Douglas and Ferris and Anor
[2014] FCCA 2785
•19 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOUGLAS & FERRIS & ANOR | [2014] FCCA 2785 |
| Catchwords: FAMILY LAW – Practice and procedure – subpoena and objection on grounds of relevance – production of documents by third parties – prerequisites to production. |
| Legislation: Family Law Act 1975, s.75(2) |
| Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; (1965) AC 694; (1964) 3 All ER 692; (1964) 3 WLR 963 Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366; [2008] FLC 93-388; (2008) 251 ALR 257; (2008) 40 Fam LR 1; (2008) 83 ALJR 145 Morgan v Morgan [1977] 2 All ER 515; (1977) 2 WLR 712 Official Receiver In Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Read & Chang and Anor [2010] FamCA 876; [2010] FLC ¶93-450 |
| Applicant: | MR G DOUGLAS |
| Respondent: | MS FERRIS |
| Third Party: | MR L DOUGLAS |
| File Number: | MLC 4364 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 November 2014 |
| Date of Last Submission: | 19 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson of Counsel |
| Solicitors for the Applicant: | Cantwell Family Lawyers |
| Counsel for the Respondent: | Dr. Ingleby of Counsel |
| Solicitors for the Respondent: | Schetzer Constantinou |
| Counsel for the Respondent: | Mr Davis of Counsel |
| Solicitors for the Respondent: | Dimos Lawyers |
ORDERS
On or before 4.00 p.m on 1 December 2014 Mr L Douglas must, in compliance with the Subpoena to him issued on 16 April 2014, produce to the Court the documents described in the schedule to the said Subpoena save for any documents produced as relating to item 3 on 17 October 2014.
Upon production of the documents described in the said Subpoena those documents be released to the legal practitioners for the parties for inspection and photocopying.
Until further order the legal practitioners for the parties be and are restrained from providing or showing to the parties or either of them or permitting them to inspect copies of any of the documents produced pursuant to the said Subpoena.
Until further order the legal practitioners be and are restrained from advising or informing the parties or either of them of:
(a)The name and/or identity of the trustee or trustees of any of the trusts or settlements constituted by and/or described in the trust deeds (“the trusts”) and/or tax returns and financial statements produced pursuant to the said Subpoena.
(b)The address and/or identity of the real properties held by the trusts or any of them; and
(c)That save as provided at (a) and (b) herein the legal practitioners for the parties be and are otherwise permitted to advise and inform their clients of the information and events, facts or things described in the documents produced pursuant to the said Subpoena.
Any application for costs relating to the objection by Mr L Douglas to the production of documents pursuant to the said Subpoena (and hearing of the objection) be made in writing and filed with the Court within 14 days of the delivery of reasons by the Court.
There be liberty to apply as to these orders upon short notice to the other party and Mr L Douglas (the recipient of the Subpoena).
IT IS NOTED that publication of this judgment under the pseudonym Douglas & Ferris & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 4364 of 2013
| MR G DOUGLAS |
Applicant
And
| MS FERRIS |
Respondent
| MR L DOUGLAS |
Third Party
REASONS FOR JUDGMENT
(As Revised from Transcript)
In this matter the husband has issued a subpoena to the wife’s father seeking access to documents he holds with respect to a number of family trusts. The wife’s father objects to producing the documents.
For the purpose of the argument on the subpoena question, copies of two of the trust deeds (without the names of the trustee companies) were produced, which the parties agreed were representative of the terms of the various trust deeds.
I have come to the view that there should be discovery of the trust documents subpoenaed. I am also of the view that there should be limitations on who is able to see those documents. Initially, a release to the lawyers for the husband is sufficient in my view, with the right to advise the Husband of the contents for the purpose of obtaining instructions. Once that has come to pass if there is some need to then deal with the issues further, it is appropriate that the matter come back to me, if there is not agreement between the parties.
I provided a brief outline of the reasons when making the Orders as the impending trial date made a determination of this issue urgent and I advised the parties full reasons would be forthcoming in due course. I have since revised the reasons by adding considerable authority, whilst retaining the key propositions outlined in the brief oral reasons.
