Salim & Hakim - [2021] FamCA 245

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
Applicant

AND:
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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salim & Hakim

Details

AGLC: Salim & Hakim [2021] FamCA 245
Case: [2021] FamCA 245
Decision Date: 29 APRIL 2021

CaseChat Overview and Summary

In the matter of *Salim & Hakim*, Foster J of the Family Court of Australia considered objections raised by the applicant wife to two subpoenas issued by the respondent husband. The dispute concerned the wife's objections to subpoenas directed to the National Bank of Australia Ltd and a company identified as B Ltd.

The primary legal issues before the court were whether the Registrar's prior orders dismissing the wife's objections to these subpoenas were correct, and in particular, the proper application of principles relating to the apparent relevance of documents sought by subpoena in family law proceedings. The court was required to determine the extent to which the documents sought by the husband were relevant to the proceedings and whether the objections to their production should be upheld.

Foster J's reasoning involved a review of the principles governing the issuance and objection to subpoenas, focusing on the requirement of apparent relevance. The court found that the subpoena to the National Bank of Australia Ltd was sufficiently relevant to the proceedings, and therefore dismissed the wife's objection to it, granting the husband's legal representative leave to inspect the produced documents but without permission to photocopy them. Conversely, the court upheld the wife's objection to the subpoena directed to B Ltd, finding it lacked apparent relevance, and accordingly struck out that subpoena and ordered the return of any documents produced.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	29 APRIL 2021