SEAGER & CAGNON - [2020] FCCA 1479

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEAGER & CAGNON

[2020] FCCA 1479

Catchwords:
FAMILY LAW – Procedural – subpoena issued by the Applicant to the National Australia Bank for production of bank statements by the “housemate” / “partner” of the Respondent – objection to the subpoena on the grounds of relevance and fishing – Notice of Objection dismissed.

Cases cited:

Anderson & Anderson & Ors [2014] FamCA 491

Martin & Martin and Anor (No 2) [2014] FamCA 232

Papadopoulos & Papadopoulos(No 2) [2007] FamCA 1683

Trade PracticesCommission v Arnotts Limited (No 2) [1989] FCA 248

White v Tulloch (1995) FLC 92-640

Applicant:

MS SEAGER

Respondent:

MR CAGNON

File Number:

MLC 4936 of 2017

Judgment of:

Judge Kari

Hearing date:

29 May 2020

Date of Last Submission:

29 May 2020

Delivered at:

Adelaide

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Purdie Jordan

The Respondent appeared in person.

ORDERS

That the Notice of Objection filed 17 February 2020 to the Subpoena to the National Australia Bank issued on 4 December 2019 be dismissed.
That the parties have leave to inspect and copy those documents produced pursuant to the Subpoena to the National Australia Bank issued on 4 December 2019 and returned on 18 December 2018.

IT IS NOTED that publication of this judgment under the pseudonym Seager & Cagnon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

MLC 4936 of 2017

MS SEAGER

Applicant

And

MR CAGNON

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive proceedings between parties relate to the question of property settlement.
The issue for determination at this juncture is of narrow focus and relates to a subpoena that the Applicant issued to the National Australia Bank on 4 December 2019 for the production of bank statements relating to bank accounts held by a person whom the Respondent has variously described as his “housemate” / “partner”, Ms A.
The subpoena itself sought production of documents in the following terms:
all statements from 21 December 2015 to the present for all accounts held in the names of, Mr Cagnon (also known as Mr Cagnon) date of birth 1989 and Ms A, either jointly or severally, including but not limited to, the Home Loan Account in the name Mr Cagnon BSB number ...1 Account number ...98.
Neither Ms A, nor the Respondent objected to the production of Mr Cagnon’s banking records with the National Australia Bank, nor did they object with respect to any records relating to accounts held jointly between the Respondent and Ms A.
Ms A’s objection related only to the inspection and copying of records that relate to her personal and separate accounts. The objection was based on two separate grounds:
a)Firstly, her Notice of Objection cited that “I have not been served with this subpoena and therefore object to any parties viewing it’s contents”; and
b)Secondly in her affidavit filed in support of the objection she asserted…

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 SEAGER & CAGNON

Details

AGLC: SEAGER & CAGNON [2020] FCCA 1479
Case: [2020] FCCA 1479
Decision Date: 5 June 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Kari considered an application by the Applicant concerning a subpoena issued to the National Australia Bank. The subpoena sought the production of bank statements belonging to the Respondent's "housemate" or "partner." The Respondent objected to the subpoena on grounds of relevance and that it constituted a "fishing expedition."

The central legal issue before the Court was whether the subpoena, as issued, was valid and ought to be set aside, or if the objection thereto should be dismissed. This required the Court to assess the relevance of the requested bank statements to the proceedings and determine if the subpoena was being used for an improper purpose, such as an unfettered search for evidence.

Judge Kari dismissed the Notice of Objection. The Court reasoned that the information sought by the subpoena was relevant to the financial circumstances of the parties, which is a key consideration in family law proceedings. The Court found that the subpoena was not an improper fishing expedition but rather a legitimate attempt to gather material pertinent to the resolution of the dispute.

Consequently, the Court ordered that the Notice of Objection be dismissed. Furthermore, the parties were granted leave to inspect and copy the documents produced by the National Australia Bank pursuant to the subpoena.

Orders

Orders of the court

That the Notice of Objection filed 17 February 2020 to the Subpoena to the National Australia Bank issued on 4 December 2019 be dismissed.

That the parties have leave to inspect and copy those documents produced pursuant to the Subpoena to the National Australia Bank issued on 4 December 2019 and returned on 18 December 2018.

Background

Background to the litigation

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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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