In argument considerable focus was placed upon whether or not the wife has a right to inspection of the trust documents as a beneficiary herself, which does not seem to me to be determinative of the discovery question. The question of discovery in these proceedings, on the request of the husband, must be determined on the usual basis: that is, by identifying the issues in the case, whether the documents are relevant to those issues, and whether there is any other reason to decline to make the documents available. Whilst in family law proceedings the discovery process is by subpoena duces tecum, in substance it is the same question as a non-party discovery application in other Courts. Whilst the wife’s right to inspect the documents as a beneficiary is not determinative of the discovery question, it is relevant to determining the discovery question.
In Trade Practices Commission v Arnotts Ltd (No.2) [1989] FCA 248; (1989) 21 FCR 306; (1989) 88 ALR 90, the Federal Court said:
44. Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.
…
46. The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
(2) Unfair prejudice to Mattingly? A subpoena to produce documents must specify with reasonable particularity the documents which are required to be produced (see Lucas Industries Ltd. v. Hewitt (1978) 45 FLR 174 at p 188; R. v. Barton (1981) 2 NSWLR 414 at p 428; Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 35 ALR 322 at p 332). But no such point is taken here.
Relevance of documents
The application in this case seeks an alteration of the property interests of the parties pursuant to s.79 of the Family Law Act 1975. An essential requirement for a determination under this provision is the identification of all of the parties’ property interests: see Stanford v Stanford [2012] HCA 52 at para [37].
If the wife has any interest pursuant to the trust deed that does not fall within the definition of property (with the meaning of the Family Law Act) it may nonetheless be a relevant consideration pursuant to s75(2)(b) on the basis that it is a “financial resource”. The metes and bounds of a financial resource are difficult to define in the abstract.
In White & Tulloch & White [1995] FamCA 127 at [45], the mother of the wife objected to a subpoena to produce her will, prior wills and evidence of her financial standing. In ordering the production of the current will only, the Full Court stated that:
[45] … The ultimate criterion is whether the evidence is, or may be, relevant to the just and equitable process under s.79. An expectancy of inheritance will not be relevant in many s.79 proceedings. In the end, relevance must depend upon the nature of the claims being put forward and the facts of the particular case. For example, if the claims were based entirely upon contributions, it could not be suggested that an issue of expectancy could be relevant because no s.75(2) factors would be involved. Where the claim includes s.75(2) factors, the nature or degree of suggested relevance between those specific claims and the expectancy in question would need to be analysed. That is to say, there must be a worthwhile connection between a specific element of the party's case and the suggested expectancy.
A salient difference between the wife being a beneficiary in a will (with a testator of sound mind) as opposed to being a beneficiary under a trust, is that there is absolutely no impediment on the testator changing the will. However, under a trust in the style of the trusts in this case, a share of the equitable interest in the property has been conferred upon the wife, her interest only defeated if the trustee exercises a discretion which is restricted by such fiduciary duties as apply in this particular trust. Analysing those duties is a matter for trial, not a discovery application.
In Read & Chang and Anor [2010] FamCA 876; [2010] FLC ¶93-450, Cohen J referred to White & Tulloch & White [1995] FamCA 127 and Hartigan Nominees Pty Ltd vRydge (1992) 29 NSWLR 405, before stating that:
[14] One must appreciate that s 79 proceedings have a character which is different from State Supreme Court proceedings. …
[15] In s 79 proceedings although the onus is on a party to prove the s 75(2) factors that party relies on, the Court is not simply left to dismiss the party’s case if it is unproven in whole or in part. The Court continues, because of s 79(4)(e), to have the duty to take the matters listed in s75(2) into account, “so far as they are relevant.” As s 79(4) says “the Court shall take [them] into account” and, pursuant to s 79(2), “shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Thus, it must be that the Court has a duty which goes beyond the cases presented by the adversarial parties to reach a decision which is a proper exercise of discretion in the circumstances. Both parties are obliged to disclose their financial circumstances. Here, the wife as well as the husband really has the duty to seek to prove what she is likely to receive from the trust in future. … in the Family Court they are not parties in circumstances where both parties; i.e. the husband and wife, could not avoid the fact that the likely distributions to the wife from the trust is an issue so evidence which might reasonably tend to establish this must be regarded as relevant.
