Zemin & Kaba
[2024] FedCFamC1F 95
•27 February 2024
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 subpoenas for the trial of this matter, which is listed to commence on 11 March 2024 (next week). The respondent, although represented at the time of making the request (solicitor appointed in accordance with s 102NA of the Family Law Act 1975 (Cth)), has largely been self-represented and made the request to issue the subpoenas on his own behalf.
The respondent requires “permission” due to r 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which relevantly provides:
6.27 Limits on requests for subpoenas
(1) A self-represented party must not request the issue of a subpoena without the permission of the court.
(2) A party or an independent children’s lawyer must not request the issue of:
(a) a subpoena to give evidence; or
(b) a subpoena for production and to give evidence; or
(c) a subpoena for production for a final hearing; or
(d) a subpoena for production directed to another party to the proceeding;
without the permission of the court.
A test commonly referred to when determining subpoena issues is that of the metaphorical “fishing expedition”. A classic explanation of the idea of a fishing expedition is set out in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN 250, where Owen J, with whose judgment the other members of the Full Court agreed, said [at 254]:
‘A fishing expedition’ in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.
Whilst the metaphor of the “fishing expedition” is intriguing, the concept gives somewhat cryptic guidance. In Hatton & Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038, the Full Court of the Family Court surveyed a range of cases and concluded that the relevant requirement is that of apparent relevance to the issues in the proceedings. The relevance need not be direct: for example, it may be sufficient if documents “are capable of assisting in cross‑examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence” (see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [98], as cited with approval by Aldridge J in Clifton & Aspen [2023] FedCFamC1F 376).
In Alister v R (1984) 154 CLR 404 at 414, where Gibbs CJ identified that where it is uncertain what evidence the subpoena will produce, the test is whether it is “on the cards” that relevant evidence will be forthcoming. In Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536, Beazley JA (as her Honour then was, and with whom James and Kirby JJ agreed) explained that further elaboration of the phrase “on the cards” only invited confusion (at [80]). There is no reason that the test for production of documents would not also apply to subpoenas to give oral evidence.
In order to determine whether not to grant a request for a subpoena generally, the party must show that it is “on the cards” (se Alister) that the evidence sought will be relevant to an issue in the proceedings (see Hatton).
However, the Rules in this Court are more restrictive than the rules applicable in other courts. This appears to be for two reasons: first, there have been litigants in the past who have misused the right to request subpoenas and put many non-parties (often associates of former spouses) to unnecessary expense and inconvenience; and secondly, the Rules reflect the general expectation that evidence in family law proceedings be by affidavit and available to the other parties before trial. Thus, in addition to the two usual requirements (a legitimate forensic purpose and that it is “on the cards” that the evidence will be relevant to that forensic purpose) it is also relevant to consider whether there is an outline the evidence which it is “on the cards” that the witness will give and whether the evidence could reasonably be obtained on affidavit. Of course, there may be other reasons that a subpoena is oppressive or an abuse of process which will depend upon the facts of a particular case.
In summary the test, in the context of the rules of this court, requires consideration of the following:
(a)Identifying the issue or relevant forensic purpose of the evidence sought;
(b)Whether it is shown that it is “on the cards” that the witness will be able to provide evidence relevant to that forensic purpose;
(c)Whether the party seeking the subpoena has given an outline of the evidence it is said it is “on the cards” that the witness will give; and
(d)Whether the party seeking the subpoena has shown that it is not reasonable to expect that an affidavit from the witness could be obtained.
A further difficulty that arises in parenting cases results from the absence of the hearsay rule as a result of s 69ZT of the Family Law Act 1975 (Cth). In many cases parties file affidavits with extensive hearsay evidence which would not be admissible, but for s 69ZT of the Family Law Act. It seems that the respondent seeks to challenge this hearsay evidence by subpoenaing the relevant witnesses. Subpoenas are not generally an appropriate mechanism to resolve this difficulty. The appropriate course is to give notice to the applicant that the witnesses, whose evidence is given as hearsay in the applicant’s affidavit, are required for cross-examination at the hearing. If they are not produced for cross-examination, it will be a matter for the trial judge to determine whether to exercise the discretion under s 135 of the Evidence Act 1995 (Cth) to exclude the evidence on the basis that it would be unfairly prejudicial.
THE PROCEEDINGS
The proceedings before the Court in this case concern property settlement orders and parenting orders.
