Theobald and Delancy (No.3)
[2012] FMCAfam 96
•15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THEOBALD & DELANCY (No.3) | [2012] FMCAfam 96 |
| FAMILY LAW – Practice and procedure – whether the Court has the power to order a party to sign a Freedom of Information authority to Centrelink – whether limitations should be allowed in respect of information sought under that authority. |
| Civil Procedure Act 2005 (NSW), s.56 Federal Magistrates Act 1999 (Cth), s.45 |
| Attard v Hore [2002] QSC 437 Merkuloff v Yalisheff [2003] NSWSC 1183 Mitty & Mitty & Ors (No.2) [2008] FamCA 973 Wray v Wray [2007] NSWSC 164 |
| Applicant: | MR THEOBALD |
| Respondent: | MS DELANCY |
| File Number: | SYC 4104 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 31 January 2012 |
| Date of Last Submission: | 31 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Meehans Solicitors |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Kerrisons - The Law Firm |
| Independent Children’s Lawyer: | Mark Whelan, Lawyer |
ORDERS
By not later than 4:00pm on 17 February 2012, the Respondent sign, date and cause her solicitors to forward to the Applicant’s solicitors an authority under the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink, without qualification, to provide to the Sydney Registry of this Court a copy of her Centrelink file, including all applications made for Centrelink or other benefits, letters and all other correspondence on the file.
The Applicant bear or otherwise reimburse the Respondent for any fees associated with the Freedom of Information request.
The material produced under the Freedom of Information request be held together with the material produced under subpoenas issued in these proceedings and forthwith upon the receipt of such material, the parties’ legal representatives and the Respondent be granted inspection access thereto.
Paragraph three (3) of the orders sought in the Applicant’s Application in a Case filed on 1 December 2011 be consolidated with the matters to be considered at the Final Hearing.
The Applicant be granted leave to issue two (2) further subpoenas, bringing the total number of subpoenas filed by him to 10.
The Applicant forthwith cause his solicitors to forward a sealed copy of these Orders to the Respondent’s solicitors.
Subject to the issue of costs, the Applicant’s Application in a Case be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)The Court expects the parties to file their updated Financial Statements and other material in accordance with the trial directions contained in the Orders made on 8 August 2011.
(B)The Applicant seeks his costs of his Application in a Case and this issue will be consolidated with the issues to be considered at the Final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Theobald & Delancy (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4104 of 2009
| MR THEOBALD |
Applicant
And
| MS DELANCY |
Respondent
REASONS FOR JUDGMENT
Introduction
In the Application in a Case filed on 1 December 2011, the applicant, MR THEOBALD (“the father”) seeks certain procedural orders relating to disclosure of material by the respondent, MS DELANCY (“the mother”).
Background
The factual background to these proceedings has been previously canvassed by me in the first of what are now three interim decisions in this matter.[1]
[1] Theobald &Delancy [2010] FMCAfam 1140, in particular, at [6] – [15].
Relevantly to the present decision, the father’s Application in a Case filed on 1 December 2011 sought, inter alia an order in the following terms:
“4. That the Respondent mother within 7 days execute the authority directed to Centrelink forwarded to the Respondent mothers [sic] solicitors on 8 September 2011.”
The other orders sought in the father’s Application in a Case were not pressed at the interim hearing and will not be the subject of comment in this decision.
Annexure “A” to the Affidavit of Sean Cahill, the father’s solicitor, sworn 29 November 2011 and filed 1 December 2011 includes the authority directed to “The Proper Officer” at Centrelink which is referred to in the father’s Application in a Case (“the authority”). The authority reads as follows:
“I, MS DELANCY of C/- Kerrisons the Law Firm, (omitted) in the State of New South Wales, born (omitted) 1986 hereby authorise and direct the office of Centrelink to provide, under the Freedom of Information Act, to Messrs Meehans, Solicitors, (omitted) NSW (for the attention of Mr Sean Cahill, Solicitor), copies of my Centrelink file including all applications made for Centrelink and other benefits, letters and other correspondence and all other documents on my Centrelink file.”
At the hearing of the father’s Application in a Case on 31 January 2012, the father was represented by his solicitor, Mr Cahill, the mother by Mr Fernie, solicitor, who appeared in the matter as agent for Kerrisons Law Firm and the Independent Children’s Lawyer by his agent, Ms M, solicitor.
During the course of submissions, Mr Fernie handed to the Court a copy of the amended authority (“the amended authority”) that the mother had signed on 30 January 2012, that is, on the day before the mention. The amended authority included a number of qualifying paragraphs, however the father, through his solicitor, informed the Court that he joined issue only with the first of these (“the qualification”). The relevant paragraph of the amended authority provided as follows:
“This Authority is given on the basis that:
1. Any identifying numbers or other identifying information, relating to myself or any other persons, contained in my Centrelink records are deleted. The identifying numbers to be deleted, without detracting from the generality of this requirement, must include telephone numbers, tax file numbers and account numbers.”
