Janvier & Domas (No 3) [2025] FedCFamC1F 271 (29 April 2025)

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).

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 Janvier & Domas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Before the Court was an Application for Review as filed by the husband on 7 March 2025, and dated 5 March 2025. In that Application, the husband sought a review of the orders made by a Senior Judicial Registrar on 13 February 2025 as pertaining to a subpoena issued on 13 January 2025 on behalf of the husband. The subpoena was directed to the "Proper Officer of Westpac Banking Corporation".
2. The orders made by the Senior Judicial Registrar on 13 February 2025 were relevantly as follows:
   1. The Applicant and Respondent both advise "The Proper Officer, Westpac Banking Corporation" of all residential addresses they have used for the purpose of Westpac Banking Corporation complying with the subpoena issued by the Applicant in these proceedings on 13 January 2025 to ensure that they only produce, if any, documents pertaining to a party to the proceedings, and not information that relates to a third party.
   2. UNTIL FURTHER ORDER, no documents produced pursuant to the subpoena filed by the Applicant in these proceedings on 13 January 2025 and issued to "The Proper Officer, Westpac Banking Corporation" can be inspected by either party or their legal representatives (if any).
   3. By no later than 4.00pm on 28 February 2025, the Applicant serve a copy of this order by ordinary post to the "The Proper Officer, Westpac Banking Corporation".
3. The subpoena issue arose in the context of a final property proceeding between the parties. The property proceeding was commenced by the husband in an Initiating Application for Final Orders filed 22 June 2023. By Amended Application for Final Orders filed 8 September 2023, the husband sought, additionally, final parenting orders. A Response to Initiating Application was filed by the wife on 8 December 2023 seeking both final property and parenting orders.
4. Since the commencement of the proceeding, there have been an extraordinary number of interim hearings, and numerous subpoenas filed. There have been three Applications for Review of decisions of judicial registrars upon application by the husband.
5. In the present Application for Review pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), the husband sought review of the orders as described above.
6. At the commencement of the hearing, the husband confirmed to the Court that the affidavit of evidence which he sought to rely upon had not been served upon the wife. It was a brief affidavit. I determined, in the circumstances of the parties having had so many events, hearings and conflict during the course of the proceeding to date, that it would be more efficient for the parties and for the efficient operation of the Court to read the affidavit of the husband to the wife and obtain her oral responses. The wife was also provided with a copy of the affidavit. The parties agreed to this course and with the granting by the Court of leave to the husband to rely on his affidavit.
7. The husband appeared as a self-represented litigant. He required the assistance of an interpreter for the duration of the hearing. It became clear during the course of the hearing, and on an examination of the husband's affidavit evidence, that the husband sought only review of Order 1. The husband's pursued objection to Order 1 of the orders made on 13 February 2025, was that such order lacked enforceability because it failed to specify a time frame within which the wife was required to provide her address details to Westpac Banking Corporation.
8. The wife also appeared as a litigant in person. She did not place any documents before the Court and nor did she seek any orders. The wife made various submissions to the Court and answered those queries as directed by the Court to her. The wife gave oral testimony with the leave of the Court and as agreed to by the husband.

1. The Applicant husband ("the husband") relied upon:

(1) an Application for Review filed 7 March 2025; and

(2) an Affidavit affirmed by him on 21 March 2025 and filed 24 March 2025, such reliance being with the leave of the Court; and

(3) submissions as made by him.

1. The Respondent wife ("the wife") relied upon her oral evidence given at the hearing and upon submissions as made by her.

1. Following the making of the 13 February 2025 orders, the husband provided Westpac Banking Corporation with a copy of the orders as was required of him by the orders. The husband further provided to Westpac Banking Corporation various (asserted by him) residential addresses of the wife, together with her driver licence numbers (x2). He provided Westpac Banking Corporation with no residential addresses as used by him or belonging to him, stating that none were relevant for the purposes of the wife complying with the subpoena. The husband submitted that he does not have and has never had a Westpac Banking Corporation account in his name.
2. The husband, in his proposed orders, sought that that the Court make a 'confirmation' that the below addresses and driver licence numbers were those of the wife, Ms Domas, and for the Court to direct that a copy of the Court's 'confirmation' be provided to Westpac Banking Corporation to facilitate compliance with the subpoena issued on 13 January 2025:

(a) O Street, Suburb P, TAS;

(b) Q Street, Suburb R

(c) S Street, Suburb T, Victoria;

(d) U Street, Suburb V, Victoria; and

(e) driver licence numbers:

(i) ..., issued in Tasmania; and

(ii) ..., issued in Victoria.

