Wellington & Wellington (No 2) [2025] FedCFamC1F 338 (24 April 2025)

1. The solicitor for the Husband provided an oral undertaking to the Court today, which states that he will not charge the Husband more than $2,000 for all work relating to the subpoena objections for the National Australia Bank and F Pty Ltd.

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 Wellington & Wellington (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The matter comes before the Court in relation to two subpoenas issued by the respondent wife to F Pty Limited and National Australia Bank. The subpoena related to documents of the husband's, covering a period from 2019 to the date of the issue of the subpoena. The context of this matter is broader parenting and property proceedings that are before this Court.
2. The husband has filed a notice of objection in relation to each of the subpoena. The documents in question have been produced. The wife would like access to them. The husband opposes the same. The husband's concerns seem to be based on several bases. In relation to the relevance of the document though, this was not really pressed in submissions today. But also, the scope of the document and whether the Respondents go too far in seeking production of documents that go back to 2019.
3. The Court acknowledges that it does not know, and the wife and her lawyers do not know, what is contained in the documents produced on subpoena. For example, neither the Court, nor the wife, knows whether any of the accounts produced go back to 2019. Ironically, the husband knows these things, or should know these things. Nonetheless, the Applicant's opposition to any leave to inspect the documents is put on that basis.
4. Some further background is necessary to understand the concerns of the wife and some of the concerns expressed by the Court in the course of the exchange between the bench and bar table this morning. When the husband filed his financial statement on 30 January 2025, at items 37 and 38, he disclosed no bank accounts and no investments.
5. Now, just pausing here. Any experienced family lawyer would regard as inherently improbable the asserted fact at item 37; that there were no bank accounts. I repeat, it would be inherently improbable in today's world, with a client who is working full time, that there is no bank account. Nonetheless, that is what the husband swore to in his financial statement.
6. Despite this, when documents were, in fact, produced pursuant to the disclosure requirements, the husband provided an account with the National Australia Bank, which referred to a number of transactions evidencing payments to the company known as F Pty Ltd. The inference from the material filed by the wife is that F Pty Ltd is some form of facilitator of overseas transfers or foreign exchange transactions. The inference that could logically be drawn is that there have been overseas transfers of money. The assertion in the Husband's financial statement is not just incorrect, but patently false. Contending that there was no bank account is in complete contrast to the documents that he produced.
7. It is not unusual, drawing on my very long experience in this jurisdiction, that the wife's sensitivity to issues of non-disclosure would be heightened by the facts that I have briefly adverted to. Hence, she has filed two subpoena that go back as far as 2019. The relevance of the year 2019 is not entirely clear to the Court, but inference and experience would suggest that in circumstances where the husband has filed a false financial statement, she would want to be meticulous in seeking information about transactions that occurred during the course of the marriage.
8. Indeed, a recent Full Court decision in Boulton & Boulton [2024] FedCFamC1A 132; (2024) FLC 94-202 provides an example of where a financial transaction that occurred much, much earlier in the relationship was highly relevant, and the husband's failure to disclose such transaction resulted in him losing the appeal. It is clear that historical transactions are still very much relevant in cases such as this, but more so in circumstances where there is a non-disclosure and filing of certainly wrongful financial evidence.
9. The husband's concerns about the subpoena are not justified in the circumstances of this case. The material before the court is relevant, and the husband's own actions have made it even more relevant, particularly in terms of getting historical financial data. The assertion by the husband's solicitor that, somehow, the production of these documents is an unjustified invasion of privacy is hard to follow, given that these transactions took place, it would seem, during the course of the relationship between the parties.
10. In the circumstances, I believe that the documents sought are quite apparently relevant to the issues in these proceedings. The production of the documents probably will be relevant and at the very least pass what I consider to be the relatively low threshold in these matters of documents that could be relevant (s 55 Evidence Act 1995 (Cth)). Accordingly, the husband's notices of objection subpoena in relation to both subpoenas to NAB and F Pty Ltd are dismissed.

1. A costs application is made following the orders I've made dismissing the objection to subpoenas. It is common ground between the parties that the husband was entirely unsuccessful in his application as it relates to the subpoenas. It is also common ground that the husband did not accept an offer made by the wife, which, if accepted, would have settled the proceedings. In circumstances where the proceedings have been entirely adverse to the husband and a beneficial offer was refused, two matters set out in s 117(2)(A) of the Family Law Act 1975 (Cth) ("the Act") are established. I consider, for those reasons, it is appropriate to depart from the general principle that each party should pay and bear their own costs.
2. I do not regard this, though, as matter where indemnity costs should be considered. I understand that costs as provided for under schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") are approximately $1600. The indemnity costs are $4205. Now, what this means, of course, and this is more for the benefit of the clients who are listening than for the lawyers, that the wife has actually spent $4205 in relation to this hearing. Nonetheless, it is not a case where indemnity costs apply. However, I am going to use the power that I have under the Rules and the Act to assess costs.
3. I assess the costs of the wife in the sum of $2000, and I order the husband to pay those costs within 28 days or otherwise as agreed.
4. I have regard to the Financial Statement of the husband filed 30 January 2025 in determining the question of when the cost should be payable. His financial summary shows that his expenditure is significantly greater than his weekly income, and, just looking at his assets, there are virtually nil liquid assets that could be applied towards the payment of the wife's costs. In the circumstances, it is appropriate to defer payment of the wife's assessed costs to the date that the matter is finalised. It will be paid out of his share, but at the time of Settlement or Court order.

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