Salim & Hakim
[2021] FamCA 245
•29 APRIL 2021
FAMILY COURT OF AUSTRALIA
Salim & Hakim [2021] FamCA 245
File number(s): PAC 5392 of 2020 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA OBJECTION – Review of Registrar’s orders dismissing objections to subpoena by the Applicant in relation to two subpoena filed by the Respondent – Where discussion of relevant principles – Where determination of apparent relevance. Legislation: Family Law Act 1975 (Cth) ss 79, 121 Cases cited: Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 Number of paragraphs: 40 Date of hearing: 12 April 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Solicitor for the Respondent: Mr Wahhab of York Law Family Law Specialists ORDERS
PAC 5392 of 2020 BETWEEN: MS SALIM
ApplicantAND: MR HAKIM
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.The wife’s Notice of Objection to Subpoena addressed to the Proper Officer, National Bank of Australia Ltd be dismissed.
2.The husband’s legal representative have leave to inspect such documents as have been produced by the National Bank of Australia Ltd.
3.There be no photocopy access permitted to documents that have been produced by the National Bank of Australia Ltd.
4.The wife’s Notice of Objection to Subpoena addressed to the Proper Officer, B Ltd be upheld.
5.The Subpoena to the Proper Officer, B Ltd be struck out.
6.Any documents produced by the Proper Officer, B Ltd be returned to the producing party forthwith.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salim & Hakim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The primary proceedings are proceedings for property adjustment under s 79 of the Family Law Act 1975 (“the Act”) commenced by the applicant wife by Initiating Application filed 12 October 2020.
In that application the wife seeks payment to her by the husband of $1 million and in default sale of the real estate property at C Street, Suburb D.
On 8 January 2021 the respondent husband filed a Response to the wife’s Initiating Application. In that Response he, in summary, sought an order that he pay to the wife the sum of $100,000.
The parties were married in Country E in 2004 and separated finally in February 2020, following what the wife asserts to have been a separation under one roof since 2013.
The wife did not work during the marriage.
The wife is presently aged 41 and the husband nearly 45.
There are three children of the parties’ relationship presently aged 16, 13 and seven. Those children reside with the wife.
The primary proceedings were listed before a registrar for a case assessment conference on 11 January 2021. On that day the registrar made certain case management orders and directions as follows:
Notations
A. These proceedings are in relation to financial issues
B.The parties were married in F City in 2004. There is a factual dispute as to the date of separation. The wife says the parties separated under the one roof in 2013 and that she left the home in February 2020. The husband concedes a short separation in 2013 but says that the matrimonial relationship resumed and continued until the final separation in February 2020.
C.The Wife has been in receipt of Centrelink benefits since the separation she alleges occurred in 2013. The circumstances of this are the subject of hot contest between the parties.
D.There are three children of the marriage under 18 years who presently live with the Wife, X born in 2004 aged 16 years, Y born in 2008 aged 12 years and Z born in 2013 aged 7 years. No parenting orders are sought. The Wife is currently living at an address shared with her parents.
E.The Husband continues to reside in the former matrimonial home at C Street Suburb D.
F.The Wife has sought interim orders in her Initiating Application filed 12 October 2020. Short Service was refused at the time of filing. Counsel for the Wife seeks that Orders 1 and 2 of the interim application be listed urgently in the next available duty list. The other interim orders are not pressed urgently.
G.A significant issue will be to determine the net pool of assets available for distribution. Further disclosure needs to occur and it is likely that assets will require to be valued and the nature and extent of liabilities confirmed. The Pool of property is complex and third parties may in due course require to be joined.
H.There are a number of corporate entities set out by the Husband in his Affidavit filed 8 January 2021 which require to be the subject of further financial disclosure and in which third parties have been identified. This appears to include the following (subject to disclosure and confirmation):
(a)Hakim P/L as trustee for the Hakim Family Trust. The husband is sole Director. The shareholders appear to be the Husband as to 298,731 shares and his brother Mr G as to 3,018 shares;
(b)The Hakim Family Trust. The Trust owns various assets including the former matrimonial home and the real estate known as H Street, Suburb D. It also owns the business of J P/L. The Husband says the Trust was established in 2003 but that the original Trust Deed was lost or misplaced. A New Deed is alleged to have been prepared in 2015.
(c)J P/L (“USA”) with the Husband as sole director and shareholder. This company operates a supply of building materials with the business address stated as H Street Suburb D NSW;
(d)K P/L with the Husband as sole director and shareholder. This entity is alleged to be dormant and to have never traded;
(e)W P/L. The company is alleged to be dormant and the Shareholders are the Husband as to 45/100 shares, the Wife’s brother Mr L as to 55/100 shares and the Wife’s nephew Mr M as to 5/100 shares;
(f)N Pty Ltd. The husband is one of the directors and holds 75,000 of 300,000 shares. The Husband’s cousin Mr P holds 150,000 of 300,000 shares and Mr Q holds 150,000 of 300,000 shares. This company is in relation to a development site at Suburb R.
