Kavan & Mallery & Anor

In the matter of *Kavan & Mallery & Anor*, Judge Altobelli of the Family Court of Australia considered interlocutory issues arising from parenting and property proceedings concerning a de facto relationship. The applicant sought to pursue a claim against the second respondent based on equitable estoppel, and also raised objections to the production of documents via subpoena.

The court was required to determine several legal issues, including whether a will or codicil constituted a confidential communication for the purposes of privilege, whether an adjournment under s.90SM(5) of the *Family Law Act 1975* (Cth) was warranted due to a potential change in the second respondent's financial circumstances arising from a possible alteration of his will, and whether the first respondent possessed a chose in action or merely a bare right in relation to a potential claim under the *Succession Act 2006* (NSW). Furthermore, the court had to consider whether the equitable estoppel claim against the second respondent had sufficient merit to proceed, and whether the court retained jurisdiction over the equitable claim given its accrued jurisdiction and the common substration of facts with the family law claims. The issue of security for costs in relation to the claim against the second respondent was also before the court.

Judge Altobelli reasoned that a will or codicil is not a confidential communication, thus dismissing the objections to the subpoenaed documents. The court found that even a weak claim, provided it was not frivolous or vexatious, was entitled to be heard, and therefore the equitable estoppel claim against the second respondent had merits. The court also determined that it retained accrued jurisdiction over the equitable claim, and it would be unjust to put that jurisdiction in contention. The application for an adjournment was dismissed, and the application for security for costs was to be determined at a future date.

The court ordered the dismissal of the applicant's application filed on 21 February 2013. The second respondent's application filed on 21 March 2013 was dismissed in part, with one aspect to be listed for hearing by submissions. The court also ordered that the second respondent file and serve further evidence regarding security for costs within 14 days, and the applicant file and serve opposing material within 35 days, with written submissions due seven days prior to the hearing date. Objections to subpoenas were dismissed, with costs reserved to the final hearing, except for costs arising from the notice of objection.