The substantive proceedings are currently listed for final hearing on 2 April 2012 with an estimated duration of not more than 3 days. Given the protracted history of these proceedings, the Court is desirous of having the final hearing occur on the date listed.
Issues
The lone issue for the Court to determine in this interim decision is whether the Court should order the mother to execute a version of the authority that does not contain the qualification. As an adjunct to this issue is the matter of whether or not the Court has the power to make such an in personam order with respect to material that is not otherwise within the custody or control of a party.
Submissions
The parties each made oral submissions to the Court through their respective legal representatives. Given that this issue was relevant only to the parties’ property dispute, the Independent Children’s Lawyer did not seek to be heard on the matter.
Father’s submissions
The father, through his solicitor, argued that the provision by the mother of the (albeit amended) signed version of the authority constituted a waiver by her of any objection to the propriety of an order or request that she cause her Centrelink records to be made available for the purposes of these proceedings. He further submitted that such arguments would be overcome in any event by the overarching and ongoing duty of parties in family law property proceedings to “make full and frank disclosure of the party’s financial circumstances…”[2]
[2] Family Law Rules 2004 (Cth), reg.13.04.
The father relied on a number of authorities in arguing that this Court has the power to compel the mother to issue an authority to Centrelink in order to provide adequate disclosure. These authorities were Merkuloff v Yalisheff [2003] NSWSC 1183 (“Merkuloff”) and Wray v Wray [2007] NSWSC 164 (“Wray”). After referring the Court to these cases, Mr Cahill submitted:
“The only matters in response, your Honour, would be in relation to the court’s power. It’s the father’s position that the court clearly has power and the mother’s conduct in executing the authority in the form that it has, has acted as a waiver or acquiescence to the court having the power. The question is merely whether or not the restriction sought by the mother is appropriate.”[3]
I will return to the cases of Merkuloff and Wray in due course.
[3] Transcript, 31 January 2012, page 8.
Mother’s submissions
Following a brief adjournment to allow him to read Merkuloff and Wray, Mr Fernie, for the mother, submitted that:
“The harder question is the question of the powers of your Honour to make an order that the wife sign an authority. Look, your Honour, I’ve had a read of these two cases. Both of them were decisions in circumstances where the other side opposed the making of any such orders. That’s not the case here. This is a case where we say we’ve given an appropriate authority and I might say this: the matter of [Wray], paragraph 16, Gzell J wonders whether there should be a modification of the court’s general order.
He wonders that in circumstances where he doesn’t know what the file he contains. So he leaves open the possibility that he might make an in personam order that the litigant in that matter be forced to make an authority, but it can be modified. Really, that’s the position you find yourself in here, your Honour. The only modifications we seek to the order are that third parties and their telephone numbers and bank account details be left out and the wife’s bank account details be left out, and we’ve got the Privacy Act looming over us all anyway, your Honour. So that’s all I have to say.”[4]
[4] Transcript, 31 January 2012, page 8.
Discussion
By virtue of s.207 of the Social Security (Administration) Act 1999 (Cth), Centrelink is specifically exempt from compulsion to provide material under subpoena issued by any Court. Section 207 provides:
“An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions.”
Consequently, in matters such as this where a party seeks to have Centrelink produce a party’s records, it is necessary for the party concerned to authorise Centrelink to comply with a Freedom of Information request from their opponent. Such is the situation in the present case.
Under both the Family Law Rules 2005 (Cth)[5] and the Federal Magistrates Court Rules2001 (Cth) (“the FMC Rules”), parties to financial proceedings have a duty to provide “full and frank disclosure of his or her financial circumstances” to the Court and to the other party. The full expression of this duty in the FMC Rules is found in reg.24.03, which is in the following terms:
“(1) A party required under this Part to file a financial statement or affidavit of financial circumstances must make in the statement or affidavit a full and frank disclosure of his or her financial circumstances, including details of:
(a) any vested or contingent interest in property (including real or personal property, superannuation and legal and equitable interests); and
(b) income from all sources, including any benefit received in relation to, or in connection with, the party's employment or business interests; and
(c) the party's other financial resources; and
[5] See reg.13.04 of the Family Law Rules 2004 (Cth).
