Pauwels & Radu (No 4) [2026] FedCFamC1F 44 (2 February 2026)

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 31 October 2025 I gave judgment and made orders in respect of a dispute between a subpoenaed party (OO Pty Ltd) and the applicant wife.
2. I incorporate the reasons given on that day, Pauwels & Radu (No 3) [2025] FedCFam1CF 779, as part of these reasons for judgment.
3. The subpoenaed party raised the issue of payment of conduct money at the hearing, and I made directions for the parties to file submissions about the issue.
4. The subpoenaed party filed a schedule of costs claimed on 1 December 2025. Those costs were itemised and totalled $9,894.50 for work undertaken between 3 November 2025 and 24 November 2025. A separate item listed as "Invoice from [AG Legal Services]" in the sum of $7,719.80 is also listed on the schedule. It is plain from the submissions filed on behalf of the subpoenaed party that they seek an order that the wife pay their costs of compliance in the sum of $17,614.30.
5. The husband did not participate in the subpoena hearing but has made submissions about the application for payment of conduct money.
6. The wife seeks that the subpoenaed party's application be dismissed or that the husband meet any costs of compliance with the subpoena.
7. The husband seeks that any costs of compliance be paid by the wife.
8. The question of payment of conduct money is governed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Rule 6.35 provides:

6.35 Cost of complying with subpoena if not a party

(a) a subpoena is addressed to a person who is not a party to the proceeding; and

(b) before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including a particularised estimate of the loss or expense; and

(c) the court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.

(2) Unless the court otherwise directs, the amount of the loss or expense estimated under paragraph (1)(b) is payable by the issuing party.

(3) The court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend.

(4) The amount payable is in addition to any conduct money paid.

(5) If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the court may:

(a) allow the amount to be included in the costs recoverable; or

(b) make any other order it thinks appropriate.

(a) Did the subpoenaed party give the issuing party notice that a substantial loss or expense would be incurred and particularise that loss or expense?

(b) If so, is the loss or expense properly incurred?

(c) If not, are costs payable?

(d) If costs are payable, then by whom and in what quantum?

Did the subpoenaed party give the issuing party notice that a substantial loss or expense would be incurred and particularise that loss or expense?

1. Rule 6.35, which governs the making of an order for costs of complying with a subpoena to a non-party, provides that the rule applies only if notice has been given before complying with the subpoena.
2. The subpoena was caused to be issued on 10 September 2025.
3. Production was required by 24 September 2025. No documents were produced.
4. A Notice of Objection was filed on 26 September 2025.
5. The objection was heard and determined by a Senior Judicial Registrar ("SJR") on 2 October 2025. As a consequence of the orders made by the SJR, documents were to be produced by 23 October 2025. No documents were produced.
6. A review of the SJR's decision confirmed the requirement to produce. Documents were produced on 14 November 2025.
7. There is no evidence before the Court capable of satisfying me that before complying with the subpoena the objecting party gave notice to the wife of substantial losses or expenses which would be properly incurred and particularised the losses or expenses.
8. I accept that the issue of costs of compliance was raised generally at the hearing on 31 October 2025. There is no evidence of particularisation.
9. In accordance with my directions, the subpoenaed party served a schedule of costs said to have been incurred on 1 December 2025 - that cannot substitute for notice in advance of compliance of a particularised estimate.
10. The intention of notice is to, appropriately, give the parties the opportunity to discuss and agree on reasonable costs. If they have provided notice and cannot agree, the Rules provide a mechanism for resolving the dispute. Failure to comply with the Rules is significant since it is a prerequisite to the application of the Rules.
11. In these circumstances, I decline to order that the subpoenaed party receive any amount in excess of that already provided by way of conduct money.
12. Given this conclusion it is not necessary to address the remaining issues including quantum but I am further persuaded of the appropriateness of the above course since the majority of the expenses claimed post-date the date of compliance with the subpoena and could not properly and reasonably be characterised as costs of complying,

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.