Savage & Haines
[2024] FedCFamC1F 656
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Savage & Haines [2024] FedCFamC1F 656
File number: SYC 7724 of 2023 Judgment of: ALDRIDGE J Date of judgment: 26 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objections to subpoenas – Where the mother seeks to redact her address on documents produced under subpoena – Where the father submits the mother’s fears in relation to him knowing her address are unfounded – Where the mother’s address is not currently relevant to an issue in the proceedings – Order for first access made – Subpoena to mobile company not relevant to an issue in the proceedings – Subpoena to the mother’s workplace for documents pertaining to her work performance not relevant to an issue in the proceedings – Subpoenas dismissed. Cases cited: Hatton v Attorney-General (Cth) (2000) FLC 93-038; [2000] FamCA 892
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Division: Division 1 First Instance Number of paragraphs: 20 Date of last submission: 12 September 2024 Date of hearing: Determined in Chambers on the papers Place: Sydney Solicitor for the Applicant: Boyce & Boyce Solicitor for the First Respondent: Barkus Doolan Winning The Second Respondent and Independent Children’s Lawyer: No appearances required ORDERS
SYC 7724 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAVAGE
Applicant
AND: MR HAINES
First Respondent
MS HAINES
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.In relation to any documents produced pursuant to subpoenas issued to B School, the Commonwealth Bank of Australia and New South Wales Fair Trading, the applicant is to have first access to the documents and is at liberty to redact her residential address wherever it appears.
2.The subpoena to C Company filed 12 August 2024 is set aside.
3.Leave is granted to issue a subpoena to C Company in the form of that set aside under Order 2, but omitting paragraphs 2(v) and 2(ix).
4.The subpoena to D Pty Ltd filed 12 August 2024 is set aside.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Savage & Haines has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This matter is listed for final hearing of property and parenting applications on 4 November 2024. As to the latter, one of the key issues is whether the child should live with the mother in the United States of America.
The father has issued a number of subpoenas to which the mother has objected. The father has filed written submissions supporting the issuing of the subpoenas and the matter is being determined in chambers.
Subpoenas to the Commonwealth Bank of Australia, B School and New South Wales Fair Trading
In each case the mother objects to the inspection of the documents by the husband unless she first has the opportunity to redact her present residential address.
It is plain from the terms of each subpoena that it seeks the production of documents the substance of which may be relevant to the issues in the proceedings. It is therefore somewhat disingenuous for the father to submit that a genuine purpose of the subpoena is to identify the present residential address as opposed to it appearing on documents that are relevant for other purposes.
The father asserts that the mother’s contention of feeling unsafe if her address is disclosed is “unfounded”. That is hardly a finding that could be made on the basis of an assertion in submissions at this early stage.
If the issue of the address of the mother becomes a relevant issue in the proceedings it can be addressed then. For the present, the mother will have first access to the documents produced and be entitled to redact her address wherever it appears.
Subpoena to D Pty Ltd
The subpoena seeks production of the following:
2.For the period from 1 January 2023 to the date of this subpoena, the original or a copy of the following documents:
a.A list of all incoming calls and messages received to the telephone service with the number 04[…]; and
b.A list of all outgoing calls and messages made from the telephone service with the number 04[…],
c.Any other phone numbers held in the name of the owner of 04[…] being [Ms Savage], born […] 1981, including a list of all incoming and outgoing calls and messages made from the telephone service(s) owned by [Ms Savage].
including date, time, duration of each call and the location from which each call was made.
In late 2023 a need arose for the mother to leave what had been the family home in Suburb E. In an affidavit of 28 June 2024 the father deposed:
19.…On 11 April 2024, [Ms Savage] stated she was looking for rental accommodation in [Suburb F] asserting she could not afford to remain living in [the Suburb E area]. On 19 April 2024, [Ms Savage] state [sic] she was looking at properties for $550–$650 per week rent in the [Suburb F] area…
In early 2024 the mother and child moved to short-term rental accommodation. In mid-2024, the mother and child moved to live in Suburb G.
The father submitted:
22.In essence the [mother’s] intentions and plans around moving out of the [Suburb E] property and changing the child’s school was largely shrouded in secrecy, and the facts and circumstances are a significant matter of contention between the parties to be ventilated and their respective evidence tested at the Final Hearing.
(Father’s written submissions filed 12 September 2024)
A subpoena is likely to be set aside if the documents sought lack apparent relevance to the issues in the proceedings (Hatton v Attorney-General (Cth) (2000) FLC 93-038). Thus it is not necessary to demonstrate that the documents sought will materially assist – it is sufficient if it can be seen that the subpoena can be seen, plausibly, to relate to an issue (Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Secretary of the Department of Planning, Industry and Environment”)).
The suggestion of a possible move to Suburb F in early or mid-2024 seems at present to be a trivial issue, at best. It is difficult, if not impossible, to see how the records from 1 January 2023 to date are relevant to that issue, which seems limited to a period of two months or so.
I am not persuaded that the documents sought have apparent relevance to the issues in the parenting proceedings, even accepting the discussion of telephone records by Bell P in Secretary of the Department of Planning, Industry and Environment.
This subpoena will be set aside.
Subpoena to C Company
C Company is the mother’s employer. She objects to the production of the following:
2.Your records respecting the employment of [Ms Savage] born […] 1981 ("[Ms Savage]"), as follows:
…
v.All performance reviews received by [Ms Savage] for the period, including all individual feedback reviews as well as all annual reviews, performance appraisals, annual salary determinations and annual promotion decisions and notifications;
…
viii.All records, including notes, diary entries, memoranda, reports, correspondence, letters, emails, minutes of meetings, reports, and any other records in respect of any domestic violence leave requested, approved, and taken by [Ms Savage] for the period;
ix.All personnel records, reports, notes, correspondence, minutes, diary entries, memoranda, internal emails and communications, transcripts and other records respecting the conduct of [Ms Savage], for the period, including but not limited to:
i.Allegations of and / or investigations into suspected, possible or actual misconduct;
ii.Breaches of employment terms and conditions, including policies and procedures;
iii. Performance management and / or coaching;
iv. Complaints and / or disciplinary action;
v. Formal and informal warnings;
vi. Grounds for suspension and / or termination;
vii.Any other records of alleged bullying, harassment, substance abuse, anti-social behaviour or dishonesty by or involving [Ms Savage]; and
viii.Any criminal, police or medical records concerning [Ms Savage].
Items (v) and (ix) go to the performance of the wife’s work for her employer. I do not see how that performance, good or bad, is relevant to any issue in the proceedings. These paragraphs will be set aside.
If the wife has sought or gone on domestic violence leave, as she has apparently asserted, it is relevant to the issue of violence. That objection is overruled.
Disposition
In relation to any documents produced to the Court pursuant to subpoenas issued to B School, the Commonwealth Bank of Australia and New South Wales Fair Trading, the mother is to have first access to the documents and is at liberty to redact her residential address wherever it appears.
The subpoena to C Company is set aside. However, leave is granted to issue a subpoena to C Company in the form of that set aside but omitting paragraphs 2(v) and 2(ix).
The subpoena to D Pty Ltd is set aside.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 26 September 2024
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