To the extent that the documents show the value of an equitable proprietary interest of the wife, they are clearly relevant as property within the meaning of s.79. To the extent that the wife’s interests under the trust deeds are “property” (as referred to in Kennon v Spry [2008] HCA 56), the documents would also be relevant. Importantly, the nature of her interest may be such that it is only a financial resource within the meaning of s.75(2)(b). If it is a mere equity of insufficient significance to amount to a relevant financial resource it will not be relevant.
To the extent that the assets of the trusts are, in a practical sense, arguably the assets of the wife’s father, see for example: Australian Securities and Investments Commission v Carey (No.6) (Richstar Nominees) [2006] FCA 814; (2006) 153 FCR 509; (2007) 233 ALR 475; 24 ACLC 814; 58 ACSR 141; 63 ATR 524) one must ask what is the relevance of the subpoena.
There can be little doubt that if the wife has a present interest in significant assets that form the corpus of a trust (subject to the possible defeasance of her interest by determinations of the trustee) that such an interest is arguably a relevant factor for the purpose of ss.75(2) and 79 either in terms of her future property interests or financial resources.
Whether the particular trust interests reach the level of being a property or financial resource that actually has an impact on the case will need to be determined on the evidence, however for the purpose of discovery the question is whether there appears to be a sufficient connection to make these trust documents relevant. That is, whether adjectival relevance is established.
In In the Marriage of J & J (1988) FLC ¶91-940; (1988) 12 FamLR 836, Treyvaud J said that:
The obligation of full and frank disclosure of all material facts, cast upon spousal parties to financial proceedings in this Court, is well known. The rationale for this obligation is explained in the speech of Lord Brandon in Livesey v. Jenkins (1985) 1 All E.R. 106 at p. 114 :
`` ... unless a court is provided with correct, complete and up-to-date information on the matters to which, ... it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court.''
Livesey's case has been followed by this Court. See, inter alia, Briese and Briese (1986) FLC ¶ 91-713; Oriolo and Oriolo (1985) FLC ¶ 91-653 .
In my view, the need for the Court to be provided with correct, complete and up-to-date information on matters relevant to spousal financial proceedings is the reason behind, and the justification for, O. 20 r. 7 and 8, and their predecessor family law reg. 92. This was, I believe, the view of Cook J. in Mallet and Mallet (1981) FLC ¶ 91-091 at p. 76,637 when he said:
`` The whole effect of reg. 92 is to provide a means to both parties to have available at the hearing the best evidence in support of their claims and the machinery it provides should be used wherever and whenever it is available. Regulation 92 is remedial and has been designed to meet specific needs of the litigation conducted in Family Courts and is clearly intended to place each of the parties on an equal footing so far as knowledge and understanding of the affairs and transactions of the other is concerned.''
By these rules the Court has provided litigants with a means and opportunity to obtain from persons not parties to proceedings, production and inspection relevant to financial proceedings, well before trial. The rules thus enable the party to obtain documents, and therefore information, otherwise unobtainable except upon subpoena at trial, of which the trial Judge ought to be apprised to enable him correctly to exercise his discretion. [emphasis added]
The wife has not disclosed any documents relating to the trusts, saying that she has no documents. The wife’s father says that she has never received a distribution from the trusts. In her financial statement she says that the value of the trusts is unknown to her. The husband is, therefore, left to seek the information from others.
The Trust Deeds in this Case
The first deed was settled on 1 December 1976 and the second deed was settled on 18 August 2009, both with the sum of $100. The Deeds have been varied.
In the deed which forms exhibit 2, the wife’s parents, all of their children, grandchildren and remoter issue are the ‘Primary Beneficiaries’. The ‘General Beneficiaries’ are a broader class and there is also a class (of which the wife is not a member) of ‘Additional Income Beneficiaries’.
