Parkes and Parkes (No 3)

[2015] FamCA 1212

FAMILY COURT OF AUSTRALIA

PARKES & PARKES (NO. 3) [2015] FamCA 1212

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – where the wife’s father objects to a subpoena to give evidence in the trial – subpoena struck out for lack of relevance and probative value

Family Law Act 1975 (Cth), s 75(2)(o)

White & Tulloch v White (1995) 19 Fam LR 696

APPLICANT: Ms Parkes

RESPONDENT: Mr Parkes

FILE NUMBER: MLC 5484 of 2014

DATE DELIVERED: 15 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 14 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

Orders

1. The subpoena to give evidence addressed to Mr E filed 18 August 2015 be set aside.

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FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5484 of 2014

Ms Parkes

Applicant

And

Mr Parkes

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Objection to subpoena to give evidence addressed to Mr E filed 18 August 2015

1. The husband has subpoenaed the wife’s father, Mr E, to give evidence in this trial.  There is no affidavit filed or proof of evidence served from Mr E in the trial, perhaps for obvious reasons.  The wife objects to her father being called as a witness for the husband, on the basis that any evidence to be adduced is irrelevant to the issues in the trial.

2. The husband seeks to adduce evidence from Mr E about E Pty Ltd, a company he registered on 4 June 2013.  The wife has disclosed and deposed that she has 250 shares in that company, which are valued at $250, because the assets of the company amount to $1000.

3. I have heard additional evidence in the trial, of course, from the wife and Ms N, who is the accountant for the companies and the wife and also for Mr and Ms E, and that evidence is significant, as is the evidence of the wife.  I have also had an opportunity of observing the witnesses as well, and assessing the evidence of the husband and the wife in this case at this stage.

4. Counsel for the husband seeks to adduce evidence from the wife’s father about the purpose of the company E Pty Ltd and to suggest that, to the extent that the children are shareholders, that it is a testamentary trustee company.  He submits that the relevance of this evidence is a tendency to suggest that the daughters are beneficiaries.  He concedes, on the basis of the authorities and, in particular, the case of White & Tulloch v White (1995) 19 Fam LR 696, that he does not seek to pursue this as a financial resource of the wife, but he wishes to adduce evidence from Mr E for the purposes of section 75(2)(o) factors.

5. He also seeks to adduce evidence from the witness, Mr E, about the deductibility of the expenses for the car driven by the wife based on the financial report for the year ended 30 June 2009, which was referred to the in cross examination of Ms N, the accountant.  This is Exhibit 6.  This report relates to the company E Investments Pty Ltd.  He also seeks to adduce evidence from Mr E about the extent of his wealth and rental income in 2009 in reference to a property in Suburb Q, which was briefly referred to in the evidence of the wife.

6. This is opposed by counsel for the wife on the basis that the evidence of the wife and the accountant and the financial statement of the wife speak for themselves.  The future intentions of the wife’s father are irrelevant and there is no necessary connection between the evidence that the company E Pty Ltd was constituted possibly with a view to being used as a testamentary trust, and any suspected expectancy.

7. I made an earlier ruling setting aside a number of subpoenae issued by the husband.  The same reasons given for that ruling apply here.  The evidence in the trial has not changed the facts in my view, having taken the opportunity of reviewing all of my notes in relation to that evidence, and considering the evidence of the wife and her accountant, which is important to my decision here, because what I was concerned about yesterday was whether there was any evidence that could be relied upon in the trial to establish a sufficient nexus with what is then asserted on the husband’s case.  After having reviewed all of that evidence, it has not changed the situation, in my view, and it does not provide a basis for adducing the same evidence through Mr E.

8. The new evidence relied upon by the husband is not evidence of the existence of a testamentary trust, but, at its highest, evidence that the company E Pty Ltd might be used in the future for that purpose.  The assets of that company amount to $1000, and the wife has a shareholding of 250 $1 shares.  There is no other evidence which might be a foundation for the relevance of the evidence sought to be adduced from Mr E about this company, and having reviewed the evidence of the wife about the limited extent of her involvement with the company, I am comfortably satisfied in coming to that conclusion.

9. There is no worthwhile nexus with this evidence and the husband’s case that there is an expectancy for the wife or that she is a beneficiary in some way from a testamentary trust.  The other evidence about E Investments Pty Ltd, the wife’s use of the car is not relevant.  It is conceded that the wife has had and will continue to have the benefit of the German car, which she has had through her father’s loan account from the company E Investments Pty Ltd.  There is no basis to extend the trial by adducing evidence from Mr E, and any evidence he could give is limited as the witness of the husband.  There is the additional aspect that there is no affidavit and no proof of evidence from the witness who has been subpoenaed, which does not afford procedural fairness to the wife.

10. I am not satisfied that in all the circumstances, having heard the evidence of Ms N and the wife and the concession made by counsel for the wife yesterday, that the wife’s father will continue to provide her with the use of a motor vehicle and will continue to fund her insurance and registration that the evidence of Mr E is relevant to the issues in this trial. Accordingly the husband’s application to adduce evidence from the wife’s father, Mr E is refused and the subpoena to give evidence is set aside.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 October 2015.

Associate: 

Date:  5 February 2016