PARKER & PARKER

[2015] FamCA 745

FAMILY COURT OF AUSTRALIA

PARKER & PARKER [2015] FamCA 745

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Application by wife’s legal personal representative issuing a subpoena seeking information about husband’s sister – Issue of relevance and “fishing” – Subpoena set aside – Costs reserved

Family Law Act 1975 (Cth)

APPLICANT: Mr Tanakis (Legal Personal Representative for the late Ms Parker)

RESPONDENT: Mr Parker

FILE NUMBER: MLC 4729 of 2014

DATE DELIVERED: 11 August 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 11 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Byrnes

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Perry Weston Lawyers

Orders

1. These proceedings be listed for mention at 10.00am on Tuesday 25 August 2015 at Melbourne.

2. Costs of both parties be reserved.

   IT IS DIRECTED

3. A copy of the reasons in relation to production of subpoena be taken out and placed on the court file.

   IT IS CERTIFIED

4. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parker v Parker 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 HOBART

FILE NUMBER: MLC 4729 of 2014

Mr Tanakis (Legal Personal Representative for the late Ms Parker)

Applicant

And

Mr Parker

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application to set a subpoena aside addressed to the sister of the husband in these proceedings.  In this case the wife has passed away and her legal personal representative has been appointed.

2. The evidence is that the husband’s sister is elderly, having attained the age of 80 years, and is living in a nursing home.  There is some evidence that the sister had made a will and that the husband is a beneficiary of that will.  There is no evidence as to the state of health of the sister, apart from her being in a nursing home and being an octogenarian.

3. The sister has executed a power of attorney.  That makes little or no difference.  Many people aged from 18 onwards prudently enter into powers of attorney. The power of attorney itself can only be prima facie evidence that the person, at the time they executed the power of attorney, had capacity otherwise that document could not have been entered into.

4. I am not satisfied, at this stage, that the case has been made out for that subpoena to be treated other than as a fishing expedition and, as such, the subpoena is set aside.  Hopefully the other matter will settle and this matter can proceed.  I certify for counsel.  I will ask that these reasons be taken out and placed on the court file.

5. I will reserve costs of each party.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 August 2015.

Associate:     

Date:              11 August 2015