THUKRAL & TRISHNA

[2019] FamCA 944

FAMILY COURT OF AUSTRALIA

THUKRAL & TRISHNA [2019] FamCA 944

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – Where the Registrar ordered that the wife’s solicitors have first access to subpoenaed material for the purpose of redacting information that may reveal the whereabouts of the wife and/or child – Where an Apprehended Domestic Violence is in place for the protection of the wife and child – Where there is an ongoing investigation by the Joint Investigation Response Team – Where the approach taken by the Registrar was cautious and appropriate – Application dismissed.

APPLICANT: Mr Thukral

RESPONDENT: Ms Trishna

FILE NUMBER: SYC 3986 of 2019

DATE DELIVERED: 9 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: In Chambers

Orders

1. The Court Noted that the wife’s objection to orders for inspection of documents produced under subpoena by the Department of Human Services, NSW Department of Education, B Medical Centre, C Medical Centre and D School are withdrawn.

2. Insofar as they apply to documents produced by the Department of Human Services, NSW Department of Education, B Medical Centre, C Medical Centre and D School, paragraphs 4 and 5 of the orders of 8 October 2019 are discharged.

3. Leave is granted to the parties to inspect the documents produced on subpoena by the Department of Human Services, NSW Department of Education, B Medical Centre, C Medical Centre and D School.

4. Insofar as the husband’s Application in a Case filed on 16 October 2019 sought a review of the orders made on 8 October 2019 in respect of the inspection of documents produced by E Centre, the Application is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thukral & Trishna has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3986 of 2019

Mr Thukral

Applicant

And

Ms Trishna

Respondent

REASONS FOR JUDGMENT

Introduction 

1. There are substantive parenting proceedings between the parties.

2. On 16 October 2019 Mr Thukral (“the husband”) filed an Application in a Case seeking to review the decision of a Registrar made on 8 October 2019 as to the inspection of documents produced on subpoena. 

3. The orders set out above are made for the following reasons.

The Hearing

1. On 31 October 2019 I directed that the review would be heard in chambers and that any further evidence or submissions be filed and served within seven days.  An email went from my Associate to the parties informing them of those orders.  No documents were filed pursuant to that direction.  However, on 15 November 2019 and prior to an order being made on the review application, a letter was received from the solicitors for the wife to the following effect:

   …

   We refer to your email of 31 October 2019 in relation to the Review Application filed by the husband.

   We are instructed our client does not press the Objections filed in relation to the subpoenas issued to C Medical Centre, NSW Department of Education, D School, Department of Human Services and B Medical Centre

   Our client does however press the Objections filed in relation to the subpoenas issued to ANZ Bank, Commonwealth Bank and E Centre and we enclose submissions in relation to these Notices of Objection.

   We confirm the husband’s solicitors and the Independent Children’s Lawyer have been copied into this correspondence.

2. The husband’s application was determined in chambers.

Discussion

1. A review application is determined as a fresh hearing. 

2. For reasons that are not apparent, there were two sets of orders made by the Registrar in these proceedings on 8 October 2019.  The husband was aware of that situation as he refers to it in his supporting affidavit. 

3. The sets of orders deal with different subpoenas.  One set of orders is as follows:

   1.On 29 August 2019 the Court issued subpoenas filed on behalf of Applicant/Father as follows to The Department of Human Services, NSW Department of Education, E Centre, B Medical Centre, C Medical Centre, D School, \ (“the subpoenas”) have come before me today in chambers.

   2.On 23 September 2019 Notices of Objection was filed by the Wife in relation to the subpoenas.

   3.The Notice of Objection seek first access to the documents produced in response to the subpoenas for the purpose of redacting any information that may identify the Wife’s address or whereabouts or the child’s school.

   4.On or before 5 p.m. on Wednesday, 23 October 2019, the Wife’s legal representatives are to have first access to the documents produces in answer to the subpoenas and are to attend the Exhibits section of the Sydney Registry and:

   a.are to inspect and photocopy the documents produced in answer to the subpoenas and redact from the photocopied documents any information that may identify the Wife’s address, the area in which she resides or the child’s school (“the redacted documents”). The redacted documents are to remain in the Exhibits section of the Court;

   b.the Wife’s legal representatives are granted photocopy access for the purposes only of producing one redacted version of the documents produced in answer to the subpeonas.

   c.the Wife’s legal representatives are granted photocopy access for the purposes only of producing one redacted version of the documents produced in answer to the subpeonas.

   d.The Wife’s legal representatives are to place the original documents produced in answer to the subpoena (“the unredacted documents”) in a separate sealed envelope clearly labelled with the file name and file number of the matter and marked “confidential –  not to be inspected.

