Zemin & Kaba - [2024] FedCFamC1F 95

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zemin & Kaba [2024] FedCFamC1F 95

File number(s): PAC 571 of 2020

Judgment of: RIETHMULLER J

Date of judgment: 27 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas to give evidence – Subpoenas to produce documents – Leave to issue subpoenas – Where the respondent seeks permission to issue nine subpoenas, two to produce and seven to attend – Relevance – Test for issuing subpoenas – Fishing expedition, apparent relevance or “on the cards” – Additional considerations in family law matters – Effect of other party relying upon hearsay account of witnesses proposed to be subpoenaed – Where there is inadequate material before the Court – Where subpoenas sought are too broad – Permission refused

Legislation:
Evidence Act 1995 (Cth) ss 91, 135

Family Law Act 1975 (Cth) s 69ZT

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.27

Cases cited:
Alister v R (1984) 154 CLR 404; [1984] HCA 85

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN 250

Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65

Clifton & Aspen [2023] FedCFamC1F 376

Hatton & Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038; [2000] FamCA 892

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Division: Division 1 First Instance

Number of paragraphs: 45

Date of last submission/s: 23 February 2024

Date of hearing: Determined on the papers

Place: Parramatta

Solicitor for the Applicant: Sui Juris Lawyers

Solicitor for the Respondent: Solve Legal

Solicitor for the Independent Children’s Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ZEMIN

Applicant

AND:
MR KABA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

27 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The respondent’s request made on 18 February 2024 for permission to issue subpoenas be refused.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:

The respondent seeks leave to issue nine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zemin & Kaba

Details

AGLC: Zemin & Kaba [2024] FedCFamC1F 95
Case: [2024] FedCFamC1F 95
Decision Date: 27 February 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a request by Mr Kaba for permission to issue nine subpoenas, two to produce documents and seven to attend for examination, in the matter of Zemin & Kaba. The respondent sought the subpoenas to obtain evidence relevant to the family law proceedings between the parties. The Court was tasked with determining whether the respondent’s request for the issuance of these subpoenas was justified and whether the evidence sought was relevant and necessary to the proceedings.

The legal issues before the Court included whether the respondent’s subpoenas were relevant to the matters in dispute and whether the evidence sought was necessary to resolve the issues between the parties. Additionally, the Court considered whether the subpoenas were overly broad or constituted a fishing expedition, and if the evidence proposed to be obtained through the subpoenas was adequately supported by material before the Court.

In refusing permission for the issuance of the subpoenas, the Court found that the respondent had not demonstrated that the evidence sought was relevant or necessary to the proceedings. The Court noted that some of the requested documents, such as tax returns and work histories, were overly broad and not directly related to the issues in the case. Furthermore, the Court found that the application was made too close to the minimum time for serving the subpoenas, which was unreasonable given the workload of the Court. The Court also highlighted that the reliance on hearsay evidence did not, in itself, justify the issuance of subpoenas. Consequently, the Court concluded that the respondent’s request for permission to issue the subpoenas was refused.

The Court made an order refusing the respondent’s request for permission to issue the subpoenas. The order was made on 27 February 2024, and the form of the order is subject to review for minor typographical or grammatical errors or to record a variation to the order. The Court’s decision underscores the importance of demonstrating the relevance and necessity of evidence sought through subpoenas in family law proceedings, and the need for applications to be made in a timely manner.

Orders

Orders of the court

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ZEMIN

Applicant

AND:

MR KABA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

27 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The respondent’s request made on 18 February 2024 for permission to issue subpoenas be refused.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The subpoena as sought is also far too wide, for example, seeking tax returns and work histories since she migrated to Australia. I therefore refuse to grant permission to issue this subpoena.CONCLUSION I therefore decline to grant permission for the issue of these subpoenas. However, there are two further practical matters that arise in the context of this request which warrant some brief mention. Whilst a number of the witnesses’ potential evidence is set out as hearsay in the applicant’s affidavit, for the reasons set out above this is not, of itself, a basis for the issue of a subpoena. However, the applicant should be taken to be on notice that the witnesses are required and if they are not produced the respondent may make application to exclude parts of the applicant’s affidavit pursuant to s 135 of the Evidence Act. Whilst such an application can be made, it is a discretionary decision to be exercised by the trial judge. The respondent sought permission only shortly before the minimum time for serving the subpoenas. It was unreasonable to expect that permission would be determined in less than a week having regard to the pressure of work on the Court. Ordinarily such permission ought to be sought at least a week before the minimum time for service, and if not sought in a timely way, an explanation provided as to why urgent consideration is required. If permission is not sought at least a week before the minimum time for service, and that period has expired before the request can be considered by a judge or registrar permission may well be refused as a result of the expiration of the time for service.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 571 of 2020
Judgment of:	RIETHMULLER J
Date of judgment:	27 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas to give evidence – Subpoenas to produce documents – Leave to issue subpoenas – Where the respondent seeks permission to issue nine subpoenas, two to produce and seven to attend – Relevance – Test for issuing subpoenas – Fishing expedition, apparent relevance or “on the cards” – Additional considerations in family law matters – Effect of other party relying upon hearsay account of witnesses proposed to be subpoenaed – Where there is inadequate material before the Court – Where subpoenas sought are too broad – Permission refused
Legislation:	Evidence Act 1995 (Cth) ss 91, 135 Family Law Act 1975 (Cth) s 69ZT Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.27
Cases cited:	Alister v R (1984) 154 CLR 404; [1984] HCA 85 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN 250 Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Clifton & Aspen [2023] FedCFamC1F 376 Hatton & Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038; [2000] FamCA 892 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Division:	Division 1 First Instance
Number of paragraphs:	45
Date of last submission/s:	23 February 2024
Date of hearing:	Determined on the papers
Place:	Parramatta
Solicitor for the Applicant:	Sui Juris Lawyers
Solicitor for the Respondent:	Solve Legal
Solicitor for the Independent Children’s Lawyer:	Sarah Bevan Family Lawyers

PAC 571 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ZEMIN Applicant
AND:	MR KABA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	27 FEBRUARY 2024