Objection to subpoena – Lynch and Lynch [2022] FCWA 110

Note: The information presented in this case study is derived from the legal case “LYNCH and LYNCH [2022] FCWA 110.” Please refer to the original text for a comprehensive understanding of the case. This publication is intended for case study and informational purposes only.

Original Text Source: [LYNCH and LYNCH [2022] FCWA 110

“Case(s) referred to in decision(s):

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Darley & Darley [2020] FamCAFC 4
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC

93-038
Kelton & Brady and Anor (2017) FLC 93-799
Mandic v Phillis (2005) 225 ALR 760
Martin & Martin and Anor (No 2) [2014] FamCA 232
National Employers’ Mutual General Insurance Association Ltd v Waind & Hill

(1978) 1 NSWLR 372
Peters & Giannopoulos and Ors [2017] FamCA 663
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 Vissell & Vissell (2021) FLC 94-020

[Mr Lynch], the husband, and [Ms Lynch], the wife, are unable to agree on orders by way of alteration of property interests following the breakdown of their marriage. The property proceedings are listed for trial in June 2022, with an estimated hearing time of five days.

The husband has issued a number of subpoena for the production of documents to [Bank A], [Mr C] at [Financial Institution A], [Bank B], [Accountant A], [Bank C], and [Ms B], the wife’s sister.

The husband, the wife, and Ms B, each filed objections to the affidavit evidence. I indicated to the parties I would not attach any weight to evidence which was inadmissible. Given these are interim proceedings, I am unable to make any findings of fact where the evidence is in dispute. As will become apparent, there are significant factual issues in dispute between the parties, including, amongst other matters, the date of separation, the property available for division, and the respective contributions of each party.

WHAT ARE THE FACTS?

Before considering the objections, it is helpful to put these matters into context.

The husband and wife married in [late] 1995. They have two children, both of whom are now adults. In 2018, the parties separated. They have since divorced.

The wife is 61 years of age and is a full-time [redacted]. The husband is 65 years of age and is a [redacted].

In [early] 2019, the wife commenced proceedings, seeking orders in relation to an alteration of property interests, spousal maintenance, and adult child-maintenance.

Financial matters have been the subject of fierce debate, and there is a raft of matters in dispute. By way of illustration:

1. (a)  Each party accuses the other of failing to discharge their duty to provide full and frank disclosure in a timely manner.

2. (b)  The wife’s case is the parties have net property and superannuation entitlements to the value of $6,100,000. She seeks a division of 72.5% of the property in her favour, or a division of 70% in her favour, on the basis the husband pays maintenance of $909 for a period of three years. It does not appear the wife is continuing to seek orders by way of adult child-maintenance.

3. (c)  The husband’s case is the parties have net property and superannuation entitlements to the value of $7,200,000. He seeks an equal division of the parties’ net property. He opposes any order for spousal maintenance and adult child maintenance.

Ms B has been personally served with the husband’s subpoena to her, and to Bank B, as evidenced by the affidavit of service of Ms D.3 Ms B has not been personally served with the subpoena to Bank C, Accountant A, and Financial Institution A.4

The wife’s solicitors provided Ms B’s solicitors with the husband’s subpoena to Bank C and Accountant A on or around [late] March 2022. Ms B’s solicitors were not provided with the subpoena to Financial Institution A, which the husband’s solicitor handed to Ms B’s solicitor on the day of the hearing.

It is conceded that:

1. (a)  Ms B is an interested party in the subpoena to Bank C, Accountant A, and Financial Institution A5 as Ms B had a sufficient interest in each of the subpoena.

2. (b)  Ms B has not been served in accordance with the Family Court Rules 2021 (WA) (“the Rules”).

4. (d)  During the marriage, the wife received a number of inheritances, and financial gifts from her family. She says her inheritances, and financial gifts, amount to some $5,400,000, her financial contributions significantly exceed those of the husband, which requires recognition. The husband deposes he was involved and assisted the wife’s uncle, [Mr E], and the wife’s father, [MrF], during their lifetimes, including managing their respective share portfolios. Ultimately, the wife was the beneficiary of her uncle and father’s property, through her inheritances. The husband says the parties decided to spend the entirety of his income on their lifestyle, and they enjoyed a very comfortable standard of living, funded from his income. The parties also operated on an overdraft, and made these decisions, because of the expectation of the wife’s inheritances. It is his case it would be inequitable and unjust for the Court to assess the wife’s contributions as greater than his contributions, in the circumstances.