(d) any trust:
(i) of which the party is, or has been since the separation of the parties, the appointor or trustee; or
(ii) of which the party, or the party's child, spouse or de facto spouse is, or has been since the separation of the parties, an eligible beneficiary as to capital or income; or
(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is, or has been since the separation of the parties, a shareholder or director of the corporation; or
(iv) over which the party has, or has had since the separation of the parties, any direct or indirect power or control; or
(v) of which the party has, or has had since the separation of the parties, the direct or indirect power to remove or appoint a trustee; or
(vi) of which the party has, or has had since the separation of the parties, the power (whether subject to the concurrence of another person or not) to amend the terms; or
(vii) of which the party has, or has had since the separation of the parties, the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii) over which a corporation has, or has had since the separation of the parties, a power mentioned in subparagraphs (iv) to (vii), if the party is a director or shareholder of the corporation; and
(e) any gift or other disposition of property made by the party since the separation of the parties; and
(f) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.”
I will note at this point that the duty of disclosure imposed by reg.24.03 of the FMC Rules does not provide any positive exemption on the parties from providing their respective bank account numbers or other information by way of disclosure. Indeed, the prescribed Financial Statement form contains fields for the parties to provide “name and branch BSB”, “account holder and number” and “current balance” information in relation to their bank accounts. I note that the mother has not properly supplied this information in her Financial Statement sworn on 27 May 2011 and filed on 31 May 2011.
It is also open to a party, and is fairly common practice, to require the production by the other party of tax returns and notices of assessment. Indeed, such disclosure is mandated by reg.24.04 of the FMC Rules. There is no provision allowing a party to redact such documents to remove certain information from the documents provided.
Any document provided by way of disclosure during the course of proceedings is specifically protected against use for any other purpose by another party by the terms of reg.14.11 of the FMC Rules, although this is subject to the qualification contained in that regulation. Regulation 14.11(1) reads as follows:
“(1) An order or undertaking, whether express or implied, not to use a document for any purpose other than for the proceeding in which it is disclosed does not apply to the document after it has been read to or by the Court or referred to in open Court in such terms as to disclose its contents.”
Regulation 14.11(1) is followed by a note which is in the following terms:
“An implied undertaking arises where documents are produced in the process of discovery: Harman v Secretary of State for the Home Department [1983] 1 AC 280.”
I will note at this point that I am not making an Order for discovery in these proceedings and that no application for such an Order has been made. Discovery is a process that is expressly disallowed in this Court under s.45 of the Federal Magistrates Act 1999 (Cth), unless the Court otherwise orders it as being “in the interests of the administration of justice”[6]. Interestingly, however, reg.14.11(2) provides as follows:
“(2) Subrule (1) does not apply to a family law or child support proceeding and is subject to any order of the Court on the application of a party or of a person to whom the document belongs.”
The Court may therefore consider any application by “a party or the person to whom the document belongs” and make consequent orders with respect to the documents. At present, no such application is before the Court; indeed, until such time as documents may be produced, the Court will treat such considerations as merely speculative. In any event, until such time as the documents that Centrelink may produce under the Freedom of Information request are relied upon at hearing, the mother enjoys the same protection against their use or misuse as she does for all other material related to these proceedings.
[6] A useful summary of the considerations to be taken into account in ordering discovery in this Court was provided by my brother Lucev FM in Abrahams v Qantas Airways Ltd (No. 2) [2007] FMCA 639 at [25].
The withholding of specific financial information which may enable an opponent to issue subpoenas or otherwise test a party’s case would seem inimical to the principle of full disclosure. Accordingly, the Court is of the view that any request for production of documents by Centrelink should be unqualified and that the first qualification in the amended authority should be removed.
Power to direct a party to sign a Freedom of Information authority
The Court now turns its attention to the question of whether it has the power to compel the mother to sign the authority in the terms referred to above.
As previously referred to, Mr Cahill provided the Court with two authorities. The first of these is Merkuloff[7], a decision of Young CJ in Eq (as he then was) in the Supreme Court of NSW concerning proceedings brought under the Property Relationships Act 1984 (NSW). In that case, the defendant sought an order compelling the plaintiff to make a Freedom of Information application to Centrelink of a similar nature to that with which the Court is presently concerned.
[7] [2003] NSWSC 1183.
After considering case law regarding the duty of rectitude owed by parties to proceedings in the equitable jurisdiction, his Honour made the following comments[8]:
[8] Ibid, at [17] and [19].
“When a person does bring proceedings in this Court, he or she is under an obligation to assist the court in coming to a fair conclusion. If a person deliberately says to their opponent and to the court ‘I will not co-operate’ then the usual consequence is that their action is stayed until they do co-operate.
…
I have no doubt that I have the power to make an in personam order to the plaintiff to cause Centrelink to produce the documents to him under the Freedom of Information Act. However, as I say, I do not want the parties to waste lots of money on legal costs and, accordingly, the appropriate order to make is that the plaintiff’s proceedings be stayed until the plaintiff forwards to the defendant the information required. How the plaintiff gets that information is a matter for him.”