The ‘Primary Beneficiaries’ in the 1976 deed, which forms exhibit 1, are the wife of the settlor and the wife’s father’s spouse, children and remoter issue. The trust deeds provide for ‘Additional Income Beneficiaries’ which are a broader group. The ‘General Beneficiaries’ are an extensive group, including the ‘Primary Beneficiaries’ and the siblings, spouses and children of the ‘Primary Beneficiaries’.
In the deeds the common salient features relevant to this application are:
a)The wife’s father is the ‘Guardian’, and the guardian has the power to appoint a new trustee;
b)The wife, among other family members, is in the ‘Primary Beneficiaries’ class of beneficiaries;
c)The income, if not appointed to one or more of the general beneficiaries, is to be paid in equal shares to the primary beneficiaries.
d)The income and capital of the trust is to be shared equally between the ‘Primary Beneficiaries’, if the trustee has not exercised their discretion to appoint all or part of it to one or more of the ‘General Beneficiaries’.
e)The trustee has power to exercise a discretion to appoint the income and capital to any one of the ‘General Beneficiaries’, a class that includes the ‘Primary Beneficiaries’;
f)The trustee’s discretion to make appointments appears unfettered, being expressed as a power to make appointments ‘as the trustee sees fit’.
Clause 2(o) of the 1976 deed emphasises the width of the trustee’s discretion, saying:
2. …
(o) The expression “as the Trustee thinks fit” shall give the Trustees the widest and most absolute and unexaminable discretion including where applicable the power to prefer one or other beneficiary to the total exclusion of any other or others of them.
In the 2009 Deed of Settlement, the expression ‘as the trustee sees fit’ is defined as:
2. …
(p) The expression “as the Trustee thinks fit” shall give the Trustee the widest and most absolute and unexaminable discretion to make any decision including where applicable:
(i) the power to prefer one or other beneficiary to the total exclusion of any other or others of them,
(ii) determinations as to income under clause 3(a)(ii),
(iii) the appointment of capital under clause 3(d), and
(iv) the trustee’s power to make determinations under clause 4.
Interestingly, the definition of ‘General Beneficiaries’ in the deeds includes the ‘spouses’ of ‘Primary Beneficiaries’. At least for the purpose of the matrimonial proceedings, it is arguable that the husband may remain a ‘spouse’ of the wife: see Kennon v Spry [2008] HCA 56 at 202.
Thus, the wife is a ‘Primary Beneficiary’ and the husband may be a ‘General Beneficiary’. If the trustee so determines, income or capital could be appointed to the husband or wife. In the absence of any appointment, the wife shares equally with the other Primary Beneficiaries in the income (at the end of each accounting period) and in the capital when it vests.
Significantly, it is alleged that there has never been a distribution to the husband or wife, either by appointment, or (in the case of the wife) by operation of the terms of the trust deed.
The wife’s father arguably has effective control over the trusts, as he is the Guardian, with power to appoint the trustees. The trustees are companies, with respect to which argument proceeded on the basis that the wife’s father has control over them as sole or one of two directors.
Fishing
It does not seem to me that this subpoena is fishing given that there is evidence before me that the wife has interests under the trusts as a primary beneficiary.
Privacy and Oppression
I do not accept that there is a general right of privacy that comes to bear upon discovery questions. Rather, it is a question of relevance to the proceedings and whether or not the discovery sought is fishing or oppressive. An individual’s privacy cannot stand in the way of justice.
In Morgan v Morgan [1977] 2 All ER 515; (1977) 2 WLR 712, Watkins J appears to have acceded to an argument that forcing the wife’s father (who was 74) to give evidence of his assets, and testamentary intentions, was oppressive. This was not accepted by the Family Court in In the Marriage of Lea [1990] FLC ¶91-319; (1990) 101 FLR 66; (1990) 14 Fam LR 293, where the Court said that privacy alone was insufficient, the other element being whether the subpoena was being used for an improper purpose.
