Parkes and Parkes (No 2)

[2015] FamCA 1211

FAMILY COURT OF AUSTRALIA

PARKES & PARKES (NO. 2) [2015] FamCA 1211

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – where the wife’s parents object to subpoenae to produce documents – subpoenae struck out for lack of relevance.

Family Law Act 1975 (Cth), s 75(2)
Family Law Rules 2004 (Cth), r 15.26

White & Tulloch v White (1995) 19 Fam LR 696
De Angelis & De Angelis [1999] FamCA 1609

APPLICANT: Ms Parkes

RESPONDENT: Mr Parkes

INTERESTED PARTIES: Mr & Ms E

FILE NUMBER: MLC 5484 of 2014

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Dickson QC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE INTERESTED PARTIES: Ms Vohra

SOLICITOR FOR THE INTERESTED PARTIES: Sharrock Pitman Legal

Orders

1. The following subpoenae be set aside:

   (a)Subpoena to Produce Documents addressed to Mr E filed 22 June 2015;

   (b)Subpoena to Produce Documents addressed to Ms E filed 22 June 2015;

   (c)Subpoena to Produce Documents addressed to E Family Holdings Pty Ltd filed 22 June 2015; and

   (d)Subpoena to Produce Documents addressed to E Investment Pty Ltd filed 22 June 2015.

2. In the event that the respondent and the interested parties are unable to agree in writing within 30 days of today’s date what costs order, if any, might be made regarding the costs of and incidental to the subpoena objection proceedings:

   (a)the respondent and interested parties each file within a further 14 days written submissions in respect that issue; and

   (b)unless either the respondent or the interested parties otherwise therein contends to the contrary, that issue be determined in Chambers without the necessity of further appearance by the party.

3. In the event that the respondent and the interested parties reach agreement in writing on the issue of costs, they be at liberty to file jointly signed minutes of consent via email to the Associate to the Honourable Justice Thornton.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5484 of 2014

Ms Parkes

Applicant

And

Mr Parkes

Respondent

And

Mr & Ms E

Interested Parties

EX TEMPORE

REASONS FOR JUDGMENT

Objection to subpoenae to produce documents addressed to Mr and Ms E filed 22 June 2015

1. The husband filed and served subpoenae on 22 June 2015 addressed to both Mr and Ms E, the wife’s parents, seeking a copy of his or her current Will and copies of all previous Wills made since 1 January 2004.  The husband now no longer presses the subpoena of copies of all previous Wills made since 1 January 2004.

2. Objections were filed on behalf of both Mr and Ms E on 15 July 2015, objecting to production of the documents on the basis of relevance. They seek that the subpoenae be set aside pursuant to rule 15.26 of the Family Law Rules.

3. Mr is 87 years old and Ms is 85 years old.  Neither has a guardian appointed to manage his or her affairs and both have capacity to provide instructions for this objection.  The husband has subpoenaed both to give evidence, clearly acknowledging that they are capable of so doing.  Both retain testamentary capacity and there is no evidence of suggestion otherwise.  They remain in charge of their own affairs.

4. The husband concedes that it is ultimately a question of fact and degree in determining the relevance here.  In the decision of the Full Court of this Court in White & Tulloch v White (1995) 19 Fam LR 696 at 706 Fogarty, Kay and Hilton JJ stated:

   … The ultimate criterion is whether the evidence is, or may be, relevant to the just and equitable process under s 79. An expectancy of inheritance will not be relevant in many s 79 proceedings. In the end, relevance must depend upon the nature of the claims being put forward and the facts of the particular case. For example, if the claims were based entirely upon contributions, it could not be suggested that an issue of expectancy could be relevant because no s 75(2) factors would be involved. Where the claim includes s 75(2) factors, the nature or degree of suggested relevance between those specific claims and the expectancy in question would need to be analysed. That is to say, there must be a worthwhile connection between a specific element of the party's case and the suggested expectancy.

   … initial relevance in the particular case needs to be established … 

5. The husband has failed to discharge the onus that there is a legitimate forensic purpose in the production of the Wills of the wife’s parents. The nature or the degree of suggested relevance when analysed here does not have a worthwhile connection between a specific element of the husband’s case – in other words, section 75(2) factors – and the suggested inheritance or expectancy of the wife.

6. The husband relies upon the cases of White and Tulloch v White (1995) 19 Fam LR 696 (“Tulloch’s case”) and De Angelis & De Angelis [1999] FamCA 1609 (“De Angelis’ case”).  The facts here are distinguishable from those cases.  This case involves two healthy parents of the wife possessed of testamentary capacity and in charge of their own affairs.  Either parent may leave the entirety of any inheritance to the other partner.  The expectancy of an inheritance is purely speculative and even more so where there are two parents as in this case, which distinguishes it from the case of the widow in Tulloch’s case and the aunt in De Angelis’ case.

7. The aunt there had lost testamentary capacity at the time the case was decided and the house, said to be the subject of the inheritance, was already treated by the wife in that case as her own. 

8. The husband relies upon the fact that the trial judge in Tulloch’s case ordered the production of the Will, but the facts are distinguishable and in any event, the matter is discretionary.  I am not satisfied that there is any relevant legitimate forensic purpose in the subpoena of the Wills of Mr and Ms E and I propose to set aside those subpoenae.

Objection to the subpoena of the financial records of E Holdings Pty Ltd

1. Mr E, as the proper officer of the company, E Holdings Pty Ltd objects to the subpoena of the financial records of E Holdings Pty Ltd on the grounds that they are not relevant. I accept the submissions of the interested parties that this subpoena amounts to “a fishing expedition” because the wife has never held office in this company and has never been a share holder of the company.  There is no connection between the parties and this company which is owned by the wife’s parents.

2. The relevance of the subpoena cannot be demonstrated on the material filed before the Court.  The subpoena will be set aside as an abuse of process.  It has no legitimate forensic purpose.

Objection to the subpoena of the financial records of E Investments Pty Ltd

1. Mr E, as the proper officer of the company, E Investments Pty Ltd objects to the subpoena for the production of financial records for the company on the basis of relevance.

2. I am also not satisfied that there is any legitimate forensic purpose in the subpoena for the financial records of E Investments Pty Ltd because the husband has failed to satisfy the onus that there is any relevance in the production of taxation returns, financial records and ATO activity statements for that company E Investments Pty Ltd from 30 June 2010 to date in circumstances where the company is not a trustee for any trust and the wife has never been a shareholder of the company.

3. This is a company of the wife’s parents and the wife has not ever controlled the company or owned the company at the relevant time.  The documents sought relate to a period after the wife ceased her role as director.  The husband is aware that the wife has received the benefit of the use of the company car which has been conceded from the outset. There is no evidence that the wife or husband have a role in the company for the years for which the comprehensive financial documents are sought.  There is evidence that the wife assisted her parents by running errands and paying invoices on their behalf during periods of about six weeks when they were out of the country.  There is no evidence that she was remunerated as an employee or a beneficiary of the company. It was common ground that the car was provided for the use of the wife at the beginning of the marriage through her father’s loan account from the company.

Subpoenae addressed to E Pty Ltd

1. The response to the subpoena to E Pty Ltd speaks for itself and no documents matching the description in the subpoena exist and therefore cannot be produced.  The proper officer of that company has answered the subpoena. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 12 October 2015.

Associate: 

Date:  5 February 2016