Salim & Hakim (No. 3) - [2021] FamCA 520

FAMILY COURT OF AUSTRALIA
Salim & Hakim (No. 3) [2021] FamCA 520

File number(s): PAC 5392 of 2020

Judgment of: FOSTER J

Date of judgment: 16 July 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA OBJECTION – review of Registrar’s orders dismissing objections to subpoena by the wife and third party objector in relation to a subpoena to produce filed by the husband directed to Department of Home Affairs – where discussion of relevant principles – where subpoena objection upheld – where subpoena struck out.

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Salim & Hakim [2021] FamCA 245

Salim & Hakim (No. 2) [2021] FamCA 495

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Number of paragraphs: 18

Date of last submission/s: 8 June 2021

Date of hearing: 18 June 2021

Place: Parramatta

Counsel for the Applicant: Mr Givney

Solicitor for the Applicant: Maclarens Lawyers

Counsel for the First Respondent: Mr Schonell SC

Solicitor for the First Respondent: York Law Family Law specialists

Solicitor for the Second Respondent: There was no appearance by or for the Second Respondent nor her solicitors Zahr Partners

Solicitor for the Objector: There was no appearance by or for the Objector nor his solicitors One Group Legal
ORDERS

PAC 5392 of 2020

BETWEEN:
MS SALIM

Applicant

AND:
MR HAKIM

First Respondent

MS NOOR

Second Respondent

MR SOBHY

Objector

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:
1.Orders 1, 2, 3 and 4 made on 11 June 2021 be set aside.
2.The Subpoena issued by the husband to the Department of Home Affairs be struck out.
3.Any documents produced pursuant to the Subpoena be returned to the Department forthwith.
4.The question of costs of and incidental to the present application be reserved to agreement or final hearing.

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 application for determination is an application to review the order of a registrar dismissing objections to a subpoena issued on 4 May 2021 by the husband directed to the Department of Home Affairs, seeking travel records for the wife and a Mr Sobhy.
The application arises in the context of spirited litigation between the primary applicant wife seeking property adjustment orders and the respondent husband.
An interlocutory judgment and orders were made on 9 July 2021. This judgment assumes familiarity with those Reasons: Salim & Hakim (No. 2) [2021] FamCA 495 and Reasons…

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 (No. 3)

Details

AGLC: Salim & Hakim (No. 3) [2021] FamCA 520
Case: [2021] FamCA 520
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the matter of *Salim & Hakim (No. 3)*, Foster J of the Family Court of Australia considered objections to a subpoena issued by the husband (Mr Hakim) to the Department of Home Affairs. The objections were raised by the wife (Ms Salim) and a third party objector (Mr Sobhy). The primary dispute concerned the validity of the subpoena and whether the Registrar's prior orders dismissing these objections were correct.

The central legal issue before the court was whether the subpoena issued by the husband to the Department of Home Affairs was properly issued and should stand, or whether the objections raised by the wife and the third party objector should be upheld. This required the court to consider the principles governing the issuance and scope of subpoenas in family law proceedings, particularly in relation to third-party records.

Foster J determined that the subpoena should be struck out. The court's reasoning, though not fully detailed in the provided text, indicates an application of principles that led to the conclusion that the objections were valid. The court set aside the Registrar's previous orders and ordered that the subpoena be struck out, with any documents produced to be returned to the Department of Home Affairs. The costs of the application were reserved.

Orders

Orders of the court

PAC 5392 of 2020

BETWEEN:

MS SALIM

Applicant

AND:

MR HAKIM

First Respondent

MS NOOR

Second Respondent

MR SOBHY

Objector

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1. Orders 1, 2, 3 and 4 made on 11 June 2021 be set aside.

2. The Subpoena issued by the husband to the Department of Home Affairs be struck out.

3. Any documents produced pursuant to the Subpoena be returned to the Department forthwith.

4. The question of costs of and incidental to the present application be reserved to agreement or final hearing.

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 5392 of 2020
Judgment of:	FOSTER J
Date of judgment:	16 July 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA OBJECTION – review of Registrar’s orders dismissing objections to subpoena by the wife and third party objector in relation to a subpoena to produce filed by the husband directed to Department of Home Affairs – where discussion of relevant principles – where subpoena objection upheld – where subpoena struck out.
Legislation:	Family Law Act 1975 (Cth) s 79
Cases cited:	Salim & Hakim [2021] FamCA 245 Salim & Hakim (No. 2) [2021] FamCA 495 Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Number of paragraphs:	18
Date of last submission/s:	8 June 2021
Date of hearing:	18 June 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	Maclarens Lawyers
Counsel for the First Respondent:	Mr Schonell SC
Solicitor for the First Respondent:	York Law Family Law specialists
Solicitor for the Second Respondent:	There was no appearance by or for the Second Respondent nor her solicitors Zahr Partners
Solicitor for the Objector:	There was no appearance by or for the Objector nor his solicitors One Group Legal

PAC 5392 of 2020
BETWEEN:	MS SALIM Applicant
AND:	MR HAKIM First Respondent MS NOOR Second Respondent
MR SOBHY Objector

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	16 JULY 2021