5. (e)  There is some complexity to the parties’ financial circumstances. They own a number of properties, purchased both during the marriage and since separation. They have an interest in a number of entities, including a self-managed superannuation fund, a family trust, and other corporate entities.

PRELIMINARY ISSUE – SERVICE

Affidavit of Service of Ms D sworn 21 February 2022, and accepted for filing on 12 May 2022. Ms B’s affidavit filed 12 May 2022, paragraphs 3–4.

As defined in r 245 of the Family Court Rules 2021 (WA).

Division 3 of Part 15 of the Rules deals with subpoena.

Rule 249 of the Rules requires the issuing party for a subpoena to serve a copy of the subpoena on each party, and each interested party,6 by way of ordinary service, or by a manner of service which is agreed between the issuing party and the person to be served.7 Unless otherwise directed by the Court, a document required to be served pursuant to r 249(3) must be served at least 10 days before the day on which production in accordance with the subpoena is required.

While the husband’s counsel did not refer to the Rules, I take it he relied on r 12, which allows the Court to dispense with the Rules, at any time, before or after the occasion for compliance arises.8

In considering whether to make an order under r 12, the Court may consider the main purpose of the Rules, the administration of justice, whether the application has been promptly made, whether non-compliance was intentional, and the effect that granting the relief would have on each party and parties to other cases in the Court.9

Rule 5 of the Rules provides:

The main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

The husband’s counsel made an oral application seeking to dispense with the service requirements.

Ms B’s counsel submitted the husband’s failure to serve the subpoena was fatal, and the subpoena should be discharged. He noted Ms B had raised the husband’s failure to serve her, in her affidavit filed 31 March 2022. Despite the husband being on notice, and legally represented, no efforts had been made to serve her since that time. He submitted Ms B had been denied procedural fairness and it was incumbent on the husband to comply with the Rules.

Rule 6 of the Rules provides the Court must apply the Rules to promote the main purpose, and to actively manage each case, which includes:

1. (a)  Ensuring that parties and their lawyers comply with these rules, any practice directions and procedural orders;10

2. (b)  Considering whether the likely benefits of taking a step justify the cost of that step;11 and

3. (c)  Dealing with as many aspects of the case as possible on the same occasion.12

Rule 7 of the Rules provides:

To achieve the main purpose, the court must apply these rules in a way that ––

1. (a)  deals with each case fairly, justly and in a timely manner; and

2. (b)  encourages parties to negotiate a settlement, if appropriate; and

3. (c)  is proportionate to the issues in a case and their complexity, and the likely costs of the case; and

4. (d)  promotes the saving of costs; and

5. (e)  gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and

6. (f)  Promotes family relationships after resolution of the dispute, where possible.

Each party, and their lawyers, have a responsibility to promote and achieve the main purpose.1310 Family Court Rules 2021 (WA) r 6(f). 11 Family Court Rules 2021 (WA) r 6(g). 12 Family Court Rules 2021 (WA) r 6(h). 13 Family Court Rules 2021 (WA) r 8.

The husband has failed to comply with the Rules. He has not arranged personal service of the subpoena to Bank C, Accountant A and Financial Institution A, upon Ms B. The husband failed to take any steps to serve Ms B, or provide copies of the subpoena to her solicitors, where she was clearly an interested party. It cannot be suggested the husband’s application to dispense with the requirement for service was made promptly. The husband proffered no explanation for his failure to serve Ms B, even after Ms B drew the fact she had not been served, to his attention. The complaints raised by Ms B in this respect, were fairly made.

Ms B has been in receipt of the subpoena to Bank C and Accountant A since late March 2022. While her solicitors were not provided with the subpoena to Financial Institution A, Ms B was aware of the subpoena, from Mr C, her financialadvisor. [In late] February 2022, Mr C filed a Notice of Objection. Mr C confirmed, in correspondence with the husband’s solicitors, his objection was based on Ms B’s instructions, amongst other reasons. It is clear Ms B was aware of the subpoena to Financial Institution A, and had access to the subpoena, despite the husband’s failure to serve her.

