Paterson & Hamdy (No 2)
[2022] FedCFamC1F 716
Federal Circuit and Family Court of Australia
(DIVISION 1)
Paterson & Hamdy (No 2) [2022] FedCFamC1F 716
File number(s): SYC 1229 of 2018 Judgment of: BAUMANN J Date of judgment: 26 August 2022 Catchwords: FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – Where a Registrar granted leave for the mother to file an objection to subpoena out of time – Review Application dismissed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 1.31, 6.38 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 26 August 2022 Place: Brisbane The Applicant: Litigant in person Solicitor for the Respondent: Ms Court, John Spence & Associates ORDERS
SYC 1229 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PATERSON
Applicant
AND: MS HAMDY
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS:
1.That the Applicant father’s Application for Review filed 11 August 2022 be dismissed.
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 Paterson & Hamdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
There are presently longstanding parenting issues before this Court in the Sydney Registry relating to a child of the relationship, Y, who is now 12 years of age. It is not necessary for this Review Application to deal significantly with the history, although it is apparent from the material I have read that it is a difficult matter with many issues to be resolved by the Court. What is clear is that the father, as he is perfectly entitled to do, filed on 28 April 2022 a subpoena directed to the mother in which he seeks her to produce what is described in these terms “various documents”, namely:
2.[MS HAMDY] the Respondent to produce to the Court in the original state the box that the [Applicant MR PATERSON] gave her on around the 4th of August 2015 for safe keeps with the complete contents in it. This box contains most of the family memories from February 2004 till August 2015 such as pictures and video footage and cards in Australia while living as a family and overseas while on holidays of the children [X] and [Y] and the Respondent [MS HAMDY] and the [Applicant MR PATERSON]. This box was photographed by the police on the 11th of August 2015 while in the possession of [MS HAMDY] at the apartment where she just newly resided in [Suburb G] with the children.
A copy of the photograph that was taken by the police of the box that is in [MS HAMDY’s] possession was produced to the Court by the Applicant MR PATERSON in 11Annexure 1" in the Second Affidavit filed by the Applicant on the 4th of November 2021 to support the Application in a case. (Any attempt to hide or destroy the complete contents of that box will be tampering with evidence).
3.[MS HAMDY[ THE RESPONDENT to produce to the Court in the original state the Laptop that the [Applicant MR PATERSON] gave her for safe keeps on around the 4th of August 2015. On this Laptop there is a Crypto Currency wallet with around 2,400,000 [H Cryptocurrency] that are currently worth around $440,000 Australian Dollars. In May 2021 the [H Cryptocurrency] were worth around $2,100,000 Australian Dollars. A copy of the photograph that was taken by the police of the Laptop that is in [MS HAMDY’S] possession was produced to the Court by the [Applicant MR PATERSON] in "Annexure 5,6,7 and 8" in the Second Affidavit filed by the Applicant on the 4th of November 2021 to support the Application in a case. (Any attempt to hide or destroy the complete contents of that Laptop will be tampering with evidence).
(As per original)
The evidence is that the subpoena was served upon the solicitors on the record for the mother and, whilst the subpoena required production of documents by 12 May 2022, it is clear that an objection to production by the Respondent mother was not filed within time. The next step that seemed to have taken place is that the husband filed an Application to enforce the subpoena. That was filed on 27 June 2022. The evidence before the Court now reveals that outside the time limits specified for the filing of an objection, the solicitor on the record for the mother had, on her instructions, sent a letter to the father on 18 July in which she says:
We are instructed by our client that our client does not have the documents and/or items in her possession or control.
It is clear that the father disputes that fact, noting, of course, that at least some of the documents were said to have been in the mother’s possession as long ago as 2015. The matter has come to me by way of an Application for Review filed by the father on 11 August. On an earlier occasion, I gave leave to the father to amend the Application for Review because he had, as an unrepresented litigant, in my view, specified the wrong Order.
The Application for Review, in terms of the Rules of the Court, must be dealt with as a hearing de novo. I am satisfied that when the Registrar had the father’s Application for enforcement of the subpoena before her, it became apparent to the Registrar that there had been a non-compliance with the time limit specified for the filing of an objection. Although the evidence of the solicitor for the mother and the evidence of the father is in dispute on the next point, on balance, I am satisfied that an oral application was made before the registrar on 22 July 2022 and on that basis, the Registrar gave leave for an objection to be filed out of time.
As I understand the unrepresented father’s evidence, he believes that the Registrar inappropriately, of her own initiation, encouraged and/or facilitated an application to extend time. Because this is a hearing de novo, I am in essentially the same position as the Registrar was on 22 July 2022. I regard an application to extend time for the objection to have been made to me and in support of that application, the mother relies upon the affidavit of her solicitor, in which the solicitor says, in effect, that she overlooked the time limit because of work pressures in her office.
The father is, not surprisingly from his position, unsympathetic to that allegation and disputes it. He makes an allegation, in his affidavit filed overnight, that “the Court has to put a stop to all this perjury, false and misleading statements, wasting time and tampering with extremely important evidence.” It is clear that the father believes the mother is withholding from him evidence that is relevant in the substantive proceedings. There is a discretion, pursuant to Rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), to dispense with any part of the Rules. Rule 1.31(1) provides that “[t]he court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time.” There is no doubt that Rule 6.38 is a mandatory provision that required a notice of objection to be filed “before the day stated in the subpoena for production”.
As a result of the Registrar’s earlier decision, the substantive issue between the parties now, that is, whether the items referred to in the subpoena by the father either exist, are in the control of the mother (which the mother says they are not), or whether if they exist and are in the control of the mother, they are relevant to the parenting proceedings (which the father says they are), is listed before a registrar on 16 September 2022. It is trite to acknowledge, of course, that any decision by a Registrar can also be reviewable on the substantive issue of the subpoena. I am satisfied that it is in the interests of justice to grant the mother leave to file an objection out of time. There is an issue in dispute of importance in this case. I make no comment about whether or not, as the father suggests, this is a delaying tactic by the mother, or in fact, she is withholding evidence. That is a matter initially for the Registrar on 16 September 2022.
My exercise of discretion in this regard is shaped by the evidence before the Court but also the importance of the issue being dealt with properly, namely, a dispute to be heard as to whether the matters set out in the subpoena by the father are within the possession, power or control of the mother and/or relevant to the proceedings before the Court. Accordingly, for these reasons, I dismiss the Application for Review filed 11 August 2022.
This is not a case where I would be minded to make any order for costs. I do not know whether the mother has been asking for one, but within the circumstances where the mother failed to file on time, it is not a matter where I will exercise the discretion.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 September 2022
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