1. The husband further sought that the Court direct Westpac Banking Corporation to provide an updated subpoena response within 14 days from the date of any order based on the confirmed addresses and driver licence numbers of the wife, and for leave to be granted to the husband to inspect the updated subpoena response as submitted by the Westpac Banking Corporation.
2. The husband's application, as I pointed out to the parties at the hearing, raised similar issues to the application as determined by Justice Maguire on 11 November 2024. In that earlier application, his Honour was dealing with a third-party objector, namely the Commonwealth Bank. The bank opposed the production of documents as requested in the subpoena issued on behalf of the husband for bank accounts allegedly held in the name of the wife. An earlier freezing order made ex parte on 4 September 2024, the Commonwealth Bank argued, had mistakenly captured accounts held by the "wrong [Ms Domas]".
3. That mistake had been detected as follows. Upon receipt of the subpoena issued on behalf of the husband, a two-point identification check was conducted in respect of the Commonwealth Bank's books and records in accordance with usual practice. That search identified four customer profiles held by the Commonwealth Bank in the name of Ms Domas of a birthdate in 1983. A total of 15 accounts were identified under the customer profile. However, a review of the books and records held by the Commonwealth Bank confirmed that the bank had two customers, both having the same name and date of birth, but with differing customer profiles. Upon a closer review of the personal details and identification records held by the Commonwealth Bank (including C Bank) for each of the customer profiles for the name of "[Ms Domas]", date of birth 1983, the Commonwealth Bank was confident that the accounts were held by different people "and are not the same person".
4. His Honour in that case noted in paragraph 22 of his reasons for judgment, relevantly, that:

The disinterested bank objectively offers details of its investigation showing what is indeed a coincidence of accounts held by, apparently, two real persons carrying the same names and date of birth. The evidence, however, includes evidence of photographs from passports and drivers' licence required for the establishment of the bank accounts supplemented by different postal addresses, email addresses and telephone numbers. The signatures are observably different. The drivers' licences were issued in different States. The passports hold different document numbers.

1. His Honour concluded that the investigations by the Commonwealth Bank were proper and extensive and, on the balance of probabilities, accepted the conclusions of the Commonwealth Bank that there were two distinct customers carrying the same name with the same date of birth. Accordingly, the freezing order was set aside and vacated in respect of the accounts relevant to the third party 'Ms E'.
2. Returning to the application before me, the wife, in her oral evidence, confirmed that the addresses and licence numbers as issued in Tasmania and Victoria, as provided by the husband to Westpac Banking Corporation were all correct, with the addresses being either formal rental residences resided in by the wife, and/or her current residential address being S Street, Suburb T, Victoria. The wife confirmed that she had resided in rental premises in Suburb P, Tasmania; Suburb R, Tasmania; and Suburb V in Victoria, before commencing her residence in Suburb T in Victoria.
3. In her oral evidence, the wife deposed to having never had a Westpac Banking Corporation account, including to the date of her testimony. The evidence of the wife was that, following the making of the orders by the Senior Judicial Registrar on 13 February 2025 (and in the period of approximately a week following the making of those orders) she contacted the Westpac Banking Corporation by telephone and spoke to a gentleman whose name she could not provide and/or recall.
4. The wife gave evidence that, in that telephone conversation, she conveyed that the addresses, as provided by the husband, in respect of her past and present residential rentals were accurate, and her driver licence numbers issued in Tasmania, and subsequently, in Victoria, were also accurate. The wife deposed further that the Westpac Bank officer to whom she spoke indicated that the Westpac Banking Corporation did hold accounts of a person with her same name, but declined to disclose any further information about that person, indicating that that person had differing identification documents, including driver licence and home address.
5. Clearly, it is not appropriate or proper that the confidential financial affairs of a third party, if already mistakenly produced by the Westpac Banking Corporation in response to the earlier subpoena issued 13 January 2025, should be inspected by either party or their legal representatives. The wife's evidence makes clear that any subpoena addressed to the Westpac Banking Corporation would need to seek only production of documents that relate to the wife in this proceeding, and no other person. Any such subpoena would need to include the particular identifying features of the wife. I observed that, on her evidence, no accounts held by her would be disclosed or produced, because none exist.
6. It is important, therefore, that Order 2, as made by Senior Judicial Registrar Fitzgerald on 13 February 2025, remain in full force and effect. I note that the wife has complied with Order 1 on her evidence which I accept. The husband has complied with Order 3. Orders 4 to 6 inclusive of those orders, relate to the parenting orders proceeding, and were not sought by either party to be altered or discharged. Order 7 of the orders made adjourned the proceeding to a mention, being a date that has since passed.
7. The wife having complied with Order 1 of the orders, the Application for Review can be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.