WATERS & MASSANI

[2019] FamCA 117

FAMILY COURT OF AUSTRALIA

WATERS & MASSANI [2019] FamCA 117

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Where failure to comply – Where application for warrant to issue – Warrant to issue.

Family Law Act 1975 (Cth)

APPLICANT: Ms Waters

RESPONDENT: Mr Massani

FILE NUMBER: PAC 4612 of 2017

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 8 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cahill of Meehans Solicitors

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders Made on 8 February 2019

1. That pursuant to part 21.16 of the Family Court Rules 2004, a Warrant issue for the arrest of Mr C to bring him before this Court.

2. That members of the Australian Federal Police, New South Wales Police and the Marshall or any other person appointed by the Court are authorised to proceed to enforce the Warrant.

3. That the Warrant be in force for a period of 12 months from this date.

4. That upon the arrest of Mr C, he be held in custody until he can be brought before this Court or another Court having jurisdiction under the Family Law Act 1975.

5. That the solicitor for the wife shall forward to Mr C by ordinary pre‑paid post a letter informing him of the orders made today and enclosing a sealed copy of the orders made today informing Mr C that he is at liberty by application to the Registry to have these proceedings re-listed on short notice to facilitate his appearance before the Court prior to the Warrant being executed if applicable.

6. That leave is granted to Mr C to make an application to the Registry for these proceedings to be listed on short notice to facilitate his attendance before the Court prior to the execution of the Warrant if applicable.

7. That the wife’s costs of and incidental of this subpoena is reserved.

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 Waters & Massani 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 PARRAMATTA

FILE NUMBER: PAC 4612 of 2017

Ms Waters

Applicant

And

Mr Massani

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In these proceedings as between the applicant husband and respondent wife relating to property adjustment, a Subpoena for Production of documents in relation to various transactions relevant to the issues for determination in these proceedings was issued by the Registry on 10 October 2018.

2. The subpoena was directed to the Proper Officer, B Pty Ltd seeking copies of documents in the possession or control of that company relating to various transactions asserted by the wife as between the husband in these proceedings and that company.

3. The Subpoena for Production of documents was served, as attested by the solicitor for the wife in his affidavit sworn 6 December 2018, by way of the subpoena being forwarded by ordinary prepaid post to the registered office of B Pty Ltd on 15 October 2018.

4. The ASIC search in relation to B Pty Ltd reveals that the sole director of that company is a Mr C, having a residential addressed at M Street, Suburb P.

5. Accompanying the subpoena for production forwarded by ordinary prepaid post was cheque payable to the company by way of conduct money in the sum of $25.00.

6. Subsequent inquiries by the solicitor for the wife revealed that by late October 2018, the cheque for conduct money had not been presented.

7. On 16 November 2018, the solicitor received a delivery confirmation from Australia Post confirming receipt of the correspondence enclosing the subpoena.

8. It is common ground that no documents have been produced in response to the Subpoena for Production, nor has there been any objection to the subpoena lodged by the company or its proper officer. 

9. Subsequently, these proceedings came before the Court on 22 January 2019 and an application was made on behalf of the wife for the subpoena to be enforced by a warrant addressed to the Proper Officer of the company, Mr C to be brought before this Court to be dealt with for his non-compliance with the subpoena. 

10. On 22 January 2019 orders were made, inter alia, as follows:

    (1)The respondent, Mr C, be in attendance in person on the adjourned date, and that in default of his appearance, notwithstanding that he may be legally represented on that date, a warrant shall issue for his arrest to procure his attendance before the Court,

    (2)A sealed copy of these orders be personally served on Mr C by no later than Thursday, 31 January 2019,

    (3)Proceedings were adjourned to 9.30 am, Friday, 8 February 2019.

11. Subsequently, an affidavit of service has been sworn by Mr G, licenced process server, who attests that on 31 January 2019 at about 6.35 pm, he personally served Mr C with a sealed copy of the orders made 22 January 2019 and an accompanying letter addressed to him from the wife’s solicitors, dated 23 January 2019.  Documents were served by handing those documents personally to Mr C at D Street, Suburb E in the State of New South Wales. 

12. At the time of service, the process server said to the recipient of the documents, “Are you [Mr C], the person referred to in these documents?”  The person served replied, “Yes, I am”.  With that, the documents were handed to the person served, and an acknowledgment of service was signed by Mr C.  That acknowledgment of service is attached to the affidavit of personal service, filed by electronic means in this registry on 7 February 2019.

13. Rule 15.36 of the Family Law Rules 2004 deals with non-compliance with a subpoena.  It provides that, if:

    a)a named person does not comply with a subpoena; and

    b)the Court is satisfied that the named person was served with the subpoena and given conduct money;

    the Court may issue a warrant for the named person’s arrest and order the person to pay any costs caused by the non-compliance. 

14. The Court is satisfied that there has been no compliance with Mr C, being the Director (Proper Officer) of B Pty Ltd, and not withstanding he be given the opportunity by reason of the adjournment of the enforcement application for the subpoena, and served once again in his personal capacity with orders made on 22 January 2019, clearly indicating the consequences of his non-appearance, he has failed to appear and has failed to comply with the subpoena.

15. Accordingly, a warrant will issue for the arrest of Mr C to facilitate him being brought before the Court in relation to his non-compliance with subpoena.

16. Orders will be made accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 February 2019.

Associate: 

Date:  8 February 2019