Parsi & Zomorod
[2023] FedCFamC1F 169
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parsi & Zomorod [2023] FedCFamC1F 169
File number(s): SYC 1965 of 2021 Judgment of: CHRISTIE J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the applicant seeks specific disclosure from the respondent – Where the respondent objects on the basis of relevance and the applicant’s past conduct – Where the documents are prima facie relevant – Where it is appropriate for discovery to be ordered. Legislation: Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.04
Evidence Act 1995 (Cth) ss 55, 56
Division: Division 1 First Instance Number of paragraphs: 15 Date of last submission/s: 3 March 2023 Date of hearing: Heard on the papers Place: Sydney Solicitor for the Applicant: Holmes Donnelly & Co Solicitors (no appearance required) The First Respondent: Litigant in person (no appearance required) Solicitor for the Second Respondent: Broun Abrahams Burreket (no appearance required) ORDERS
SYC 1965 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARSI
Applicant
AND: MR ZOMOROD
First Respondent
B PTY LTD
Second Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
23 March 2023
THE COURT ORDERS THAT:
1.Within 28 days the husband provide to the exhibits section of the Federal Circuit and Family Court of Australia (Division 1) all emails sent and received from the email accounts …@... and/or …@... and …@... for the period 30 March 2020 to 9 November 2020 inclusive.
2.Upon the wife filing an undertaking, all parties have liberty to inspect the documents so produced.
3.The matter be listed for a case management hearing at 9.30 am on 12 October 2023.
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 the pseudonym Parsi & Zomorod has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This matter came before the Court for directions on 28 February 2023. On that date the applicant wife sought an order that the first respondent husband provide copies of all emails sent and received from the …@... email account during the period 30 March 2020 to 9 November 2020.
The husband, as the first respondent and director of B Pty Ltd, the second respondent, opposed the making of that order and indicated that the opposition was based on a concern about the use to which the wife would put documents provided through the process. It was necessary, in my view, that the matter be adjourned so that each party could put before the Court evidence which supported the making of orders as sought by them and accordingly, I made directions on that day that the parties may file affidavits in respect of the proposed order and adjourned the matter to chambers for consideration. The parties complied with the order to file affidavits on 3 March 2023 and each party filed an affidavit by him or herself on that day. I have had regard to that material in considering this application.
THE LAW
At this stage of the proceedings, the parties are in contest over documents which should be disclosed. Arguments about whether or not documents should be disclosed in the proceedings are informed by the issues in the case, the Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and in a broader sense, by the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) which deal with admissibility in due course.
The parties are subject to a general duty of disclosure as provided for in r 6.01 of the Rules:
(1)Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
Note:The proceedings to which the duty of disclosure applies include both parenting proceedings and financial proceedings. Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court.
(2)The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.
Note:Parties are also expected to comply with the duty of disclosure when complying with the pre‑action procedures.
(3)The duty of disclosure also applies to a litigation guardian appointed under Part 3.5.
(4)This rule does not apply to a respondent to an application alleging contravention or contempt.
Importantly, r 6.04 of the Rules governs the use to which documents can be put:
(1)A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2) However:
(a)a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b)a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c)this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
When a request is made for a specific class of documents, a party may object on the grounds that the documents are not relevant to a fact in issue in the proceedings. Section 55 of the Evidence Act provides:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Section 56 of the Evidence Act provides:
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
CONSIDERATION
The wife in her affidavit seeks an order which is different in form, although not necessarily in content, to that which she sought when the matter was before the Court for directions. She now seeks an order as follows:
That within 28 days from the date of the Orders, the Second Respondent shall provide to my solicitors copies of all emails sent and received from the email accounts […@...] and/or […@...] and […@...] from the period 30 March 2020 to 9 November 2020.
(As per the original)
She offers an undertaking without admissions that she will not provide documents produced in the proceedings to a third party or to anyone other than for the purpose of obtaining legal advice.
It is plain that the Rules oblige the wife to conduct herself in that manner in any event.
The husband for his part is cautious about the Court making orders which have the effect of providing copies of documents to the wife and says that the basis upon which he resists the making of the order is as follows:
(1)Relevance; and
(2)The wife’s past conduct.
These are interlocutory proceedings and it is not possible for me to make a finding about whether or not the wife’s actions in speaking to others about the husband’s conduct were responsible for the failure of the initial capital raising by the company. It is clear from the evidence of both the husband and wife that the wife did speak to people who were involved in the business undertaken by the husband at the time and that the capital raising did not succeed. Whether the two are related may be a matter for evidence and findings in due course. Suffice to say, the husband’s caution is understandable.
The other basis of the husband’s opposition however, is not made out. The husband says that the documents are not relevant and, in particular, not relevant to valuation of the entity. He may be correct about that however, at this stage of the proceedings, they are relevant because the wife says that the parties are in issue about whether or not she was employed by the company at the relevant time. The wife says these emails are emails sent from an account in her name and evidence work undertaken by her. Whether or not this was formally or informally as an employee of the entity may not be of any great moment. Where the parties are in issue about something which might be relevant to determination of their respective contributions, then the documents are prima facie relevant and therefore, prima facie admissible. In those circumstances it is appropriate that there be an order that they be discovered.
Having regard to the husband’s concerns, I will accept the undertaking given by the wife and will require her to give it formally before the documents are to be produced. She should do that by completing, signing and filing an undertaking in the following terms:
“I undertake to the Court that I will not provide any documents produced in these proceedings to any third party other than for the purpose of obtaining legal or financial advice”.
Further, I will require that the documents be produced to the exhibits section of the Federal Circuit and Family Court of Australia (Division 1) and may be inspected in that place. At this stage, I do not grant leave for the documents to be photocopied. It is my view that the above procedure strikes a balance between each party’s legitimate interest in the proceedings.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 23 March 2023
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