Scott and Nhan

[2018] FamCA 751

FAMILY COURT OF AUSTRALIA

SCOTT & NHAN [2018] FamCA 751

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s Decision – Objection to Subpoena

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

White and Tulloch v White (1995) FLC 92-640

APPLICANT: Mr Scott

RESPONDENT: Ms Nhan

FILE NUMBER: PAC 1506 of 2017

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Low Doherty & Stratford

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: AMG Law Firm

Orders

1. Orders 1 and 2 made by Registrar Tran on 1 August 2018 are set aside.

2. The objections made to subpoenas dated 15 May 2018 issued to B Bank, National Australia Bank, C Bank, D Bank and Commonwealth Bank of Australia are dismissed.  The parties have leave to inspect the documents produced in answer to those subpoena.

3. The objection made to subpoena dated 15 May 2018 to Ms Nhan is dismissed.  The parties have leave to inspect documents upon production.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Nhan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1506 of 2017

Mr Scott

Applicant

And

Ms Nhan

Respondent

REASONS FOR JUDGMENT

introduction

1. By his Application in a Case filed 7 August 2018 the Applicant seeks to review certain orders made by a Registrar on 1 August 2018.  Although the Application on its face relates to a review of all of the orders made by the Registrar on that date it became clear in the course of the proceedings that the Applicant only seeks to review the orders of the Registrar refusing access to documents produced under subpoena by a number of banks and setting aside of a subpoena issued to the Respondent. 

2. The Applicant seeks that the orders of the Registrar be discharged and that orders be made granting access to the documents produced on subpoena including the subpoena issued to the Respondent.

3. The first Respondent takes the position that the Registrar’s orders on 1 August 2018 were the appropriate orders in the circumstances of this dispute. 

The Application

1. Although the affidavit of the solicitor engaged by the Applicant does not set out any of the history or context of this Application it became apparent in the course of the proceedings that the following matters are not in dispute.

2. The Applicant who is also the Applicant in the substantive proceedings commenced those proceedings in April 2017 seeking orders for adjustment of property pursuant to section 90SM of the Family Law Act 1975 on the basis that he and the Respondent were in a de facto relationship from 2003 until May 2015. 

3. Three other parties have been joined as the Second, Third and Fourth Respondents respectively as the Applicant contends that these Respondents hold a number of valuable properties on trust for the first Respondent.  Each of the second, third and fourth Respondents are related to the Respondent. 

4. By her Response filed in September 2017 the Respondent denies that there was ever a de facto relationship between herself and the Applicant.

5. The threshold determination as to the existence of a de facto relationship between the Applicant and Respondent has been listed for a hearing to commence on 24 September 2018 before another Judge at this Registry.

6. Various subpoena were issued in the proceedings to which the Respondent filed Notices of Objection.  The Applicant also filed an Application in a Case in relation to production of various Income Tax returns and Notices of Assessment in relation to the first Respondent. 

7. The objections to subpoena and Application in a Case were listed before a Registrar on 1 August 2018. 

8. The orders were made by the Registrar on that date in the following terms:

   1.      Access is not granted to the documents produced under Subpoena by NAB, [B Bank], [C Bank], [D Bank].  I note that the Applicant concedes that access to these documents may be granted in the event that the jurisdictional issue is found in his favour.

   2.      I strike out the Subpoena issue to [Ms Nhan]. I note that in the event that the Applicant is successful in relation to the jurisdictional issue, the Respondent [Ms Nhan] will be required to fully disclose her financials.

   3.      I grant access to the parties to the documents produced under Subpoena by Revenue NSW.

   4.      Within 14 days, the Respondent [Ms Nhan] provide to Applicant’s solicitor Low Doherty & Stratford a copy of her Tax Assessments for the period of 30 June 2003 to 30 May 2015 and leave for her to redact all financial information other than those associated with the Applicant including any reference to the Applicant being a spouse, dependent or associated person.