I.The Husband also refers to a company known as T Pty Ltd. The directors of this company were the Husband and the Wife’s brother Mr L. The Husband says that the shares were all owned by a company known as J P/L which he mentions in connection with a mineral producing project in S Town. The Husband says that the company never traded and that he resigned as a director in January 2021. The Husband avers that he sold out his interest in J P/L.
J.In 2019 the Husband says he sold out of the mineral producing project in S Town for the sum of $1 million. The Husband avers the whole of these funds were applied to company and business liabilities.
K.The current personal and business liabilities of the Husband and the entities are in dispute. The Husband sets out various personal liabilities in his Financial Statement. He also avers that the Family Trust and the USA business have very significant liabilities.
L.A current issues is the funding of 3 of the vehicles owned by the Business USA, namely a vehicle used by the Wife, a vehicle used by the Husband and another car driven by the General Manager of the business. These vehicles appear to be subject to leases to Westpac Banking Corporation. The Husband says that the business requires to sell these vehicles.
M.The parties will be directed to file a collaboratively prepared balance sheet that will include for each entity or business or trust a subset of assets and liabilities alleged and which will clarify the points of difference between the parties.
N.The matter will otherwise be adjourned to the Judicial Duty List in February 2021 for the Hearing of the Wife’s interim application (Orders 1 & 2 only) as pressed today and to a directions hearing before the docket Registrar in March after further disclosure has been completed. It is anticipated that in March 2021 the legal representatives will have had time to consider the issues that are in dispute including any valuations that might be required, the need to join any other parties, and any outstanding disclosure.
Listing and Filing
1.The interim application of the Wife (Orders 1 & 2 only) as set out in her Initiating Application filed 12 October 2020 is listed to the Registrar’s Call-Over for the Judicial Duty List before Registrar Boldiston at 10.30am on 11 February 2021 for transfer to the Duty list before Her Honour Justice Hannam on 15 February 2021. The appearance will be by MS Teams with dial in details to be provided beforehand.
2.The matter is listed before Registrar D’Adonna (the docket Registrar) at 3.30pm on 1 March 2021for further directions and to consider further preparation required for a conciliation conference or Mediation including but not limited to Expert Valuations required and the need to join or notify any third parties or creditors. The appearance will be by MS Teams with dial in details to be provided beforehand.
3.No later than 9 February 2021 the legal representatives are to exchange and file a draft collaboratively prepared balance sheet noting any continuing points of difference.
Disclosure required within 14 days
4. Within 14 days each party is to exchange with each other party the following:
(a)All personal, corporate, partnership and trust bank or other financial institution account statements for the last 2 years;
(b)All bank or other financial institutions account statements to verify any liabilities or borrowings which are alleged to be outstanding to any person(s) or financial institution;
(c)Any documents on which a party intends to rely to verify any personal loans or other borrowings in the last 2 years for which they are liable;
(d)The Husband to provide copies of all documents in relation to the sale of his interest in the mineral producing project for $1 million referred to in Paragraph 51 of his Affidavit filed on 8 January 2021 including but not limited to all documents that evidence where such monies were deposited and which particularise how they were then applied or expended;
(e)The Wife to provide copies of any communications with Centrelink for the last 2 years;
(f)The Husband to provide copies of any BAS Statements for the period 1 July 2020 to date;
(g)The Husband to provide a copy of the Trust Deed for the Hakim Family Trust;
(h)The Husband to provide a copy of all leasing documents held in relation to the motor vehicles used by the Wife, by himself and by the General Manager of the USA business as referred to in paragraph 58 of his Affidavit filed on 8 January 2021;
(i)Any documents on which they propose to rely for interim proceedings to verify their current financial circumstances.
Disclosure required within 28 days
5.Within 28 days each party exchange with each other party (if not already exchanged) all documents mentioned in Rule 12.02 of the Family Law Rules and the following:
(a)a copy of the party’s taxation returns and assessments from 1 July 2013 to date;
(b)if relevant, documents about any superannuation interest of the party, including:
·if not already filed, the completed superannuation information form for the superannuation interest; and
·if the party is a member of a self-managed superannuation fund— a copy of the trust deed and the 3 most recent financial statements for the fund;
(c)for a corporation in relation to which a party has a duty of disclosure under rule 13.04 for the period 1 July 2013 to date or from the first year that financial statements were lodged if incorporated after 1 July 2013:
·a copy of the financial statements including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
·a copy of the corporation’ annual return that lists the directors and shareholders; and
·if relevant, a copy of the corporation’s constitution;
(d)for a trust in relation to which a party has a duty of disclosure under rule 13.04 for the period 1 July 2013 to date:
·a copy of the financial statements including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
·a copy of the trust deed;
(e)for a partnership in relation to which a party has a duty of disclosure under rule 13.04 for the period 1 July 2013 to date or from the first year that financial statements were lodged if the partnership was entered after 1 July 2013:
·a copy of the financial statements including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
·a copy of the partnership agreement;
(f)for a person or entity mentioned above — any business activity statements lodged in the period 1 July 2013 to date;
(g)copies of all relevant statements from any bank, building society or other financial institution.
