Tang & Fan (No 2)
[2023] FedCFamC1F 333
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tang & Fan (No 2) [2023] FedCFamC1F 333
File number(s): SYC 6104 of 2015 Judgment of: CHRISTIE J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – REQUEST TO ISSUE SUBPOENA – Where the husband seeks leave to issue numerous subpoenae – Where the wife objects to the issuing of the subpoenae and herself seeks leave to issue subpoenae – Where both parties contend that the other party has not provided full and frank financial disclosure. Legislation: Family Law Act 1975 (Cth) ss 102NA, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1, rr 6.04, 6.06, 6.27, 6.31, 6.36
Taxation Administration Act 1953 (Cth), Division 355 of Schedule 1
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965
Cases cited: Carmel-Fevia & Fevia (2010) 43 Fam LR 405; [2010] FamCA 502 Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 27 April 2023 Place: Sydney The Applicant: Litigant in Person The Respondent: Litigant in Person ORDERS
SYC 6104 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANG
Applicant
AND: MS FAN
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to file subpoena addressed to the Proper Officer, National Australia Bank to obtain statements for accounts in the name of the respondent or in the name of the respondent and any other person.
2.Leave is granted to the applicant to file subpoena addressed to the Proper Officer, Commonwealth Bank of Australia for account statements in the name of the respondent or in the name of the respondent and any other person.
3.The respondent shall within seven days of the date of this order use her best endeavours to provide information to the applicant in respect of the account to which she transferred $11,000 on 10 September 2015 and the account to which she transferred $10,377 on 18 November 2015.
4.Leave is granted to the respondent to issue subpoena addressed to the Proper Officer of:
(a)Commonwealth Bank of Australia;
(b)National Australia Bank; and
(c)Westpac Banking Corporation;
to provide bank statements for accounts in the name of the applicant or in the name of the applicant and any other person.
5.Both parties are restrained from discussing these proceedings other than for the purpose of obtaining legal advice and both parties are restrained from providing documents returned under subpoena to any person except for the purpose of obtaining legal advice.
6.The interlocutory orders sought in the husband’s Initiating Application filed 23 November 2022 are dismissed.
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 the pseudonym Tang & Fan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The primary proceedings concern orders for adjustment of the parties’ financial interests following breakdown of their relationship.
The proceedings have a long history but are listed for final hearing on 24 and 25 August 2023.
This matter came before the Court for interim hearing on two separate applications filed by the applicant husband, Mr Tang, in preparation for the final hearing: the first as part of an application filed 23 November 2022 – the second as filed 27 February 2023 and amended 25 April 2023.
At the hearing, the husband agreed that his most recent application superseded both prior applications. Accordingly, the earlier application will be dismissed.
In the remaining application, the husband sought orders for leave to issue subpoenae. The wife objected to the issuing of those subpoenae.
The respondent wife, Ms Fan, filed a Response to the husband’s subpoena application on 3 April 2023 in which she herself sought leave to issue subpoenae. The husband in his amended application objected to the issuing of those subpoenae.
Both parties relied on an affidavit each in respect of the subpoena issue.
At the interim hearing the parties appeared without lawyers and were each assisted by an interpreter.
As a consequence of orders made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) it is anticipated that each of the parties will be represented at the final hearing.
BACKGROUND
The parties married in City J in 2010 and separated in September 2015.
The parties’ son, X, was born in 2011.
On 15 September 2015 the husband commenced family law proceedings in this Court. The parties had previously completed property proceedings in Country B.
The matter has come before the Court on various occasions to determine interlocutory issues.
Each party asserts that the other has failed to make full and frank financial disclosure.
THE LAW
Disclosure and subpoenas are dealt with in Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Rule 6.06 requires parties to financial proceedings to make full and frank disclosure of their financial circumstances. The requirements in the Rules are “shadowed by the over-arching principle of relevance. Thus, if there is any dispute about disclosure, the fundamental issue is that of relevance to the case” (Carmel-Fevia & Fevia (2010) 43 Fam LR 405).
If the documents are relevant then a party is obliged to discover them.
Rule 6.27 does not allow self-represented litigants to request the issue of a subpoena without the permission of the Court.
CONSIDERATION
Subpoena to the Australian Taxation Office (“the ATO”)
The husband sought to issue a subpoena to the ATO. Division 355 of Schedule 1 to the Taxation Administration Act 1953 (Cth) provides that the ATO cannot be compelled to comply with a subpoena. That aspect of the husband’s application will be dismissed. The wife remains obliged to discover any relevant tax records in her possession or control.
Subpoenae to banks
Each party sought to subpoena bank records in the name of the other party (or the other party with a third party).
Each party initially asserted that he or she had fully complied with the requirement to provide bank statements.
In submissions both the husband and wife indicated that the issue of a subpoena may result in the disclosure of personal details (in the husband’s case the payments of medical expenses of his parents; in the wife’s case the payment of medical expenses for a child not the child of the marriage). In each case this raised a concern that all bank statements may not have been discovered.
I indicated to the parties that if the bank statements contained information about financial expenses paid for others (for example dependents) then those facts may be relevant to the Court’s determination and would not be a basis to resist production.
