Joris & Joris
[2025] FedCFamC2F 317
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joris & Joris [2025] FedCFamC2F 317
File number(s): MLC 3841 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – Property – Subpoena objection – Where husband seeks to obtain third party’s will on subpoena – Where third party is a friend of each of the husband and the wife – Where third party has transferred significant assets to the wife – Where each party has, at one stage or another, been appointed power of attorney for third party – Objection by third party’s solicitor – Where objector argues that parties can obtain will under relevant State Power of Attorney legislation – Where objector argues will should not to be used for any purposes other than administration of the affairs of the testator – Where objector seeks to uphold confidentiality – Potential bequests under will found to be relevant to section 79 and 75(2) analysis – Parties granted access to will produced on subpoena. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Powers of Attorney Act 2014 (Vic) ss 134A, B and C
Cases cited: Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 3 March 2025 Place: Melbourne Solicitor for the Applicant: Ms Ettershank, Sterling Walters Lawyers Counsel for the Respondent: Mr Sohota Solicitor for the Respondent: Taylor & Barnes Solicitors Solicitor for the Objector: Mr D, C Law Firm ORDERS
MLC 3841 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JORIS
Applicant
AND: MR JORIS
Respondent
AND C LAW FIRM
Objecting Party
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.The Will of Mr B dated April 2021 (‘the Will’) produced on subpoena be released to the parties to these proceedings, for use in these proceedings only.
2.In respect of the Will, the parties and their legal representatives be and are permitted to inspect and copy the document upon provision of the appropriate undertaking to the Court.
3.Any copy of the Will be destroyed not later than 29 days after the conclusion of the proceedings.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Ms Joris and Mr Joris, and the objector to the production of the will of Mr B, I have determined that it is relevant, necessary and proper that the will of Mr B be produced to the parties in these proceedings for use in these proceedings. In these reasons, the applicant in the proceedings, Ms Joris, will be referred to as ‘the Wife’, the respondent, Mr Joris, will be referred to as ‘the Husband’, and Mr D, as the solicitor who drew and holds the will of Mr B, will be referred to as ‘the Objector’.
Background
The history that is common ground as between the Husband and the Wife in the substantive section 79 of the Family Law Act 1975 (Cth) (‘the Act’) property division, or property alteration proceedings includes the following. The Wife was born in 1965 and is now aged 60. The Husband was born in 1960 and is now aged 65. The parties have three children: Mr E and Mr F and Ms G. Those three adult children are all in their 30s. The parties were married in 1985 and separated in late 2023. They were divorced in late 2023. The section 79 property proceedings were issued by the Wife, and responded to by the Husband. The parties have, sensibly, undertaken joint valuations of various items of property.
The controversy that I have to deal with today revolves around one Mr B, who, it is common ground, is 95, and lives in a nursing home, and does not have capacity to conduct his legal affairs because he suffers dementia. It is common ground, or at least not disputed, that Mr B was diagnosed as suffering dementia at some point in 2023. The Wife alleges that from 2007 until April 2021, she held an enduring power of attorney, where she had been appointed attorney by Mr B. It appears common ground that in April 2021, using the office of Mr D, the Objector, Mr B executed another enduring power of attorney, appointing the Husband as his attorney, and from that point the Wife was no longer the attorney.
With the assistance of the same solicitor, the Objector, it is not disputed that a fortnight later, Mr B made his last will and testament. It is undisputed, if not common ground, that the following year, in or about July 2022, Mr B executed a medical power of attorney, whereby he also appointed the Husband in these proceedings as his attorney for medical decisions. It is common ground that Mr B currently lives in a nursing home and that the Husband assists in the organisation and care of Mr B in that home. At some point in the proceedings, the Husband requested from the Objector the provision of a copy of Mr B’s will. The Objector refused to provide the will on the basis that he had a duty of confidentiality to Mr B as the solicitor who had both prepared and held the will of Mr B.
The objection
The objector refused, and refuses, to provide a copy of the will on three bases. Firstly, the provisions of sections 134A, 134B and 134C of the Powers of Attorney Act 2014 (Vic) are effectively, he says, a code which provide for the manner in which an attorney, under an enduring power of attorney, would obtain a copy of the will. The second basis is that the attorney would only be entitled to obtain a copy of the will, or to refer to it, if that was in the interests of the donor of the power, Mr B, and/or pursuant to those interests in the administration of the affairs of Mr B, and not for the private or other purposes of the attorney. The third ground is that because of the obligation of confidentiality on the solicitor and on the attorney, the Objector, as solicitor, could not knowingly provide a copy of the will for purposes other than those relating to Mr B, and the attorney could not seek out and obtain a copy of the will using the power of attorney for purposes other than the affairs of Mr B.
