Strahan and Strahan (Various Interim Orders) (No 2)

[2010] FamCA 939

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (VARIOUS INTERIM ORDERS) (NO. 2) [2010] FamCA 939

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking orders that the husband signs an authority permitting the disclosure of documents from a government agency – consideration of the appropriateness of the proposed authority – orders that the husband sign an amended version of the authority

Freedom of Information Act 1982 (Cth)

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Holland

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT: Mr D. Berman

SOLICITOR FOR THE RESPONDENT: Robinson & Mason Lawyers

Orders

UPON NOTING that the husband’s solicitor will make available to the wife’s solicitors by 5.00 pm today the USB stick which contains the recording of the meetings Mr GG had with the husband’s Hong Kong Lawyers.

IT IS ORDERED THAT

1. Within seven [7] days from today the husband provide the wife’s solicitors with the authority in “DP1” signed by him SAVE AND EXCEPT the last three lines on page one of the authority are deleted that being the words:

   “In relation to the Freedom of Information request for documentation pursuant to section 15 of the Freedom of Information Act 1982 requested by [the wife] on 18 March 2009 and received by Austrac on 20 March 2009”.

2. The wife is restrained from using any such information obtained for any purpose other than for these proceedings in the Family Court of Australia.

3. The costs of both parties are reserved in relation to the “Austrac authority” issue.

4. The wife is to file and serve by 4.00 pm on 12 November 2010 a list of documents to which she objects providing inspection (being a full description sufficient to enable the identification of the legal professional privilege issue) and any further affidavit upon which she seeks to rely in relation to the “privilege” issue.

5. The matter is adjourned to Friday 3 December 2010 at 10.00 am before the Honourable Justice Dawe in relation to the “privilege” issue.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Various Interim Orders) (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am considering further the application brought on behalf of the wife seeking an order that the husband sign an authority directed to the Australian Transaction Reports and Analysis Centre for the provision of documents and information.  The application was originally brought before the Court in April of this year on behalf of the wife.  Discussions took place on the last occasion about the wording of the actual authority for which an order was being sought that the husband sign.  Subsequently there has been an amended application in the case filed on behalf of the wife on 7 October 2010 attaching a new authority and supported by an affidavit of the wife’s solicitor.

2. The order sought is opposed by the husband on the basis of the breadth of the authority, both as to its actual wording and to the date, and on the basis that there is no affidavit material before the Court indicating the need to obtain the documents and referring to the exercise by the wife as a “fishing expedition.” 

3. On behalf of the husband it is maintained that he has made full and frank disclosure of those documents which he is required to disclose. 

4. As has been remarked before in these proceedings, the outstanding proceedings between the parties in relation to financial matters has been ongoing for many years and there have been many documents filed, now in excess of 550.  Some of those of course relate to children’s issues but many relate to the question of the financial issues.

5. One of the significant issues apparent from the documents on file is the allegation by the wife that the husband has not made full disclosure of his assets and financial resources and the steps she has taken to obtain information she says should be available in relation to the relevant assets, income and financial resources of the husband. 

6. The current application for the husband to sign the authority refers to a period beginning on 1 July 1999.  This date is referred to as relevant in the affidavit of the wife’s solicitors (being based upon information allegedly given to the solicitor by the wife) in which it is asserted that the husband removed records at the time of separation.  The wife has also instructed her solicitor that in 1999 he restructured many of the financial affairs of the parties.  The authority also has now been substantially altered from the original authority that was part of the first application such that it now specifically refers to:

   “… correspondence between Austrac and the husband and any reporting entities for which the husband is recorded as the ordering customer, the beneficiary customer or the authorised officer or representative.”

7. It also refers to:

   “…other records of transactions reported to Austrac under the relevant legislation by the husband “or again” any of the reporting entities for which his name is recorded (again) as the ordering customer, the beneficiary customer or the authorised officer or representative.”

8. The authority then continues with the words:

   “… in relation to the Freedom of Information requests for documentation pursuant to section 15 of the Freedom of Information Act 1982 requested by [the wife] on 18 March 2009 and received by Austrac on 20 March 2009.”

9. That request is the next annexure to the affidavit of the wife’s solicitor filed on 7 October 2010 and refers in schedule “A” and in particular to paragraphs 2 and 3 of schedule “A” a large number of companies including, in section 3, some 22 companies. 

10. It is not clear from the affidavit, nor from the authority itself how the authority to be signed by the husband with the specific dots points in paragraph 1 is interconnected with the companies referred to in the request for documentation form filed by the wife with Austrac back in 2009.  Paragraph 2 of the authority refers to the particulars with respect to all of those correspondence, transactions and records, and again is presumably referring back to paragraph 1, including the reference to the Freedom of Information request.

11. Considering the authority as currently drafted, I do not propose to order that the husband sign the document in its current form.  If the husband were to be ordered to sign an authority, it would have to be with the deletion of those last three lines on the first page of the authority. 

12. The question arises, however, whether the husband should be ordered to sign the authority.  The submission on behalf of the husband has been that to sign the authority would be oppressive and objectionable.  Signing an authority in itself is not oppressive.  It simply requires a signature. 

13. “Objectionable” may relate to the disclosure of material that might be private or make some imposition on the husband. The Freedom of Information Act makes provision for the protection of private information. However, in this case the authority, if limited to the husband or entities in which he has been the authorised officer or representative, would disclose information which may well be relevant to the ascertainment of the facts in this matter, namely, the assets, income and financial resources of the parties.

14. I am aware that the Freedom of Information Act is such that if the husband signs an authority that is an authority on his behalf and would not be an order or authority for the Austrac to provide information which would breach the privacy of other persons or entities.  It would merely relate to the husband as described as a person receiving money or sending money overseas or being the authorised officer or representative of such an entity. 

15. I accept on the face of it that these proceedings are unusual to the extent that one of the significant issues asserted to be relevant by the wife is the ascertainment of what is the asset pool or what has become of assets or financial resources.  To that extent, therefore, I reject the submission that ordering the husband to sign such an authority would be oppressive and objectionable.

16. I also reject the concept that the authority would authorise Austrac to disclose information about other persons that would otherwise be protected by the provisions of the Freedom of Information Act.

17. I, therefore, order that within seven days from today the husband provide the wife’s solicitors with the authority in DP1 signed by him, save and except that the last three lines on page 1 of the authority are deleted, that being the words:

    “… in relation to the Freedom of Information requests for documentation pursuant to section 15 of the Freedom of Information Act 1982 requested by [the wife] on 18 March 2009 and received by Austrac on 20 March 2009.”

18. That will enable the wife to seek the disclosure of information from Austrac which would be prevented from disclosure because it related to the husband and was protecting the husband’s privacy but does not authorise Austrac to disclose information to the wife’s solicitors which would breach the rights of privacy of other persons or entities. 

19. That order is made clearly on the understanding that the wife is restrained from using any such information obtained for any purpose other than instructing solicitors for these proceedings in the Family Court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  20 October 2010