I am not satisfied Ms B has been deprived procedural fairness, or an opportunity to address the subpoena. That finding is corroborated by the submissions made on her behalf, which comfortably address the subpoena, and the balance of subpoena over which she objects.

On balance, I am prepared to dispense with the Rules, taking into account the main purpose of the Rules, and the effect that dispensing with the Rules will have on each party, and Ms B. I do so because I am not satisfied there is any prejudice to Ms B, and I am satisfied such an approach will reduce the costs for Ms B, and the other parties.

WHAT ARE THE RELEVANT SUBPOENA?

30 It is appropriate to turn to the subpoena issued by the husband, and the scope of documents sought.

Mr C, Financial Institution A

31 [In late] January 2022, the subpoena to Mr C was issued at the request of the husband. The subpoena sought the following documents:

Item Number

1. 2. 3. 4. 5. 6.

Accountant A

Date

1 January 2018 to date

1 January 2018 to date

1 January 2018 to date

1 January 2018 to date

1 January 2018 to date

1 January 2018 to date

Description

All accounts held/managed on behalf of [Ms B] of [redacted], date of birth [redacted].

All portfolio valuations for [Ms B].

Transaction history for all accounts held/managed on behalf of [Ms B].

All cash book details for all accounts held/managed on behalf of [Ms B].

All documents, records and the like detailing any payments made by [Ms Lynch] to [Ms B].

All documents, records and the like detailing any payments made by [Ms B] to [Ms Lynch].

Item Date Description Number

Ms B

[In] February 2022, the subpoena to Ms B was issued at the request of the husband. The subpoena sought the following documents:

Item Date Description Number

1 January 2018 to Copies of all bank statements for any bank account in the name of date [Company A] or [Company B].

The second subpoena (“Second Bank B subpoena”) sought from [redacted] September 2020 to date, “all documents evidencing the payer/transferor/account name/source from which the amount of $700 is paid into BSB [redacted] Account [redacted] in the name of [Mr A]”.

Bank C

[In] February 2022, the amended subpoena to Bank C was issued at the request of the husband. The amended subpoena sought the following documents:

1. 1 January 2018 to date

2. 1 January 2018 to date

3. 1 January 2018 to date

4. 1 January 2018 to date

5. 1 January 2018 to date

6. 1 January 2018 to date

Description

All statements for accounts in the name of [Ms B] of [redacted], date of birth [redacted].

All statements for superannuation accounts held in the name of [Ms B].

Transaction history for all accounts held/managed on behalf of [Ms B].

All cash book details for all accounts held/managed on behalf of [Ms B].

All documents, records and the like detailing any payments made by [Ms Lynch] to [Ms B].

All documents, records and the like detailing any payments made by [Ms B] to [Ms Lynch].

Mr A filed a Notice of Objection [in late] February 2022 to the Second Bank B subpoena and the subpoena to Bank A, on the basis of relevance and fishing.

Ms B filed two Notice of Objections, [in late] February 2022 and [mid] March 2022. I have proceeded on the basis Ms B objects to the subpoena to her, to Accountant A, to Financial Institution A, the First Bank B subpoena, and Bank C. Ms B stated in the Notices “[m]y financial affairs are totally irrelevant to my sisters (sic) divorce. I consider this stalking”,14 and “relevance – mere speculation and right to privacy. Collateral purpose – abusive process”.15 From the submissions made, Ms B’s objections are threefold: relevance, privacy, and ‘stalking’.

Mr C has filed a Notice of Objection [in late] February 2022, on the basis items 1 to 4 are too broad and irrelevant, and there are no such records in existence in response to items 5 and 6.

As noted, the wife’s objections have been withdrawn.

WHAT IS THE LAW?

The relevant legal principles may be briefly stated.

The party seeking to uphold a subpoena issued at its request, bears the onus to demonstrate there is a legitimate forensic purpose, in seeking production of the documents identified in it.

A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to factual issues at trial and is usually established by demonstrating the documents sought have an apparent relevance to the issues in the substantive proceedings.

