Commissioner of Taxation attempts to gain access to a Federal Circuit Court family law file

In the recent case of International Litigation Partners Pty Ltd v Commissioner of Taxation, the Federal Court dismissed an application by the Commissioner to inspect documents held on a Federal Circuit Court family law file.

The family law matter concerned a dispute between a husband and wife over property and children. The husband opposed the Commissioner’s application and the wife had no objection. The Commissioner wanted access to all affidavit material and financial statements filed by the husband for what could be described as a `fishing exercise’.

Although the Commissioner was not successful in his application on this occasion, he was successful in an earlier 2014 case, Commissioner of Taxation v Darling. This decision is thought to be the subject of an application to the High Court for special leave.
Documents relating to the children were excluded from the documents sought by the Commissioner. The Court accepted the husband’s grounds of objection which were:

1. The husband was not a party to the proceedings before the Federal Circuit Court. (It was his company that was the party);
2. The family law file involves issues relating to a child;
3. There is likely to be substantial difficulty in separating documents dealing with issues that might be of relevance to the Commissioner from those that disclose information touching upon the interests and concerns of the child;

The Court held that:

• It is pure speculation on the Commissioner’s part to surmise that the file might contain some relevant information; and

• There is some force in the submission that the very nature of the issues in the present proceeding, compared to the nature of the issues in the Family Law proceeding, make it improbably that the file will yield any information of any real utility; and

Importantly The Court held that:

• It was not satisfied that the Commissioner had presented a rational foundation for inferring that such additional utility as there might be in the Commissioner inspecting the Family Law file outweighs the interests of the husband in maintaining the confidential status of that file or, indeed, the public interest that must exist in such confidentiality being maintained (emphasis added).

• The fact that the husband’s wife did not object is a relevant consideration, but the fact also remains that the husband does object and his grounds of objection, in all of the circumstances, are persuasive.


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