In the course of the submissions (and as discussed below) the wife raised concerns about whether the husband had provided documents or information relevant to these proceedings to third parties. This was raised in opposition to the issue of subpoenae.
Section 121 of the Act provides:
Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
(5) An offence against this section is an indictable offence.
[(6) repealed.]
[(7) repealed.]
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.
(11) In this section:
court includes:
(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
electronic means includes:
(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
Rule 6.04(1) of the Rules provides:
(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
Rule 6.36(1) and (2) of the Rules provide:
Use of documents produced in compliance with subpoena for production
(1) This Division:
(a) applies to a subpoena for production; and
(b) does not apply to a subpoena for production and to give evidence.
(2) A person who inspects or copies a document under these Rules or an order:
(a) must use the document only for the purpose of the proceedings; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
These provisions operate to prevent a party from inappropriate use of documents which have been obtained for the purpose of the proceedings.
Ultimately I was concerned that the disclosure may not have been as extensive as each party claimed and I was not able to find definitively that each had discharged their duty. Accordingly, I propose to permit the parties to cause subpoena to be issued to banks.
There is an allegation by the wife that the husband has altered documents. I am not in a position at an interlocutory stage to make a finding.
The parties should have leave to issue subpoenae to banks for bank statements in respect of accounts held by either party individually or jointly with any other person. Accordingly, I will make orders that reflect that position.
Subpoenae to give evidence
The husband also sought to subpoena individuals to give evidence: Mr K, Mr L and Ms M.
Mr L and Ms M are the wife’s parents. In March and July of 2018 the wife filed affidavits by her parents. The wife now says she does not intend to rely on those affidavits. The wife says her parents live in Country B and consequently cannot be compelled to comply with a subpoena issued by this Court.
The wife’s decision not to rely on those affidavits is a decision she is entitled to make, albeit it may create some difficulties in due course for her in terms of the evidence she wishes to give about holding properties on a resulting trust for her parents.
There are a number of logistical hurdles which the husband’s application faces. Rule 6.31 says:
Conduct money and witness fees
(1) The person serving a subpoena must give the person subpoenaed conduct money sufficient for return travel between the place of residence or employment (as appropriate) of the person subpoenaed and the court.
(2) The amount of conduct money must be at least equal to the minimum amount referred to in Part 1 of Schedule 2.
(3) A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 2, immediately after attending court in compliance with the subpoena.
The husband did not address the costs of compliance.
The husband would have to serve the subpoena on the wife’s parents following the provisions in the Hague Convention on the Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. The wife says her parents are in Country B. If so, the subpoena would need to be served in Country B. I note that the husband contends that the wife’s parents were granted Australian permanent residence status.
Even if all those issues did not arise, the wife’s parents would become witnesses in the husband’s case and since his affidavit says he wants them to attend for cross-examination, this may prove problematic.
The husband also seeks that the Court issue a subpoena to Mr K to attend and give evidence. Mr K is the wife’s husband. The wife says she does not intend to call evidence from Mr K. Again, the wife’s decision not to call Mr K in her case is a decision which she is entitled to make. The husband wishes to ask Mr K questions by way of cross-examination. If the wife does not call Mr K to give evidence then the husband will not be able to cross-examine him. This is not cured by the husband effectively calling Mr K in his own case. I decline the application for issue of a subpoena to Mr K.
Subpoena to Real Estate Agent
The husband says:
31In about [mid] 2022, an ex-colleague of both parties told me the respondent and respondent family purchased 2-3 investment properties total value is about $3,000,000. The ex-colleague confirmed [N Real Estate] provided the services for those properties because they are also the client of [N Real Estate].
32I consider the rent payment from [Mr O] to the respondent in paragraph 29. There is beyond reasonable doubt that the respondent or respondent family are owned investment properties in Sydney. I am seeking leave to issue subpoena to [N Real Estate] to produce the documents related to the respondent and respondent family or family trust purchase, lease properties from 2015 to date.
The husband would need something more than the hearsay evidence of another client, of the real estate firm, before I would be persuaded that there is sufficient evidence to find that the subpoena to the real estate agency is appropriate. I decline the application.
Subpoena to Revenue NSW
The wife attached to her affidavit a real property search which listed properties owned by persons called Mr Tang. The wife accepts that not all these properties are owned by the husband. The wife says a subpoena should issue for land tax or similar records to determine whether the husband is the owner of properties (other than the Suburb D property which is in his name). The wife has provided no evidence which would otherwise support the proposition that the husband has acquired other real property in NSW. I would require further evidence before I could conclude that the wife has establish a basis for the subpoena. I decline the application.
Identifying bank account
The husband sought that the wife provide information about a specified bank account number. The wife had made two transfers from her bank account to this account shortly after separation. The wife told me from the bar table she does not recall where those funds were sent. This will be an issue at final hearing and I will make an order that the wife use her best endeavours to provide the information to the husband.
Injunction application
I have discussed the law which applies to dissemination of information obtained in the proceedings and the prohibition on publication of an account of proceedings which arises from s 121 of the Act. I will make an order that sets out the parties’ obligations in that regard. This should address the concerns raised by the wife in the context of her opposition to the subpoena.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 3 May 2023
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