Filed 23 February 2022.

Filed 15 March 2022.
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38.
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038.

“Apparent relevance” refers to adjectival, as distinct from substantive relevance,18 often expressed as a consideration of whether the documentation called for could possibly throw light on the issue in the substantive proceedings.19

A subpoena cannot be used for the purposes of “fishing” or conducting a “fishing expedition”.20 Justice Cronin in Martin & Martin and Anor (No 2) [2014] FamCA 232 at [28], described fishing in the following terms:

‘Fishing’ can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one.

For a subpoena to be validly issued, there must be some connection between the documents and the issues before the court.21

There is no question that subpoena to produce documents may be addressed to strangers to the litigation. However, their interests are subject to protections which have been well-established. The Full Court of the Family Court (as it was then known) comprising of Ainslie-Wallace, Watts and Tree JJ, in Vissell & Vissell (2021) FLC 94-020, recently considered the question of subpoena addressed to strangers to the litigation, and wrote:

As long ago as 1938 in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Small’s case”), Jordan CJ said at 573:

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced … It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery …

His Honour continued and, albeit in the context of discussing subpoenas directed to the parties to the cause, said at 575:

National Employers’ Mutual General Insurance Association Ltd v Waind & Hill (1978) 1 NSWLR 372.

Mandic v Phillis (2005) 225 ALR 760, [36].
Darley & Darley [2020] FamCAFC 4 (Kent J).
Darley & Darley [2020] FamCAFC 4 (Kent J, sitting as a single judge of the Full Court of the Family Court of Australia (as it then was)).

So too

Australia & Ors (2000) FLC 93-038, the Full Court there rejected the submission that relevance, per se, did not form a basis for challenging a subpoena but rather recourse must be had two concepts of oppression or abuse of process. The Full Court at [49] concluded that “lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”.

Relevance in the context of subpoenas is less stringent than in the context of the admissibility of evidence. The objective must be to assist the parties and the court in determination of the issues in dispute. The test for relevance has been considered in a number of cases.

1. (a)  In Peters & Giannopoulos and Ors [2017] FamCA 663, Berman J said at [42]:

   The test for relevance can be summarised as whether the documents sought “may” have a connection to the “main issue in the case”. Accordingly, where the wife seeks documents in relation to the trusts, she must establish that the production of those documents “could” better inform the Court of the husband’s financial position for the purpose of achieving a s 79 division of property.

2. (b)  In Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 McClelland J (as his Honour then was) held at [38]:

   In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an ‘apparent relevance’ to the issues in the proceedings. It must be more than ‘an outside chance’ that something useful might turn up in the documents.

in Hatton v Attorney-General of Commonwealth of

And his Honour further said:

[2022] FCWA 110 WHAT IS THE RELEVANCE OF THE DOCUMENTS SOUGHT?

The husband’s outline of submissions filed 9 May 2022, paragraph 6(i).
The husband’s outline of submissions filed 9 May 2022, paragraph 6(vi).
The husband’s outline of submissions filed 9 May 2022, paragraph 6(v).
The husband’s affidavit filed 24 March 2022, paragraph 25.
The husband’s affidavit filed 24 March 2022, paragraphs 30–31.
Noting the wife and Ms B have raised objections to the husband’s evidence in this regard. The husband’s outline of submissions filed 9 May 2022, paragraph 6(iv).

6. (f)  The husband wants to know who is the beneficial owner of the one ordinary share in Company A.30 When Company A was registered, MsB beneficially owned the share, which was transferred in March 2021 to Company B. The subpoena to Ms B and Accountant A seeks to ascertain this information.

7. (g)  Ms B has “removed from her capital”,31 $302,045, including her contribution towards the acquisition of Property A of $135,000, payment to [Travel Agency A] of $3,045, the payment to Mr A (referred to above) and 31 transactions to Company A, of at least $114,000. In the husband’s view, Bank C is a “feeder account” to Ms B’s Bank B account (from which she has paid money to Mr A and Company A),32 and Financial Institution A is the “feeder” source of funds for Ms B’s Bank B account. The husband deposes the information as to the “exchange of funds between the wife and [Ms B] is relevant to proper financial disclosure in this matter”.33 The subpoena to Bank C, Bank B, and Financial Institution A seek access to Ms B’s statements, to identify the source of funds Ms B has applied.