The oppression argument arises on the basis that, in substance the trusts appear to be set up by the wife’s father for the purpose of holding his wealth, and do not contain money conferred on the trust by the wife. Whilst a relevant consideration this can, at times, be misleading: many trusts will not contain contributions by the beneficiaries. Indeed, the reason that so many trusts do contain assets settled by a beneficiary is because of the taxation arrangements that people make under contemporary Australian Taxation laws.
In Charman v Charman [2005] EWCA Civ 1606; [2006] 1 WLR 1053; [2005] All ER (D) 298; [2006] 1 Cr App R 55 the English Court of Appeal said:
OPPRESSION
[53] Any civil court asked to order a person to divulge material, whether documentary or oral, in proceedings to which he is not a party must consider whether, as a matter of discretion, the order would be so oppressive upon him as to outweigh the likely value of the material in determination of the case. In this respect I exclude pleas of confidentiality or of privilege which require separate appraisal. In the majority of cases oppression of such weight will scarcely be arguable. But in the present case Mr Singleton does argue that, at least upon Mr Anderson if not also upon Mr Clay, the orders of the judge are so oppressive that they should not have been made.
[54] There is no doubt that in financial proceedings following divorce the “oppression” argument, which of course is available not only to the party to the proceedings who may initially respond to the application but also – and in particular – to the non-party when he appears before the court pursuant to order, will sometimes prevail. A wife’s father, ordered to explain, with documentation, his testamentary intentions towards her, may well be able successfully to invoke it: as in Morgan v. Morgan [1977] Fam 122. A spouse’s wealthy cohabitant, ordered to produce evidence not just as to the support provided by her (or him) to the spouse but as to her (or his) overall resources may be able successfully to invoke it: as in Frary v. Frary above. Even a spouse’s creditor may have a live argument as to oppression which the court must weigh: as in W v. W (Disclosure by Third Party) (1981) 2 FLR 291.
[55] But how strong is such an argument in relation to the trustee of one of the family’s trusts or indeed to a spouse’s accountant? These are professionals, whose personal privacy the proposed orders would in no sense invade. “It must always be borne in mind,” said Lord Blackburn in Letterstedt v. Broers (1884) 9 App. Cas. 371 at 386, “that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate”. Granted that the company of which he is an officer is trustee of a trust of which the beneficiaries are not only the husband and wife but also the children, issue etc, what nevertheless is more obvious than that Mr Anderson should impart such knowledge, and produce such documents in his possession, as are relevant to the debate in court as to the fair outcome of the financial dispute between the settlor (a beneficiary) and his wife (also a beneficiary)? Oppressive upon Mr Anderson and Mr Clay? Why? I cannot understand that point, even when articulated by Mr Singleton.
I am not persuaded that in this case the limited documents sought are an oppressive form of discovery provided restrictions to ensure confidentiality are imposed.
Wife’s right to inspect trust documents
Using the accepted taxonomy of equitable interests, based upon the literal terms of the trust deeds, the wife has a defeasible interest. The husband may have a mere equity, being one of a large number of objects to whom the trustee may, in its unfettered discretion, make appointments.
Dealing briefly with the wife’s potential right to inspect there are two jurisprudential trains of reasoning with respect to the right of a beneficiary to inspect trust documents: one proceeds upon the basis that the beneficiary with a property interest has a right to inspect and the other proceeds upon the basis of the Court’s general discretionary powers to supervise trusts.
Regardless of how the interests of labelled, the parties’ equities are in some respects property interests: see Kennon v Spry [2008] HCA 56 at [78].
However, it is not particularly helpful for the present purposes to simply apply the property label to determine the rights of objects or beneficiaries to inspection of trust documents or to determine the discovery question in that proceeding.
First, the question of whether or not an equity is sufficient to amount to ‘property’ will often depend upon context. This can be seen starkly when one compares the outcomes in Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; (1965) AC 694; (1964) 3 All ER 692; (1964) 3 WLR 963 and Official Receiver In Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, where apparently similar equitable interests were categorized differently depending upon the context of the issue (admittedly a statutory context). This highlights the inherent weakness in the argument that an object or beneficiary’s right to access trust documents is based upon a finding of a proprietary interest.