In accordance with trial directions made on 13 November 2023, each party was ordered to file and serve their trial affidavits 35 and 21 days prior to the trial (respectively), a joint chronology and balance sheet at least 10 business days before the trial, and a case outline by 25 February 2024. There are no case outlines filed as yet and it is difficult to identify the proposed trial affidavits (the directions only allowing one affidavit per party).
The applicant filed an affidavit on 15 February 2024, which appears to be a late filed trial affidavit. The respondent does not appear to have filed a trial affidavit. Leaving aside affidavits filed with respect to various Applications in the Case, the last affidavit filed by the respondent was an affidavit filed on 3 March 2021, although it could not be said to be substantive. The result is that there is little material filed for trial from which to determine the relevance or importance of the subpoenas that the respondent seeks to issue.
The respondent made brief written submissions to accompany his request for permission to issue the subpoenas. The applicant was given an opportunity to respond, however provided submissions that were largely unhelpful, and confusingly, set out in a different order to the submissions in support of the application. The respondent’s solicitor (who filed a Notice of Address for Service on 16 February 2024) indicated that the respondent did not wish to make any further submissions in reply.
The subpoenas
The first subpoena sought to be issued is directed to Officer B. The respondent says that the subpoena is sought:
To provide medical evidence regarding the assault [in late] 2019, and shed light on the delayed statement from the applicant after a four-month period. This evidence is essential to demonstrate that the domestic violence case was potentially orchestrated to gain an advantage in family court.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 1)
The applicant submitted:
[In late] 2022, the issuing party received a sentence of [a period] in goal with a non‑parole period […] after being found guilty of a number of criminal offences. The issuing party filed an appeal and remained in custody until the appeal was heard [in early] 2023. He remains convicted of the offences however his sentence has been substituted with a Community Corrections Order […] and the respondent was released from custody. The other parties to these proceedings, namely the applicant and the Independent Children’s lawyer, have issued subpoenas to the NSW police force and the material produced by the said service is available for viewing by the parties, consequently, the applicant is of the view that the material requested in the above subpoenas has no relevance to these proceedings and there is no utility in the attendance of the said witnesses before this court. The applicant is of the view that the respondent has not demonstrated a legitimate forensic purpose for the issue of the instruments, consequently, the applicant objects to the subpoenas being issued.
(Applicant’s Written Submissions, paragraph 1.8.i))
Evidence of the conviction is admissible pursuant to s 91(2) of the Evidence Act in the property proceedings as an exception to the hearsay rule. In parenting proceedings the hearsay rule would not apply: s 69ZT of the Family Law Act. It is unclear from the respondent’s affidavits which incident the subpoena addresses, nor its current relevance. The applicant’s submissions are helpful only to the extent that they point out that the NSW Police files have been subpoenaed already. The respondent could have reviewed the subpoenaed material and identified the relevance to the police officer’s oral evidence (if any). The subpoena refers to the officer’s work in requesting witnesses to attend court and attempts to interview witnesses, however it is difficult to see how this goes to an issue in the present proceedings. On the material presently before the Court, it is not possible to identify the relevant issue that any oral evidence of the police officer would go to in the proceedings. I therefore refuse grant permission to issue this subpoena.
The second subpoena sought to be issued is directed to Officer C. The respondent says that the subpoena is sought because:
Documentation and evidence are required to substantiate claims made by the applicant regarding the misuse of my son’s phone for sharing inappropriate photographs. [Officer C’s] inability to produce evidence to support charges, along with the applicant’s failure to report violence in [mid] 2019, is crucial in understanding the dynamics of the case.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 2)
The applicant’s submissions are the same as those for Officer B above at [14]. The NSW Police files have been subpoenaed and are available for inspection. The respondent has not identified the relevance of any testimony of the officer in the proceedings, as it does not appear that the officer was a witness to the relevant events. On the material presently before the Court, it is not possible to identify the relevance of any evidence of the police officer to the proceedings. I therefore refuse grant permission to issue this subpoena.
The third subpoena the respondent seeks to issue is directed to Suburb D Police, seeking that they produce documents held by the police, explained by the respondent as:
Fingerprints and evidence to confirm that the applicant was seeking a relationship during a court-mandated no-contact period. This information was not presented during the domestic violence matter.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 3)
The applicant’s submissions are the same as those for Officer B above at [14]. The NSW Police files have been produced in answer to the subpoena already issued to the NSW Police. The respondent gives no evidence of having inspected the subpoenaed documents, nor any reason from which to infer that it is “on the cards” that the police have more relevant documents. I therefore refuse to grant permission to issue this subpoena.