The husband asserts the subpoena seeks production of documents to obtain disclosure.34 He concedes he has not sought from the wife, disclosure of the documents captured in the subpoena because“previous requests to the wife’s lawyer for information have been a waste of time and money”.35 The example he refers to, in support of that assertion, does not concern a request for disclosure.

The husband submits the subpoenaed material is relevant to providing information which:

[S]hould have, but [has not] been, disclosed by the wife. The information is relevant to establishing the asset pool at the trial. Significant time will be taken up at a trial if this information has to be sought in cross examination. It is useful to both parties and the court have certainty about these issues prior to the trial.36

WHAT IS THE EVIDENCE OF MS B?

Ms B has filed two affidavits in response to the husband’s subpoena and in support of her objections. The salient parts of her affidavits, are as follows:

The husband’s outline of submissions filed 9 May 2022, paragraph 6(ii). 31 The husband’s outline of submissions filed 9 May 2022, paragraph 6(ii).32 The husband’s affidavit filed 24 March 2022, paragraph 35(c).
The husband’s affidavit filed 24 March 2022, paragraph 35(g).

The husband’s affidavit filed 24 March 2022, paragraph 36.
The husband’s affidavit filed 24 March 2022, paragraph 37.
The husband’s outline of submissions filed 9 May 2022, paragraph 10.

1. (a)  She denies receipt of $10,000 from the wife, as claimed by the husband. She says the “alleged exchange never happened”. 37

2. (b)  Ms B solely owns and controls Company A and Company B. She is the sole shareholder of Company A. Company A is the sole shareholder of Company B.38 Ms B beneficially holds her shares in Company A, for [Family Trust A]. Ms B is the sole appointor and guardian of Family Trust A. The wife has never received any distributions from Family Trust A, nor has the wife made any contributions to it.39

3. (c)  The wife has “nothing to do with my companies”.40 Ms B has been a [cosmetic company] representative for many years. After [that cosmetic company] stopped selling their products in Australia, she established Company A and Company B, on advice, to enable her to import products from [Country A]. Ms B regularly transfers funds in the course of running her business.41

4. (d)  She has gifted to the wife, the costs of the wife accompanying Ms B to [Country B], in October 2019, and paid for the wife to have [redacted] surgery.42 Neither she, nor any entity which she controls or has an interest in, have provided any other gifts to the wife. She has not received gifts from the wife since separation.43

5. (e)  She is friends with Mr A, having known him for over a decade.44 Ms B lent $50,000 to Mr A, to help him to pay a deposit on a property, in his name, on the basis the funds are to be repaid either in cash or services.45 Apart from those funds, neither she nor the entities she controls or has an interest in, have provided any other money to, or for the benefit of Mr A.46

6. (f)  She has no knowledge of how the wife spends her money. Neither Ms B, nor any entity in which she has an interest, has ever received money from the wife, other than for the purchase of cosmetic company products, which occurs on an ad hoc basis.47

affidavit filed 31 March 2022, paragraph 8.
B’s affidavit filed 12 May 2022, paragraph 6. B’s affidavit filed 12 May 2022, paragraph 7. affidavit filed 31 March 2022, paragraph 27. affidavit filed 31 March 2022, paragraph 13. affidavit filed 31 March 2022, paragraph 18–20. affidavit filed 31 March 2022, paragraph 20. affidavit filed 31 March 2022, paragraph 14. affidavit filed 31 March 2022, paragraph 15. affidavit filed 31 March 2022, paragraph 17. affidavit filed 31 March 2022, paragraph 23.