In most cases labelling the interest as “proprietary” fails to provide an effective basis for determining the question of access to documents. Indeed, even in those cases where such a test is applied, the courts have nonetheless continued to determine the issue on a discretionary basis.
The proprietary test may be helpful in commercial contexts where citizens, at arm’s length, contribute valuable resources to a venture to be governed by a trust structure they agree upon in advance. In the context of family trusts it is common that deeds are struck with a focus upon taxation minimisation and asset protection, which considerations often overshadow almost all other considerations.
As a result, the ‘property’ test for access to trust documents does not appear to be a useful basis upon which to approach disclosure of trust documents, although the nature of the interest will certainly be relevant to the general discretion of the court to supervise the operation of a trust. In this regard the dissenting judgment of Kirby P in Hartigan Nominees Pty Ltd vRydge (1992) 29 NSWLR 405 and the decision in Schmidt v Rosewood Trust Ltd [2003] UKPC 26 are, in my view, to be preferred.
In Schmidt v Rosewood Trust Ltd [2003] UKPC 26 at [54] Lord Walker, in the Privy Council, said:
[54] It will be observed that Kirby P said that for an applicant to have a proprietary right might be sufficient, but was not necessary. In the Board's view it is neither sufficient nor necessary. Since In re Cowin well over a century ago the court has made clear that there may be circumstances (especially of confidentiality) in which even a vested and transmissible beneficial interest is not a sufficient basis for requiring disclosure of trust documents; and In re Londonderry's Settlement and more recent cases have begun to work out in some detail the way in which the court should exercise its discretion in such cases. There are three such areas in which the court may have to form a discretionary judgment: whether a discretionary object (or some other beneficiary with only a remote or wholly defeasible interest) should be granted relief at all; what classes of documents should be disclosed, either completely or in a redacted form; and what safeguards should be imposed (whether by undertakings to the court, arrangements for professional inspection, or otherwise) to limit the use which may be made of documents or information disclosed under the order of the court.
Even on a property analysis in this case, it is clear that the wife has a defeasible interest in the property of the trust in that, under the trust deeds, the wife is a primary beneficiary. Although there has not been, it is said, a distribution to her, that only comes to pass if the trustee exercises a discretion not to make distributions to her. The wife therefore has a significant interest in the trust assets. That she has not been a contributor to those assets makes no difference to the technical analysis of whether she has a property interest. As it seems that decisions have been made to defeat her entitlements (that prima facie arose under the trust deed) she is likely to be permitted to inspect the trust documents.
It may be that there would be family considerations in some cases that may found a discretion not to permit a beneficiary to inspect. This was discussed in the leading authority in New South Wales, Hartigan Nominees Pty Ltd vRydge (1992) 29 NSWLR 405 and again referred to in the Full Court decision in South Australia in Rouse v IOOF Australia Trustees Ltd [1999] SASC 181; (1999) 73 SASR 484. However, on what has been put before me there does not appear to be significant considerations that would tell against the wife, in her own right, being permitted to inspect the documents.
Conclusions
The reality remains that these are trusts that the wife has significant interest in and in which she is one of a relatively small group of primary beneficiaries. As a result, an analysis of the wife’s potential right to inspect does not tell against the discovery sought.
Nothing is before me to show how this would be oppressive beyond that of the husband being potentially becoming aware of details of the trust holdings. To express it this way indicates some of the problems with the argument, namely that it is not, in fact, the holdings of her father, but rather trust holdings by corporate trustees that her father appears to have effective control over, subject to the fiduciary obligations imposed by the trusts.
In these circumstances it does not appear to me to be oppressive that the details of the trust become known and be available for inspection provided that protections are in place to ensure that the husband in this case is not seized of information that he might use for alternative purposes but confined in such a way as to only receive such information as is strictly relevant and as is necessary for him to be aware of.
It is also apparent that the wife’s interests in the trusts could be relevant as property or a financial resource.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 28 November 2014
Key Legal Topics
Areas of Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Discovery
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Injunction
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Costs
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Privilege
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