R and R
[2007] FMCAfam 333
•8 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2007] FMCAfam 333 |
| FAMILY LAW – Subpoena – will – prospective inheritance – relevance – oppression. |
| White & Tulloch v White [1995] FLC 92-640 |
| Applicant: | B K R |
| Respondent: | P A R |
| File number: | SYM8486 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 7 March 2007 |
| Date of last submission: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2007 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Doumanis |
| Solicitors for the Applicant: | Diamond Conway Lawyers |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Warren McKeon Dickson |
ORDERS
The Application to strike out the subpoena to M E R is dismissed.
The matter be adjourned to 19 September 2007 at 10am for a two day final hearing.
Each party file and serve any affidavits on which they intend to rely by no later than 4.00p.m on 20 June 2007. No further affidavits to be filed after that date without leave of this Court.
Pursuant to Rule 15.09 the parties appoint a single joint expert to value the painting and the two vases which are currently within the former matrimonial home. The Applicant is to pay the share costs of valuation of this property.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing;
(b)The Orders sought at hearing;
(c)One list between the parties setting out the values of assets and liabilities to be relied on at hearing, each to be marked “agreed” or “in dispute”.
The parties have liberty to apply on seven days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM8486 of 2006
| B K R |
Applicant
And
| P A R |
Respondent
REASONS FOR JUDGMENT
Ex tempore
On 20 December 2006 the wife who is the respondent in these proceedings caused to be issued to M E R a subpoena to produce documents. By way of summary the schedule to the subpoena required production of a copy of her current Will, drafts of previous Wills and categories of financial documents going back for a period not greater than three years.
The applicant husband in the proceedings who is the son of M E R, objects to the subpoena primarily on the grounds of relevance but also - and putting aside matters of form and just concentrating on substance - because production of the documents under the subpoena would be oppressive to the husband's mother.
The test in these cases is set out in paragraph 31 of the Full Court's decision in White & White v Tulloch [1995] FLC 92-640 which states as follows:
It is necessary then to turn to the major argument supporting his
Honour's orders, namely that the evidence was potentially encompassed within s.75(2)(o). In examining that issue it is necessary to bear in mind matters previously referred to, namely that the point at issue before Cohen J was whether the documents were sufficiently likely to "add in the end to the relevant evidence in the case": see Waind v Hill and National Employers' Mutual General Association Ltd (1978) NSWLR 372; Spencer Motors Ltd v LNC Industries Ltd (1982) 2 NSWLR 921; In the Marriage of Sharpe and Dalton (1990) FLC 92-167; Eighth Dictum Pty Ltd v The Commissioner of Taxation (Supreme Court of Victoria, unreported 1991) and Epstein (1993) FLC 92-384. And the Court goes on to make some observations about whether a prospective inheritance or the expectancy of an inheritance will or will not be relevant in s.79 claims.The arguments before me yesterday bore a striking similarity to the arguments that were run before the Full Court in White & White v Tulloch. It was interesting that Mr Doumanis for the husband was basically raising the arguments contained at paragraph 43 in the Full Court decision. Mr Millar, counsel for the wife, was basically raising the arguments contained at paragraph 44 of the Full Court's judgment, and I note that at paragraph 45 the Court made some comments including these ones that are particularly pertinent in this case, and that is that:
We do not consider there is any absolute rule. 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.
On the facts of this case, however, the prospective inheritance is clearly relevant. The wife purports to make a direct claim to the prospective inheritance in Order 3 of her response and indeed Order 1 can only be understood by reference to the prospective inheritance of the husband.
The wife’s evidence in her affidavit is clearly marshalled under the banner of a claim to the prospective inheritance based on s.75(2)(o) of the Family Law Act. Mrs R Snr, according to the evidence is 94 and is in need of constant care, and the information that is presently available to the parties indicates that the real estate that will comprise part of her estate will be worth at least $3 million. The size of the pool available to the husband and wife in this case looks like it is around about $1.2 million.
I find that the prospective inheritance is clearly a relevant matter in the course of this case and to the extent that the subpoena stands or falls on the issue of relevance I want to make it very clear to the parties, before they get carried away with all of this prospective inheritance argument that, ultimately at the trial the weight to be given to this evidence may not be substantial for the reasons that the Court sets out at length and in the clearest possible terms in its decision in White & White v Tulloch.
I think the real difficulty in this case is in fact paragraphs two to five of the subpoena. These are documents that in effect go to the quantification of the prospective inheritance. Mr Doumanis argued strongly that, on the basis of the Full Court's decision in White & White v Tulloch, those paragraphs of the subpoena go too far. Indeed, the Full Court in that case was not prepared to allow the subpoena to the extent that it went too far.
The dilemma I have here is this: the Full Court says that it is a matter of fact and degree. The Full Court's decision says that it is legitimate to consider the issues of privacy and oppression and inconvenience. However, the Full Court also says that the parameters of the dispute need to be contained. And yet, having crossed the metaphorical Rubicon, having said that the material in paragraph 1 of the subpoena is capable of being relevant (that being the test) how can I now not allow at least for the purposes of the subpoena, material that goes to the question of how the prospective inheritance is to be quantified.
I remind myself of the test and that this is in effect a threshold issue. That is, is this material sufficiently likely to add in the end to the relevant evidence in this case? Having regard to the provisions of s.75(2)(o) how can I say no to the threshold issue? I allow the subpoena and once again I warn the parties in the clearest possible terms that upholding the subpoena does not mean that the evidence is sufficiently relevant or sufficiently weighty for it to be admissible at the hearing.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 23 May 2007
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