7. (g)  Property A was purchased by herself, the wife and Mr G in equal shares. Ms B and the wife each contributed $90,000 towards the purchase, and they each paid a further $45,000, on behalf of Mr G.48

8. (h)  In response to the husband’s query, she made an overseas transfer of $6,402.44. The payment was neither for, or to, the wife or Mr A.49

9. (i)  While the husband seeks provision of “all document and information I have provided to [the wife] about my companies, [the wife] has nothing to do with my companies, so I have not provided her with any documents or information about them. Therefore, no documents in those terms exist”.50

55 Ms B objects to the husband’s attempt to access a “full record of [her] companies’ financial history” including the documents held by her accountants, Accountant A, her financial advisors, Financial Institution A, and her banking records, with Bank B and Bank C. She has already provided to the husband her personal bank statements in response to an earlier subpoena, in the hope that would put an end to his requests. She has “nothing to hide but am tired of being badgered by [the husband]. Neither me nor my companies has received money from [the wife] other than the nominal amounts in exchange for cosmetic company products described earlier in this affidavit. Neither myself nor my companies has provided money to [the wife] other than as described earlier in this affidavit, which was met by me personally, and not the companies. My companies’ information is of no relevance to [the husband] or these proceedings”.51

WHAT IS THE EVIDENCE OF MR C?

The salient aspects of Mr C’s affidavit are as follows:

(a) He is the managing director of Financial Institution A, which provides financial advice and services. He was previously employed by [Company C], which was established by the grandfather of the wife and Ms B. He has known the family for many years. The wife has been a client of Financial Institution A since October 2018, while Ms B has been a client since January 2019.

Ms B’s affidavit filed 31 March 2022, paragraph 23. 49 Ms B’s affidavit filed 31 March 2022, paragraph 25. 50 Ms B’s affidavit filed 31 March 2022, paragraph 27. 51 Ms B’s affidavit filed 31 March 2022, paragraph 30.

2. (b)  Mr C complied with a subpoena issued by the husband in 2020, producing a number of documents pertaining to the wife.

3. (c)  Neither Financial Institution A, nor Mr C, hold any documents or records, detailing the exchange of funds between the wife and Ms B, as sought in items 5 and 6.53 If the scope of the subpoena were limited to these items only, Mr C would withdraw his objection. He observes no such records exist.

4. (d)  The documents sought pursuant to items numbered 1 to 4 in the subpoena are broad, and it will take “a significant amount of resources to comply … the information requested is irrelevant”

and captures information concerning [Ms B]”.54 The Superannuation Industry (Supervision) Act 1993 (Cth), and the Superannuation Industry (Supervision) Regulations 1994 (Cth) and other legislative instruments, prohibit the transfer of superannuation interest benefits between the wife and Ms B or vice versa.55 He disputes the husband’s suggestion the material sought can be automated, and has requested he be reimbursed costs of $400 per hour, if he is required to comply with the subpoena.

WHAT IS THE EVIDENCE OF MR A?

Mr A deposes:

1. (a)  He and the wife have a “very strong friendship”;56

2. (b)  His finances are “not ideal following my own divorce”,57 and MsB lent him $50,000 to enable him to keep his home, following the breakdown of his own marriage;58

3. (c)  He does not hold any money on behalf of the wife. He and the wife are pedantic about not sharing finances. From time to time, they reimburse one another, if one person has paid for an expense, such as travel, for logistical reasons.59 He and the wife both “pay our own way”;

4. (d)  After he was served with the husband’s previous subpoena, he delivered his bank statements to the husband’s solicitor’s offices [in] July 2021;60 and

Mr C’s affidavit filed 6 April 2022, paragraph 12.
Mr C’s affidavit filed 6 April 2022, paragraphs 14 and 17. 54 Mr C’s affidavit filed 6 April 2022, paragraph 15.
Mr C’s affidavit filed 6 April 2022, paragraph 17.
Mr A’s affidavit filed 6 April 2022, paragraph 14.
Mr A’s affidavit filed 6 April 2022, paragraph 18.
Mr A’s affidavit filed 6 April 2022, paragraph 25.
Mr A’s affidavit filed 6 April 2022, paragraph 19.
Mr A’s affidavit filed 6 April 2022, paragraph 21.

(e) He has already explained to the husband, in correspondence dated [late] February 2022, that the recurring payment of $700 in his Bank B account was due to a banking error, where his monthly mortgage repayments were directed to the wrong account, and returned. The error has since been corrected.61

The husband has not sought disclosure from the wife. The duty of disclosure only extends to those facts, documents, and information relevant to the dispute. In any event, there was no application by the husband seeking disclosure from the wife. The husband’s submissions assume the wife has a duty to disclose the documents he seeks. The subpoena clearly capture documents belonging to third parties, being Ms B and Mr A. The objectors, who are strangers to the litigation, have no duty to provide disclosure.

See Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648 at [13].

1. (a)  Items 5 and 6 of the subpoena to Financial Institution A, which seek documents relating to payments between the wife and Ms B;

2. (b)  Items 5 and 6 of the subpoena to Accountant A, which relates to any communications from the wife in relation to Company B and Company A; and

3. (c)  Item 5 of the subpoena to Bank C, which seeks from 1 January 2018 to date, any payments made by the wife to Ms B.

I accept those documents may be relevant to the substantive proceedings, and to the husband’s query as to whether the wife has been diverting funds to Ms B. The husband has established a legitimate forensic purpose, in relation to those documents sought pursuant to the subpoena.

I am not satisfied the husband has established a legitimate forensic purpose with respect to the balance of the subpoena.

Subpoena to Financial Institution A

The husband has not demonstrated a legitimate forensic purpose in relation to items 1 to 4 inclusive of the subpoena to Financial Institution A. He has failed to establish how Ms B’s cash books, accounts, portfolio valuations, and transaction history, each for a period exceeding four years, are relevant to these proceedings, as to the alteration of property interests as between the husband and wife, together with the ancillary financial relief. The evidence of both Mr C and Ms B is the documents sought pertain to Ms B, not the wife, and have no relevance to the proceedings.

Ms B and Mr C have provided evidence, in answer to the husband’s queries about the financial relationship between the wife and Ms B. They have each deposed the wife has no interest or involvement in Company A and Company B, which are solely owned and operated by Ms B. Ms B has deposed that she does not hold any funds for the wife.

It would appear the husband’s primary argument is he should be given the opportunity to test the veracity of the explanations provided, and to form his own view, through inspecting documents, rather than rely on the evidence of Ms B and Mr C.

In Kelton & Brady and Anor (2017) FLC 93-799, Murphy J sitting as a single judge of the Full Court of the Family Court of Australia (as it then was), refused leave to appeal against a decision of the primary judge to set aside a subpoena on the grounds of relevance. In that case, the husband had sought disclosure of documents pertaining to a discretionary trust, in which the wife was a beneficiary. The evidence of the wife, and on her behalf, was the wife had never received a distribution of either income, or capital, the wife did not have a beneficiary loan account, and it was not intended the wife would receive any distributions in the foreseeable future. The husband asserted he did not know whether the information deposed to by or on behalf of the wife was correct, from his own knowledge, and he sought to test the evidence, by access to the financial statements of the trust.

The primary judge set aside the subpoena, on the basis of relevance. In so doing, his Honour found the husband had failed to establish a satisfactory justification to access the documents sought, in circumstances where the wife had never been a shareholder, or director, and had never received any distributions. In observing the husband’s evidence that he had no knowledge of the wife not having received distributions, and no knowledge of the beneficiary loan accounts, the primary judge found at [28] “in my view the husband would need to point to some evidence to support the assertion the wife received a distribution or has a loan account otherwise the issue of the subpoena could be described as a fishing exercise”.

Here, the husband wishes to form his own view on the evidence of Ms B and Mr C. He wants the chance to investigate and determine for himself whether Ms B has received funds from the wife. The husband has been unable to identify any evidence which could lead me to conclude the veracity of the evidence of Ms B or Mr C is in doubt, or the scope of documents sought to be produced are apparently relevant to the substantive proceedings. The evidence filed by Ms B and Mr C supports a conclusion the documents sought have no relevance to these proceedings.

Ms B has given clear, plausible evidence in relation to her personal financial circumstances. She has deposed the wife has no involvement in either Company A or Company B, nor has the wife received any distributions from her family trust. The wife is not a shareholder, nor officer holder of either entity. There was no suggestion the husband had any interest in either Company A or Company B. The husband has not pointed to any evidence to support the view the wife has had any involvement, or interest, in any of the entities, or the wife has received any trust distribution from the trust controlled by Ms B.