In those circumstances, regardless of the extent to which those matters were agitated in writing, the Husband issued a subpoena to the Objector to provide a copy of the will of Mr B. The objector did two things. Firstly, as commanded by the subpoena, he produced to the Court, but not to the parties or anyone else, a copy of the will. Secondly, he filed and served (or attempted to file, but served) an objection, pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’), to the production of the will. I will mark the objection with the words ‘objection’ as an exhibit, because the manner of its filing was not clear.
The Notice of Objection included the following:
I give notice that I object to the inspection / copying of some or all of the documents produced for the following reasons: …
1.The requested copy of the current Will of [Mr B] born [in] 1929 is subject to client legal privilege and the client legal privilege is not waived.
2.[Mr B] suffers from dementia and as such does not have capacity to provide instructions to waive the client legal privilege.
3.The document is not to be made available for inspection by any party to the proceedings.
The objection is dated 6 February 2025.
Context for the request to produce the will
The context to the dispute is that it is common ground that the bulk of the property of the Husband and the Wife is held in four different assets – apart from some minor items, such as motor vehicle and, no doubt, contents of homes. Leaving aside second-hand motor vehicles, a motorcycle and furniture, the assets of the Husband and the Wife after 40-odd years of marriage and contribution (and disparate contribution) include the following:
•the former matrimonial home with an agreed value of $590,000, unencumbered; and
•the [H Street] property, agreed to have a value of $1,200,000, unencumbered; and
•the [Town J] property, agreed to have a value of $1 million, that is held as a joint proprietor by the Wife and [Mr B]; and
•superannuation, agreed to have a value of about $750,000.
The motor vehicles are alleged to have a value of approximately $18,500.
The Wife asserts that she should be regarded as only owning 50% of the Town J property. It is common ground that the share of the Town J property was a gift solely to the Wife, not a gift to the Husband and the Wife. In addition, the Wife asserts that she has, and will make, what is known as a ‘Kennon’ claim arising from allegations of assault in late 2024 and previously. The applicant Wife asserts that the property of the parties should be divided 65/35 between them in her favour. She also asserts that there should be a 5% adjustment in her favour on account of her incapacity to work on a full-time basis and/or related to the allegations of violence. It is said that that 5% adjustment, pursuant to section 75(2) of the Act, would result in a division of the parties’ property, 30% to the Husband and 70% to the Wife.
The Husband’s position as to the pool is not dissimilar, save, as I understand it, he asserts that the full value of the Town J property should be taken into account, rather than half, in the circumstances where Mr B is 95 years old, has no capacity to change his will, lives in a nursing home, and will pass away in the not-too-distant future – though no one wishes him harm in the meantime. Otherwise, the Husband’s position is that the parties should be regarded as contributing equally to all of the property of the parties, and, as I understand it, including the Town J property. Further, the Husband then says he should have an adjustment of 5% in his favour, as he is unemployed and is very busy looking after the parties’ youngest adult daughter, who is ill.
It is alleged that the estate of Mr B will likely have about $1.6 million of value. Mr B’s only daughter, Ms K, is 62, and, the Husband alleges, has been estranged. The other personal circumstances of Ms K are not known to me, save that the Wife, who is in regular communication with her, says that Ms K is, in a financial sense, ‘doing fine’ and at neither end of the extremely poor or extremely wealthy spectrum. The Wife does not take a position in regard to the production of the will at all. She neither supports nor opposes the release of the will on subpoena. She says that she does not know what is in the will. The Husband also says he does not know what is in the will.
In the circumstances of it being alleged that there is a substantial estate of Mr B that will be dealt with upon his passing, it is apparent that what that estate is relevant to is this Court’s decision under section 79 of the Act. It may be that Mr B passes away before this Court makes its decision. Hopefully, Mr B remains alive and well until sometime well after this Court makes its decision. In the decision of the Full Court of the Family Court of Australia, White and Tulloch v White (1995) FLC 92-640 (‘White & Tulloch’)[1], the Full Court observed at 82,464:
It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s 75(2) factors, it would be shutting one’s eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.
[1] In Sapir v Sapir (No.2) (1989) FLC 92-047 Young J of the NSW Supreme Court dealt with competing values of an interest in property to fall in to one of the parties upon the passing of a relative.