   5.      The Application in A case filed on 18 July 2018 is otherwise dismissed.

   6.      Registry to notify the parties of these orders.

9. Order 4 of the orders made by the Registrar on 1 August 2018 dealt with the Application in a Case in relation to the provision of tax documents. 

10. Upon clarification in the course of this hearing the orders sought to be reviewed are orders 1 and 2 of the Registrar orders of 1 August 2018.  Further, the Registrar on that date did not deal with a further subpoena to the Commonwealth Bank which had also been objected to by the Respondent and the Applicant is also seeking that I determine that Notice of Objection in this Application.

11. The Second to Fourth Respondents are not parties to this Application as it relates to orders made with respect to subpoenas in the context of the threshold application concerning the existence of the asserted de facto relationship.

Background

1. The Applicant is a retired real estate agent aged 57 and the Respondent is a 60 year old self-funded retiree.  The Applicant deposes that he and the Respondent began living together as husband and wife in mid-2003.  There are no children of the relationship though the Respondent has an adult son who is the second Respondent in the substantive proceedings.

2. The Applicant contends that he first met the Respondent in 2002 and that they lived together from mid-2003.  He contends that from the commencement of the relationship there was some intermingling of finances as it is his case that he moved into a property owned by her and leased a property that he owned.

3. So far as financial matters are concerned the Applicant contends that from when he and the Respondent first lived together there was financial interdependence between the parties, which involved treating their respect finances as a single unit for some purposes.

4. The Applicant contends that in 2008 the first Respondent sent him a spreadsheet relating to that financial year and subsequently provided to him spreadsheets for each financial year up until June 2015.  He says that the spreadsheets identify payments made by him from his bank account into the Respondents account with the Commonwealth Bank of Australia and later into an account with the National Australia Bank. 

5. The Applicant also disputes the accuracy of the spreadsheets prepared by the Respondent but does not have access to the source documents used to prepare those schedules

6. The Applicant contends that throughout their relationship the first Respondent was responsible for making all day to day payments for a range of outgoings and had significant ability in relation to financial matters which he relied upon in various property purchases over the years of the relationship.

7. The Applicant contends that he and the first Respondent purchased a number of properties but they were all registered in the name of the Respondents.  He deposes to being the author of a number of emails and other documents concerning financial matters that involve he and the Respondent.  He deposes that relevant institutions include B Bank, NAB, CBA and C Bank.

The Application

Subpoena to banks

1. Pursuant to Rule 18.02 Family Law Rules 2004 the hearing of an application for review of an order of a Registrar proceeds as an original hearing.

2. The Respondent objected to the Applicant inspecting documents produced by D Bank, B Bank, C Bank, the Commonwealth Bank of Australia and National Australia Bank on the ground of relevance.

3. There is no dispute that a court must be satisfied that the documents sought pursuant to the subpoena have apparent relevance to the issue in dispute between the parties and that it is for the issuing party, that is the Applicant to discharge the onus of proving the relevance of the documents in question.

4. The test so far of relevance is well described in White and Tulloch v White (1995) FLC 92-640 by the Full Court as whether the documents sought to be obtained have a “sufficient apparent connection to justify their production or inspection”.

5. The Respondent’s objection seems to be based on the premise that the documents sought to be inspected by the Applicant are only relevant to the determination of the property dispute between he and the first Respondent after the threshold issue as to the issue of the de facto relationship is determined.

6. In relation to the assertion that the documents sought to be inspected have no relevance to the question in dispute, that is the existence of the de facto relationship the Respondent appears to attach weight upon a contention there is no obligation for the first Respondent to make “full and frank disclosure” unless and until the preliminary issue is resolved in the Applicant’s favour. 

7. It is also contended on behalf of the Respondent that there is very limited evidence on the Applicant’s case about the intermingling of finances which it is contended should be capable of proof through documents under the Applicant’s control.

8. However, the issue of intermingling is not the only relevant matter in the dispute which will traverse the issues of financial dependence or interdependence, arrangements for financial support between the parties, the ownership, use and acquisition of their property and reputation and public aspects of the relationship. 

