Stennard & Stennard
[2023] FedCFamC1F 608
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stennard & Stennard [2023] FedCFamC1F 608
File number(s): CAC 2501 of 2020 Judgment of: GILL J Date of judgment: 21 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the wife seeks to subpoena telephone records – Where the wife asserts that marital funds were dissipated through the marriage – Where the wife has inferred that there are hidden property, assets or businesses from a failure to accumulate wealth – Where the husband has objected to the subpoena on the grounds of relevance. Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 21 July 2023 Place: Canberra Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondent: Ms Clifford, Dobinson Davey Clifford Simpson ORDERS
CAC 2501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STENNARD
Applicant
AND: MR STENNARD
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
21 JULY 2023
THE COURT ORDERS THAT:
1.The subpoena directed to the Proper Officer, C Limited issued on 17 April 2023 is struck out.
2.I direct that the wife advise C Limited of the striking out of the subpoena and of the making of these orders and provide to C Limited a copy of these orders.
3.The husband’s costs of today are reserved
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
This hearing relates to a subpoena issued on behalf of the wife directed to the Proper Officer, C Limited directing that entity to produce to the court:
For the period 1 January 2018 to 30 June 2020, copies of all documents, records and communications held by you relating to the accounts associated with [Mr Stennard], [E1 Pty Ltd] as Trustee for the [Stennard] Family Trust, and [E2 Pty Ltd], including but not limited to data usage, all calls in and out, and all sms/mms messages to and from the following mobile telephone numbers:…
Thereafter three particular numbers are identified, two particular numbers being those of the wife and her mother are excluded, but otherwise the numbers subject to the subpoena are at large, provided they are connected with the entities named above.
Objection has been taken by the husband prior to production taking place, firstly on the grounds of relevance. Given that such a challenge had been made the wife effectively placed on hold the production pending the ruling in respect of the subpoena such that the wife has not been put to the expense of, and C Limited has not been put to the trouble of, making production in the face of an objection which may see such production of no use. It was a sensible step undertaken in pursuit of minimising the difficulty and expense in the proceedings.
The wife has set out for me the purported relevance of the material. She makes a general assertion that marital funds were dissipated through the marriage. Her prime submission in relation to that is to demonstrate that between the years 2015 and 2020 the balance on the parties’ mortgage increased by a little over $25,000 (see exhibit W1). She contends that the parties lived a modest lifestyle, yet given their professions were in receipt of a large income. Accordingly, she submits that income has disappeared from the records that the wife has, she asserts that there have been many transfers, including by NET bank and cash withdrawals and cash advances over the years with bills paid with different numbers and the Australian Taxation Office paid from a number of accounts. The wife has produced a number of banking records to indicate that there were a significant number of recipients who she does not know the identity of who were recorded as recipients from transfers. The wife infers from this failure to accumulate wealth in the face of significant income that there may be undisclosed assets or property or businesses held by the husband. She asserts that the various transactions raise the spectre that this may be so. The wife, however, accepts that the proposition that there may be such other entities is a speculative proposition on her part.
The significance then of the subpoena is the wife hopes to discover, by means of the subpoena, telephone records that show patterns or somehow show that there are these investments. The wife accepts that the proposition that there may be other investments or assets or businesses or property is speculative and that her approach to obtain the telephone records is speculative as to the possibility that there may be evidence uncovered there to demonstrate such. By way of further justification the wife says that there are too many odd things, she hopes to get to the bottom of those odd things and to the possibility of other property investments and businesses by means of the subpoena.
I do not share with the wife her view that the subpoena is sufficiently relevant to justify its issue to C Limited. Whether it is expressed as a need to determine that it is on the cards that there is material that could be produced that would be material to a party’s case or whether it is expressed in the language of a fishing expedition, being an exercise where a party is seeking to determine whether or not the issuing party has a case at all, here in respect of undisclosed assets I am unpersuaded that the subpoena sought to be issued by the wife carries with it such sufficient prospect of potential assistance to her case, that sits outside the realm of speculation upon speculation, such as to justify the subpoena remaining issued to C Limited. Accordingly, the subpoena will be struck out.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 26 July 2023
0
0
0