Ms B and Mr C have provided evidence in response to the questions raised by the husband, insofar as they relate to financial transactions between the wife and Ms B. Based on their evidence, Ms B has provided gifts to the wife, and the wife has not provided any funds to Ms B.

In the circumstances, I am not persuaded that (1) the husband should have the opportunity to access the documents sought in the balance of subpoena to Financial Institution A, to form his own view, and (2) the documents sought are relevant, simply on the basis the husband seemingly does not accept the evidence of Ms B and/or Mr C.

I will set aside items 1 to 4 of the subpoena to Financial Institution A.

Subpoena to Ms B

The husband has not persuaded me of the apparent relevance of the documents sought in the subpoena. The subpoena is broad and seeks from 1 January 2018 to date, Ms B’s communications with heraccountant in relation to Company A and Company B (entities which Ms B says she solely controls), together with copies of all bank statements in relation to Ms B’s entities. The evidence of Ms B and Mr C, which I have referred to, does not require repetition. The husband has failed to identify, or direct the Court to any evidence to support a conclusion the veracity of Ms B’s evidence was in doubt, or thedocuments he seeks have any apparent relevance to the substantive proceedings, between the husband and the wife.

The evidence of Ms B supports a conclusion the documents sought to be produced have no relevance to the issues in dispute as between the husband and the wife. The fact Ms B has jointly purchased property with the wife, the details of which she has attested to, or gifted money to the wife, or lent money to Mr A, does not form a foundation to support a conclusion that the wide scope of documents in relation to her personal financial circumstances, are relevant to the issues in the proceedings.

First Bank B Subpoena

The husband has not demonstrated the apparent relevance of the First Bank B subpoena. The documents sought relate to Ms B’s personal bank account. The husband questions a transaction conducted by Ms B, which Ms B has deposed was neither to, or for the benefit of, the wife. The husband has not established the relevance of the documents sought, in light of the evidence. I will set aside the subpoena.

Subpoena to Bank A

I intend to set aside the subpoena to Bank A, on the basis of relevance. The husband has not established the legitimate forensic purpose of the documents sought pursuant to the subpoena.

The husband seemingly wants to satisfy himself as to who Mr A paid $50,353.28 to. Mr A’s evidence, corroborated by Ms B, is Ms B lent him those funds. Mr A has given evidence detailing how the funds were applied, which do not involve the wife. I am not satisfied, in light of the evidence of Mr A, and in the absence of any evidence from the husband to lead me to conclude that Mr A’s evidence was eitherunreliable or not plausible, that the documents sought have any apparent relevance in the proceedings.

The husband has failed to establish the documents sought are apparently relevant. I will set aside the subpoena to Bank A.

Second Bank B Subpoena

I am not satisfied the husband should be entitled to investigate and determine for himself, Mr A’s explanation as to the banking error, resulting in a series of payments, where (1) Mr A is not a party to the proceedings, (2) he has no duty to provide disclosure, and (3) he has given evidence about these payments, which would support a conclusion the documents have no relevance to the substantive proceedings.

The fact the husband does not accept the explanation, or he has no knowledge to be satisfied of the explanation, does not establish a legitimate forensic purpose. In my view, the husband needs to point to some evidence to support the assertion the wife received the funds, or was involved in the transactions, otherwise the subpoena could be described as a fishing exercise.

I am satisfied it is appropriate to set aside the Second Bank B subpoena on the basis of relevance.

Orders

I propose to pronounce the following orders:

1. The subpoena to [Ms B] filed [in] February 2022 be and is hereby set aside.

2. Items 1 to 4 inclusive, and item 7 of the subpoena to the proper officer of [Accountant A] filed [in late] January 2022 be and are hereby set aside.

3. Items 1 to 4 inclusive of the subpoena to [Mr C] of [Financial Institution A] filed [in late] January 2022 be and are hereby set aside.

4. Items 1 to 4 inclusive, and item 6 of the amended subpoena to [Bank C] filed [in] February 2022 be and are hereby set aside.

5. The subpoena to [Bank B] filed [in late] January 2022 be and are hereby set aside.

6. The subpoena to [Bank A] filed [in late] January 2022 be and is hereby set aside.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD Secretary

25 MAY 2022″