Interestingly, therefore, Young CJ in Eq did not make an in personam order that the defendant make a Freedom of Information request to Centrelink, but the proceedings were stayed until such time as the defendant provided the material from Centrelink, effectively forcing his hand to do so.
The next case to which Mr Cahill referred the Court was Wray[9], a decision of Gzell J, again in the Supreme Court of NSW, in a claim under the Family Provision Act 1982 (NSW). His Honour considered a number of authorities including Merkuloff and Attard v Hore [2002] QSC 437 and eventually decided to make an in personam order that the defendant sign an authority to Centrelink under the then NSW Freedom of Information Act. His Honour made the following comments:
“[14] … it does not seem to me that the principle underlying the in personam orders in those cases should be different in the case of a plaintiff seeking information from Centrelink with respect to a defendant. A defendant is also obliged to act with candour and assist the Court. The Civil Procedure Act 2005, s 56(3) places a duty on all parties, plaintiffs and defendants, to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings.
[15] In the circumstances it appears to me that a foundation has been made for an order that the defendant sign an authority addressed to Centrelink and the Social Security Appeals Tribunal.
[16] In Attard, Dutney J said he was concerned by the question whether the Centrelink file was directly relevant as its contents were unknown. I share that concern. If the contents of the files were known, the court might modify its order. But here it is clear that a debt was owed by the defendant and the deceased to Centrelink and, on balance, I am of the view that the contents of the files are relevant and the notice of motion should succeed.”
[9] [2007] NSWSC 164.
Regulation 1.03 of the FMC Rules contains a provision similar to the “overriding purpose” in s.56 of the Civil Procedure Act 2005 (NSW):
“(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.”
A similar mandate is laid out in reg.1.04 of the Family Law Rules 2004.
I note the point raised by Mr Fernie[10] about the comment made by Gzell J (quoted above) that he might have been minded to modify the order if the contents of the Centrelink file were known. With respect, Gzell J was referring to concerns about the relevance of unknown material and his Honour rightly declined to enter into speculation or to modify his order on that basis. I find myself in the same position, the material not having yet been produced, much less tendered into evidence.
[10] See the extract in paragraph 12 herein.
Finally, I note that such an order directing a party to provide an authority under Freedom of Information is not unprecedented in proceedings under the Family Law Act 1975 (Cth), as Fowler J made such an order in Mitty & Mitty & Ors (No.2) [2008] FamCA 973.
Conclusion
I am satisfied that it is within this Court’s power, for the regulation of proceedings before it, to make an in personam order against the mother that she sign an authority to Centrelink in the terms sought by the father. I do not think that the provision to the father of the information which the mother seeks to have redacted is prejudicial to the mother, rather, I take the view that the supply of such information is directly in keeping with the mother’s ongoing duty of disclosure. Much, if not all, of the information that the mother seeks to guard is information that would ordinarily have been the subject of ordinary disclosure, as outlined above.
I am further satisfied that, if appropriate, the Court can place suitable restrictions on the use of the material produced by Centrelink under the Freedom of Information application.
There will therefore be an Order that the mother forthwith sign an authority that does not contain the qualification complained of by the father and that she cause her solicitors to thereafter forthwith forward the signed authority to the father’s solicitors.
I will Order that the authority direct Centrelink to forward the produced material to the Sydney Registry of this Court and that such material be then held in the Subpoenas and Exhibits section of the Registry. I will grant immediate inspection access to the material to the parties’ legal representatives and to the Respondent. I am satisfied that such a course will not prejudice either party and should in fact provide further comfort to the Respondent as to the security of the produced documentation against any form of misuse.
I note that the trial directions made on 8 August 2011 provided that the parties file updated Financial Statements together with their trial affidavits in accordance with the timetable specified in those Orders. The Court considers that the Respondent does indeed need to file and serve an updated Financial Statement to enable her to provide the more fulsome details which are lacking in her Financial Statement filed on 31 May 2011 and to take account of her relationship with her current partner. The Respondent’s trial material, including her updated Financial Statement should therefore be filed and served by not later than 14 days prior to the date of the Final Hearing, that is, by 19 April 2012.
In his Application in a Case, the father also sought leave to issue a further subpoena to “(omitted)”. In light of this decision, that request does not seem unreasonable. Accordingly, the father will be granted leave to file 2 further subpoenas, making a total of 10, including those which he has filed to date.
The balance of the orders sought in the father’s Application in a Case will be considered at the Final Hearing, hence, the Application in a Case will be otherwise dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 15 February 2012
6
6