to [Mr Moffett] with respect to 'early payment of bonus' including bonuses paid from 10 December 2022;
m. Position details for each secondment after 10 December 2022 including, but not limited to;
i. home allowance;
ii. rental assistance;
iii. annual gross base salary for home and host;
iv. employee pension allowance;
v. essentials allowance for home and host;
vi. relocation support;
vii. temporary allowance (home and host) ;
viii. tax services offered for home and host; and
ix. hardship allowance, family support and furniture allowance.
n. Finalised and signed Assignment Statements for [Country V] and USA positions; and
o. Signed SF Compensation Summaries for the years 2022 and 2023.
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