The fourth subpoena is directed to Ms E to attend Court and give evidence as, on the respondent’s case:
Evidence is needed to address concerns about non-disclosure and potential bias, as she allegedly influenced my son not to see me and obstructed my access to my daughter.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 4)
The applicant submits:
[Ms E] is neither a party nor a witness to the proceedings. She has not provided evidence by way of an affidavit to this court that may require cross examination. The applicant is of the view that the respondent has not demonstrated a legitimate forensic purpose for the issue of the instrument, consequently, the applicant objects to the subpoena being issued.
(Applicant’s Written Submissions, paragraph 1.6.i))
Cryptically, neither party has identified the role of Ms E in the parties’ lives. Ms E appears to be the Director of the business at which the applicant was working in 2020, who provided a letter addressed to “To whom it may concern” (which appears at Annexure F to the applicant’s affidavit filed 15 February 2024), advising that the applicant was on leave without pay from early 2020 to mid-2020 (applicant’s affidavit filed 15 February 2024, paragraph 73). The letter (whilst admissible due to s 69ZT of the Family Law Act) is of practically no weight, given that it is documentary hearsay, and not addressed to the Court. There is nothing that the respondent has pointed to in the affidavit filed by the applicant for trial, nor his previous affidavits, that challenges the claim that the applicant took leave without pay in this period. If she is not produced for cross-examination, it will be a matter for the trial judge to determine whether to exercise the discretion under s 135 of the Evidence Act to exclude the evidence on the basis that it would be unfairly prejudicial. There are no allegations concerning conduct of Ms E. There is no basis to conclude that the testimony of Ms E may be relevant to issues the proceedings. I therefore refuse to grant permission to issue this subpoena.
The fifth witness sought to be subpoenaed to give evidence is, Mr F. The respondent says that he is a relevant witness as:
The court needs to hear directly from my son to validate claims of domestic violence.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 5)
The applicant’s submissions are merely:
[Mr F] has not filed an affidavit providing evidence that may require cross examination. Should [Mr F] file an affidavit in these proceedings, the applicant has no intention to cross examine him. Taking into account that the respondent cannot cross examine his own witness, the applicant struggles to see the relevance of this subpoena with these proceedings and objects to the subpoena being issued.
(Applicant’s Written Submissions, paragraph 1.9.i))
The applicant’s submission is entirely unhelpful as it may be that Mr F would refuse to swear an affidavit and yet give honest evidence if subpoenaed. The fact that the respondent could not cross-examine him (unless he obtained leave) does not mean that the evidence of Mr F will necessarily be adverse to the respondent. Mr F was born in 2005, and thus is no longer a child. The applicant recounts many events concerning Mr F as a child in the household.
There is no submission as to whether Mr F refused to provide an affidavit. Given that Mr F is the son of the parties, and only barely over 18 years of age, it is not appropriate for him to simply receive a subpoena from a process server. In the absence of evidence that the respondent has requested Mr F to provide an affidavit, that Mr F has refused, and a clear statement of the evidence it is expected that Mr F would give, it is not appropriate to issue a subpoena. I therefore refuse to grant permission to issue this subpoena.
The sixth witness the respondent seeks to subpoena is Ms G as:
No statement has been provided, and crucial details about the alleged assault have not been disclosed.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 6)
The submissions of the applicant are entirely unhelpful, saying:
[Ms G] is neither a party nor a witness to the proceedings. She has not provided evidence by way of an affidavit to the court that may require cross examination. The request to [Ms G] for the provision of financial documents has no relevance to these proceedings. The applicant is of the view that the material requested in this subpoena by the issuing party constitutes a fishing expedition, and that the respondent has not demonstrated a legitimate forensic purpose to justify the issue of the instrument, consequently, the applicant objects to the subpoena being issued.
(Applicant’s Written Submissions, paragraph 1.4.i))
There are references to Ms G that appear in the applicant’s trial affidavit. At paragraph 4 of the applicant’s affidavit filed 15 February 2024, the applicant identifies Ms G as her mother, and says that she was living with her mother and sister in Suburb H in 2004. She is also mentioned in paragraph 161 (which appears to relate to Annexure “AJ”, although the annexure is not mentioned) where Ms G entered into a loan agreement, lending the respondent $10,000 at 7 per cent interest, which the applicant says was never repaid. Clearly her financial documents have relevance to the extent that they show any advance or repayment. However, it is not clear when, if ever, that the respondent says that Ms G was repaid. In the absence of an allegation of repayment to a bank account, I am not persuaded that he should be able to request documents concerning her financial affairs save for any record evidencing the advance of alleged loan monies to him.