(h)Any documents to verify any loans or borrowings alleged to be outstanding and on which a party seeks to rely in relation to their financial circumstances;
As can be seen from the registrar’s directions and orders, the proceedings loom as reasonably complex.
In her Initiating Application the applicant wife sought interim orders seeking urgent lump sum spousal maintenance in the sum of $20,000, periodic interim spouse maintenance of $1,500 per week and an interim property payment of $200,000.
The interim application was listed in the judicial duty call over list on 11 February 2021. On that day the matter was not ready for transfer to the judicial duty list and the interim application was adjourned for further directions.
In the context of the interim financial application by the wife, the husband issued two subpoenas for production of documents.
The first subpoena was directed to the Proper Officer, B Ltd and sought production of originals and/or copies of all outgoing calls and SMS in relation to mobile number … for the period 1 January 2017 to the present date with such records identifying:
(a)the telephone numbers for all outgoing calls;
(b)the telephone numbers for all outgoing SMS messages;
(c)the date and time of each call and SMS message;
(d)the cell tower location in relation to each outgoing call and SMS message.
The second subpoena was directed to the Proper Officer National Australia Bank Ltd and sought production of originals and/or copies of all statements of account in relation to any cheque, savings, trading, loan, investment, deposit, credit card or other style of account whatsoever kind and whatsoever nature held in the name of the wife, whether held solely or jointly with any person or persons or as trustee or joint trustee for any person or persons or in the name of an entity associated with the wife or where the wife has authority to operate on any account or is a signatory of the account for the period from 1 January 2013 to the present date.
It appears that the subpoena has been complied with and that documents produced remain in the Registry awaiting determination of the present application.
On 17 February 2021 the wife filed a Notice of Objection to Subpoena in relation to the subpoena to the Proper Officer, National Australia Bank Ltd. The basis for the wife’s objection was that the subject bank statements contained transactions which are deposits made by a third party during the course of 2019/2020. The third party not being a party to the proceedings. The wife objected to the husband becoming aware as to the identity of the third party for fear that person might be harassed by the husband or her brother. The wife sought that she be permitted first access to the documents produced to redact and/or remove the name and identification of the third party
On 3 March 2021 the wife filed a Notice of Objection to Subpoena in relation to the subpoena directed to B Ltd. The basis for the wife’s objection was that the husband seeks the production of documents that have no relevance to the issues to be determined in the proceedings and that the wife wishes to protect her privacy and confidentiality and the privacy and confidentiality of others to whom she was communicating with. The wife sought that she be permitted first access to documents produced to redact and/or remove information which is private and confidential.
The wife’s Notices of Objection were determined by the registrar on 31 March 2021 following written submissions by both parties. The registrar was satisfied that there was a sufficient nexus between the material being sought and some evidence filed in the proceedings which could be relevant to the property proceedings currently before the Court including the wife’s application for spouse maintenance. Accordingly, the Notices of Objection were dismissed.
The Present Application
On 6 April 2021 the wife filed an Application in a Case seeking a review of the determination made by the registrar on 31 March 2021. The wife’s application was supported by her affidavit sworn and filed 8 March 2021.
The husband, for his part, filed an affidavit on 9 April 2021 in response to the wife’s Application in a Case and sought that her application be dismissed.
The application for review was heard on 12 April 2021 and both parties filed written submissions in support of their respective position.
Apparent relevance: Subpoena
In Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 McClelland DCJ set out a useful analysis of the well settled relevant legal principles (footnotes omitted):
26.The power of the Court to issue a subpoena is set out in Part 15.3 of the Family Law Rules 2004 (Cth) (“the Rules”). Equally, the Court has power to set aside a subpoena so issued: Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93 038 (“Hatton”).
27.The relevant stages of subpoenaing a third party to produce documents to the Court were described in Hatton at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra)….
28.Rule 15.26 relevantly enables a person or entity named in the subpoena to apply for an order that the subpoena be set aside in whole or in part (r 15.26(1)(a)).
29.Further, r 15.26(1)(c) enables a person or entity to which a subpoena is addressed to seek “to be paid for any loss or expense relating to … the production of a document in compliance with the subpoena”.