   5.Leave is granted to the parties’ legal representatives to inspect only the redacted documents from 9 a.m. on Thursday, 24 October 2019.

   6.Any argument in relation to access to the unredacted documents for which a claim for legal professional privilege is made is adjourned to the First Day before the Trial Judge.

   7.I make no order as to costs.

   8.Notations:

   The Court notes the following:

   ·These subpoenas were issued by the Court on 29 August 2019 and the last day for production of the documents was 16 September 2019.

   ·I further note there is an Apprehended Domestic Violence orders for the Wife’s protection and that of the child and an ongoing JIRT investigation.

4. The other set of orders is as follows:

   1.On 29 August 2019 the Court issued subpoenas filed on behalf of the Applicant/Husband to various bank entities as set out below.

   2.This matter was listed before me today in chambers and I make the following orders, directions and notations:

   1.An objection has been lodged by the Respondent/Wife with respect to access or the terms of access (e.g. photocopy access) to the documents produced with respect to the subpoena issued to the Australian & New Zealand Banking Group Limited And the Commonwealth Bank of Australia.

   2.That objection is to be determined on the papers in Chambers in the absence of the parties

   3.The matter will be listed before me at 10.45am on 22 October 2019 in Court.

   4.The objector is to file and serve by 4 p.m. on 15 October 2019

   a.no more than one relevant affidavit (if any) ; and

   b.any written submissions on which the objector intends to rely.

   5.Any party pressing for access to the documents produced under subpoena or pressing for access on certain terms (e.g. photocopy access) is to file and serve by 4 p.m. on 21 October 2019

   a.no more than one relevant affidavit (if any) ; and

   b.any written submissions upon which that party intends to rely.

   6.Each affidavit and each submission filed pursuant to the preceding order shall be limited to 2 pages of typescript formatted using 12 point Times New Roman font and 1.5 line spacing that portion of any file document exceeding that limit may not be read.

5. By the first set of orders, the Registrar addressed objections in respect of documents produced by the Department of Human Services, the NSW Department of Education, E Centre, B Medical Centre, C Medical Centre and D School.  I take it that the husband’s review relates to the orders about the objections to inspection in respect of documents produced pursuant to those subpoenas.  That would follow because in the second set of orders which relate to subpoenas to two banks, provision is made for the parties to be further heard before a decision is made on that issue.  The lack of such a provision is part of the husband’s complaint. 

6. Here the fresh hearing relates to the issues before the Registrar when paragraphs 3, 4 and 5 were made.  Paragraph 3 is more by way of a notation than an order and I do not understand the utility of seeking to review it.  By the letter of 15 October 2019, the wife withdrew her objections to an order for inspection of documents produced pursuant to any of the identified subpoenas save for that addressed to E Centre.

7. As to the documents produced pursuant to the subpoena addressed to E Centre, the approach taken by the Registrar seems to be cautious and appropriate.  The Registrar noted that an Apprehended Domestic Violence Order has issued for the protection of the wife and child and there is an ongoing JIRT[1] investigation.  In those circumstances it is understandable that the Registrar would allow the wife’s solicitors the opportunity to redact documents that may allow the husband to identify the whereabouts of either the wife or the child.  Importantly, the orders under review do not dispose of the issue, leaving the ultimate question for the trial judge.  In considering the issue afresh I would make a similar order.  The review application in respect of the orders of 8 October 2019 insofar as they apply to documents produced pursuant to the subpoena addressed to E Centre, will fail. 

   [1] Joint Investigation Response Team.

8. Given that the remaining objections are now withdrawn, I will make an unrestricted order for inspection in respect of the subpoenas to the Department of Human Services, the NSW Department of Education, B Medical Centre, C Medical Centre and D School.

9. As to the mother’s objection in respect of the ANZ Bank and the Commonwealth Bank, which is referred to in the letter of 15 October 2019, documents produced by those banks were not subject of the orders under review and therefore that issue is not before me.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 December 2019.

Associate:

Date:  9 December 2019