The applicant’s affidavit shows that Ms G took the applicant to the doctors after she says she was hit by the respondent (paragraph 49), hearsay evidence of Ms G is set out by the applicant in paragraph 64, and she is mentioned as a victim of violence by the respondent in paragraph 76 (described as “[mother]”). The respondent has generally denied acts of violence. If she is not produced for cross-examination, it will be a matter for the trial judge to determine whether to exercise the discretion under s 135 of the Evidence Act to exclude the evidence on the basis that it would be unfairly prejudicial.
Whilst I am persuaded that a subpoena to Ms G to produce bank documents showing the source of the loan and any receipt of repayment would be permissible, the subpoena as sought is 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.
The seventh witness is Mr J, the applicant’s father, who the respondent seeks to subpoena on the basis that:
Information is needed regarding his absence during the alleged assault and subsequent court proceedings.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 7)
The applicant’s submission is in substantially identical terms to that with respect to Ms G, and similarly unhelpful.
In the applicant’s affidavit filed 15 February 2024, the applicant says her father witnessed family violence (paragraphs 8, 31 and 49). I am persuaded that his oral evidence goes to central issues in the case. If he is not produced for cross-examination, it will be a matter for the trial judge to determine whether to exercise the discretion under s 135 of the Evidence Act to exclude the evidence on the basis that it would be unfairly prejudicial. The subpoena to Mr J requires him to produce bank documents, employment and business and tax documents. The subpoena as sought is far too wide. I therefore refuse to grant permission to issue this subpoena.
The eighth subpoena is directed to Ms K as the respondent says:
Evidence is required to examine potential biases in the treatment of school-related matters involving the children.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 8)
The applicant’s submissions state:
[Ms K] is neither a party nor a witness to the proceedings. She has not provided evidence by way of an affidavit to this court that may require cross examination. The applicant is of the view that the respondent has not demonstrated a legitimate forensic purpose for the issue of the instrument, consequently, the applicant objects to the subpoena being issued.
(Applicant’s Written Submissions, paragraph 1.7.i))
I am unable to identify what contact Ms K has had with the parties or the children, although the respondent’s submissions lead to an inference that she has some role in the school the children attend. On the face of the subpoena she is described as “Senior Child Practitioners – [L Program]”. There is no basis to conclude that it is “on the cards” that any testimony of Ms K may be relevant to issues the proceedings. I therefore refuse to grant permission to issue this subpoena.
The nineth subpoena is directed to Ms M and said to be a:
Subpoena to clarify the nature and purpose of the $100k payment to the applicant's sister and its relevance to family law proceedings.
(Respondent’s letter seeking leave to issue subpoenas, paragraph 9)
The applicant submits:
[Ms M] is neither a party nor a witness to the proceedings. She has not provided evidence by way of an affidavit to the court that may require cross examination. The request for provision of [Ms M’s] financial documents has no relevance to these proceedings. The applicant is of the view that the material requested to be produced in this subpoena by the issuing party constitutes a fishing expedition. Furthermore, the applicant is of the view that the respondent has not demonstrated a legitimate forensic purpose for the issue of the instrument, consequently, the applicant objects to the subpoena being issued.
(Applicant’s Written Submissions, paragraph 1.3.i))
What the applicant omits is that Ms M is her sister. In her affidavit filed 15 February 2024, the applicant says that Ms M heard her cry out in pain when struck by the respondent in 2006 (paragraph 10), that she stayed with her sister when leaving the home (paragraphs 18 and 25), that her sister drove her home when she discovered nails in the car tyres (paragraph 29). At paragraph 94 of her affidavit, and following, the applicant sets out Ms M’s interactions with the respondent about contact visits, including where she sets out what she says occurred between her sister and the respondent in text messages (paragraph 102 and annexure “P” of her affidavit). If she is not produced for cross-examination, it will be a matter for the trial judge to determine whether to exercise the discretion under s 135 of the Evidence Act to exclude the evidence on the basis that it would be unfairly prejudicial.
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.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 27 February 2024
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