30.A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”. (emphasis added)
31.In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
32.While it is the case that the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.
33.Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.
34.A subpoena may also be at risk of being set aside if its terms are so wide that “…it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation”.
35.In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all.
36.In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J undertook a useful analysis of the relevant authorities and noted at 85,857:
There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and… the Act. The latter offends both.
37.In that same context, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 wherein his Honour said at 428:
It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.
38.In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an “apparent relevance” to the issues in the proceedings. It must be more than “an outside chance” that something useful might turn up in the documents.
39.To avoid being set aside as merely “fishing”, or as being oppressive, a subpoena must specify with reasonable particularity the documents which are required to be produced.
The wife’s contention
Subsequent to separation the wife asserts that she resided at her parents’ rented home with the three children until such time as she was able to obtain a four bedroom townhouse where she, the children and her parents could reside. The wife says that the townhouse is soon to be sold and she will be required to find alternative accommodation for herself, the children and her parents.
The wife says that she contributes $260 per week towards the rent that is $760 per week. The wife says as at early March 2021 she was receiving $900 per week as a government benefit being a jobseeker payment. She has recently completed a TAFE course.
The wife asserts that the husband uses financial control to intimidate herself and the children. The husband, subsequent to separation, ceased paying the children’s private school fees and removed the wife and children from private health insurance cover.
The wife asserts that from time to time during the course of 2020 she received financial assistance from a person whom the identity of which she does not wish to disclose. She is fearful that the husband or her own brother will approach and harass that person.
The wife further asserts that by reason of her religious beliefs she is of the view that only the husband in a marriage can obtain a divorce in accordance with the Muslim religion. As such, until divorced by the husband she will be regarded as remaining his wife and prevented from forming a relationship with a male person or remarrying, notwithstanding her legal status as a consequence of a divorce obtained under Australian law. The wife asserts that the husband has repeatedly said as to a divorce “I’m not going to give you what you want, I know you are affected by the black magic”. Notwithstanding, the wife gives evidence that some earlier approaches have been made to a Muslim religious authority, however, more recently the husband has threatened not to divorce her unless she withdraws the present proceedings.
The wife says that the husband is endeavouring to expose the name of the person who has advanced to her some monies so that that person may be vilified within the Muslim community. As such the husband is placing pressure on her to withdraw the present proceedings.
As to the subject bank account, the wife says that she has one bank account with the National Australia Bank and that all monies received by her since February 2020 have been deposited to that account. Some of the statements disclose the name of the person who has provided financial assistance to the wife. The wife has provided to the husband’s solicitors bank statements from 5 January 2019 to 2 February 2020 but has redacted the name of the person who advanced some funds.
Otherwise, it appears to be common ground between the parties that the wife has not worked for many years and remains out of the workforce as primary carer for the parties’ three children in circumstances where she receives little, if any, financial support from the husband.
The husband’s contention
The husband relies upon his affidavit filed and sworn 9 April 2021.
The husband asserts that the wife is in a relationship with a Mr V. His assertion appears to be based upon allegations made by him unsupported by any objective evidence.
The husband asserts that deposits to the wife’s account by the third party in the period from March to December 2020 totalled approximately $68,000 and were deposited by way of financial support for the wife. He otherwise, without evidence, asserts that the wife and Mr V are in a de facto relationship, that they are not in a relationship of lender/borrower but in a close relationship.
The husband concedes that bank statements redacted as asserted by the wife have been produced to his solicitors.
As to the subpoena to B Limited the husband asserts that phone records are necessary to establish his contention as to the extent of the de facto relationship between the wife and Mr V. Such is not the case, such records will only reveal, if they do, various phone calls and SMS communications to and from the wife but not the contents thereof.
Discussion
The husband asserts significant sums of money deposited to the wife’s National Australia Bank account over a reasonably short period of time. It is incumbent upon the wife to explain such transactions particularly in the context of her assertions that the funds received were by way of loan and not by way of financial support with a person with whom she has a relationship.
Clearly, the unredacted bank documents have apparent relevance to the issues for determination, particularly in relation to the wife’s interim relief presently outstanding. Leave to inspect, of course, does not predetermine whether such documents would be admitted into evidence as relevant in due course but simply facilitates the documents being inspected by the other party. The wife’s objection will be dismissed.
As a consequence of the wife’s concern as to the husband’s misuse of the documents, there will be no order as to photocopy access to such documents and it is the Court’s expectation that the husband’s solicitors will remind the husband of the restrictions imposed by s 121 of the Act.
As to the documents produced by B Limited there is little, if any, apparent relevance if the purpose of the subpoena is for the forensic purpose asserted by the husband. Accordingly, the wife’s objection to the subpoena to B Limited will be upheld and the subpoena dismissed with an order that documents be returned.
Orders will be made accordingly.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 29 April 2021
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