Alister v The Queen

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Kozel & Evelyn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of an Application in an Appeal by which the applicant sought leave to issue and serve upon a bank a subpoena to produce documents.

1. The parties were formerly in a de facto relationship. It started in July 2014 and ended no earlier than May 2017 and no later than July 2017.
2. In October 2024, the respondent filed an application for financial relief under Pt VIIIAB of the Family Law Act 1975 (Cth) ("the Act'), subject to the anterior grant of leave to bring the application out of time under s 44(6) of the Act.
3. Such leave was granted by the primary judge on 3 December 2025 by this order:
   1. Pursuant to ss 44(6) of the Family Law Act 1975 (Cth) the [respondent] have leave to apply for relief pursuant to part VIIIAB of the Act.
4. The primary judge also granted an interim injunction compelling the parties to move funds held on trust for them by a conveyancer following the sale of their jointly-owned property, which funds were said to total $139,381, into the respondent's solicitors trust account and restraining them from dissipating the funds. The injunction was made in these terms:
   1. The parties forthwith do all acts and things and sign all documents necessary to cause the transfer of funds held on trust by [a conveyancer] to the [respondent's solicitors] Trust Account, and such funds not be dispersed to either party absent written agreement between them or further order of the Court.
5. Otherwise, the primary judge made a costs order against the applicant (Order 4) and a series of procedural orders (Order 3, 5, 6, 7 and 8).
6. The applicant filed a Notice of Appeal on 4 December 2025 seeking leave to appeal from all orders. The application for leave to appeal was subsequently listed for hearing on 18 May 2026.
7. On 17 March 2026, the applicant filed an application in these appellate proceedings seeking leave to issue a subpoena to a bank, requiring it to produce to the Court any documents relating to the account held by the conveyancer in which the trust funds were deposited. According to the supporting affidavit filed by the applicant, he is perplexed by an apparent inconsistency in the bank records about the total amount deposited in the conveyancer's account. He thought it was $70,990, but the wife contends it was $139,381.

1. Whether or not the applicant understands, he has applied for permission to issue the subpoena in the appellate proceedings, not in the ongoing original financial proceedings.
2. To secure permission to issue the subpoena in the appellate proceedings, the applicant must satisfy the Court as to the validity of the subpoena. The documents he seeks must have "apparent relevance" to the litigious suit, which the documents lack if they have no legitimate forensic purpose (Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414, 439 and 456; Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 681; R v Saleam (1989) 16 NSWLR 14 at 18-19).
3. The documents sought by the applicant are not shown to have any legitimate forensic purpose in these appellate proceedings. The only relevant issues in the appellate proceedings are whether the primary judge validly made the order under s 44(6) of the Act giving the respondent leave to bring the financial proceedings out of time (Order 1), the interim injunction (Order 2), and the costs order against the applicant (Order 4). The bank records which the applicant wants could have no conceivable bearing upon the validity of any of those orders.
4. Whether the trust funds are correctly quantified at $70,990, $139,381 or some other figure, the parties presently have an equal and joint entitlement to the funds over which they are locked in conflict. In his written submissions to the primary judge, the applicant submitted "the trust fund issue remains unresolved" and the dispute over such funds fell within the jurisdiction of a State magistrates court, which civil debt recovery proceedings he instituted against the conveyancer without joining the respondent. Those parallel State proceedings are still pending.
5. Supposing the bank records are relevant to the disposition of the underlying financial proceedings between the parties by helping to resolve a factual dispute over the amount of money held in trust for them jointly, this Court has no power to make an order in the exercise of original jurisdiction as it is only presently exercising appellate jurisdiction. If the applicant wants to issue the subpoena in the underlying proceedings, he must make his application to the primary judge, which he has apparently already done.
6. The application is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.