9. The Applicant gives evidence that goes to issues such as financial, interdependence and financial support between the parties including the leasing of premises in joint names, joint dealings in real estate purchases, development and sale and involvement in a business.

10. The Respondent does not dispute much of the Applicant’s evidence but contends that it equally supports her contention that the applicant was essentially a boarder or flatmate.

11. Considering the broad nature of the matters which will be considered in the determination of whether a de facto relationship existed between the parties (which is not as simple as relating only to the intermingling of finances) there does appear to me to be sufficient apparent connection between these matters and the documents produced by the various banks on subpoena. 

12. On this basis I propose to set aside Order 1 made by Registrar Tran on 1 August 2018.  Further, in relation to the subpoena directed to the Commonwealth Bank which was objected on the same ground to but not considered by the Registrar on that date I grant leave to the parties to inspect the documents produced.

Subpoena to Respondent

1. The subpoena to the Respondent had also been objected to by the Respondent on the ground of relevance and that it amounted to a “fishing expedition”.  This subpoena was struck out in Order 2 made by the Registrar on 1 August 2018.

2. This subpoena sought a wide range of documents, some of which would be expected to be produced by other persons to whom other subpoenas had been issued such as banks and Revenue New South Wales.  The subpoena sought documents including tax returns, banking records, documents related to insurance and superannuation policies, copies of contracts relating to the purchase of land or businesses and applications for finance related to such purchases, leases, documents relating to shares, documents in relation to companies or businesses in which the Respondent had an interest, documents related to travel and medical records.

3. So far as the objection on the ground of relevance is concerned the Respondent again relied upon the contention that documents of this type do not relate to the threshold issue of the Applicant’s claim concerning the existence of a de facto relationship and that the Applicant as the party who bears the onus of establishing this relationship must do so by reference to “his own financial history and circumstances before making enquiries regarding the first Respondent’s financial history and circumstances”.

4. As I understand it, it appeared to be contended on behalf of the Respondent that as the Applicant bore the onus of proving the existence of the de facto relationship he was required to do so on the basis of documents within his own control.  It was contended that the Respondent should not be required to assist the Applicant in that regard.  The Respondent went so far as to contend that it is an abuse of process to issue subpoena to the Respondent in these circumstances where she is not under an obligation to provide financial disclosure as the relationship has not been proven.

5. In her trial affidavit the Respondent annexes various schedules, in particular annexures F, I and J which she says contain her records of the Applicant’s savings which it appears she was able to compile from bank records which she now objects to being required to produce. 

6. The second objection in relation to this subpoena is that the issuing of such a subpoena is a “fishing expedition”.  This expression is used to contrast the proper purpose for which a subpoena may be issued that is where the issuing party has a legitimate forensic purpose. 

7. The subpoena objected to in my view does disclose a legitimate forensic purpose in respect of many of the categories of documents sought.  For example the Applicant contends that the parties jointly leased properties together, approached the Respondent’s property dealings as a joint enterprise, engaged in a business together, and travelled overseas and presented socially as a couple.  All of the documents sought relate to the time period in which the Applicant asserts the parties lived together as a couple and appear to have a direct and clear relationship to these matters. 

8. The Applicant also seeks to challenge the Respondent’s contention that the Applicant was no more than a boarder during the years in which the Applicant contends there was a de facto relationship and suggests that the Respondent’s contentions are not supported by the first Respondent’s own records.  He has no other available method of obtaining those records other than through a subpoena.

9. Although the list of documents contained in the schedule to the subpoena issued to the first Respondent is very broad she did not object to on the basis that the subpoena was oppressive nor did she seek a variation to it. 

10. In the circumstances discussed having regard having to authorities I am satisfied that the subpoena issued to the Respondent seeks documents which are apparently relevant to the issues between the parties and was issued for a legitimate forensic purpose.

11. For the foregoing reasons I make the orders set out as the forefront of these reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 September 2018.

Associate: 

Date:  21 September 2018