At 37-037 the CCH Family Law Commentary opines, and I adopt with respect, the following observation:
In De Angelis &De Angelis (2003) FLC ¶93-133 (decided in 1999), Lindenmayer and Finn JJ referred to the finding by the Full Court of the Family Court in White & Tulloch that there is no absolute rule and said (at p 78,246):
16.“However, we think it important to remember that the Court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the Court to have ignored the probability that, in what could well be [a] very short period of time (given the ages of her aunt and mother), the wife could well be the owner of two properties having a combined value of almost the same amount as the value of the parties’ property currently available for distribution, and particularly in circumstances where the husband had been found to have done substantial improvement and maintenance work on both properties?
… We consider that it would have been unjust to the husband to ignore this matter even if it was categorised only as a possibility and not a probability”.
The four-step approach to property proceedings
I have referred the parties to the orthodox four-step analysis in the decision most recently announced in the matter of Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’), where the first step under section 79, once the Court has determined that it is just and equitable to make an order, is as follows.
The first step is to identify all of the property of the parties, including legal and equitable interests. That would include interests as what is known as remainderman under an estate. Hence, whether Mr B survives until after the determination of these proceedings, in the circumstances of it being common ground that he has no capacity to change his will, it is self-evidently clear how the parties having an interest under the will would be relevant to stage one of that orthodox four-step process.
The second step is the issue of contribution pursuant to section 79(4)(a), (b) and (c). At that step, the Court is usually expected to express the parties’ contribution assessments as a percentage. In this case, the Husband asserts it is 50/50 and the Wife asserts it is a position of 65/35 in her favour. A significant matter that that turns on is the issue of the gift. It is self-evident that there may be statements in the will that, if admissible, would be relevant to the weight to be given to that gift as to whether it should be solely in the hands of the Wife as a contribution, or related to both the Husband and Wife.
The third step of that analysis is the prospect of an analysis standing on the door of the Court and looking forward, and applying the matters set out in section 75(2), which are:
Section 75Matters to be taken into consideration in relation to spousal maintenance
…
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
…
In this case, each of the parties’ cases is that there should be a 5% adjustment in his or her favour. In this case, it is relevant that, provided there was no double counting, the prospect (and the certain alleged prospect) of an inheritance is self-evidently a matter that would impact upon the matters described at section 75(2).
As to the fourth step of ensuring it is just and equitable (also known as the how-will-you-do-it? stage) the Wife’s case is that she simply seeks a payment from the Husband and that he can, if he wishes, retain the H Street property. The Husband’s position is that he has not yet nutted out or thought through the consequences of his position.
Will to be released to the parties
It is in those circumstances (and most particularly the common ground circumstance of Mr B being 95 years old and having no capacity to change his will) and the circumstances that, at various times in Mr B’s life, each of the Husband and the Wife has had both the privilege and burden of being his attorney pursuant to an enduring power of attorney that I was satisfied that the will should be produced (or released) to the parties. The fact that each of the Husband and the Wife has, at different points in time, held the office of attorney indicates at least a degree of trust, if not a degree of affection. The same applies to the medical power of attorney.
Hence, I was satisfied that the extent to which the will made express provision for any of the Husband or the Wife or other persons, including Mr B’s only daughter, would be relevant to the section 79 exercise. I was concerned that there may be in the will some very personal observation that did not bear on bequests to either the Husband or the Wife or Ms K. Whilst that was an unlikely circumstance, and such personal observations would more likely be contained within the communications by the testator to the solicitor, I was concerned that, by the engine of relevance to the section 79 property dispute, there be some personal matter contained in the will that the testator would have intended to remain confidential until his death. In those circumstances, after discussion with the parties and there being no objection, and no objection by the Objector, I read the will of Mr B, which has been marked in evidence as the exhibit called ‘the Will’.
Having read the will, and, indeed, this having been confirmed by the Objector, I am satisfied that there is not any of the personal or confidential matters that would or might be contained in a will other than matters that relate to the bequests. There are aspects of the will that Ms K may find personal to her, but that matter relates to a bequest, and I am satisfied, in all of the circumstances, in the interests of justice, balancing the entitlement of Mr B to hold his communications in his will as confidential until his death with the need for this Court to be apprised of, and the parties to the proceedings in this Court to be apprised of, the contents of the will, that the will be produced to the parties. The will is to be produced to the parties on the usual terms, which means that they are not permitted to use the knowledge or contents of it for purposes other than these proceedings.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 March 2025
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