NISBET and NICHOLSON - [2021] FCWA 67

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: NISBET and NICHOLSON [2021] FCWA 67
CORAM: SUTHERLAND CJ
HEARD: 7 APRIL 2021
DELIVERED : 16 APRIL 2021
FILE NO/S: PTW 746 of 2018
BETWEEN: MS NISBET
Applicant
AND
MR NICHOLSON
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Disclosure - Waiver of legal professional privilege - Whether legal advice a factor influencing state of mind

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Spashett
Respondent	:	Mr Jones

Solicitors:

Applicant	:	Platinum Legal
Respondent	:	Joss Legal

Case(s) referred to in decision(s):

Australian Agricultural Company Ltd v AMP Lift Ltd [2006] FCA 371
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Ding & Ding (2019) FLC 93-893
Mann v Carnell (1999) 201 CLR 1

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nisbet and Nicholson has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1The trial in these long-running parenting proceedings is listed to commence on 5 July 2021 for five days. In March 2021, the father filed an interim application seeking a number of interim parenting orders, including for the family to participate in a four-day intensive family therapy program with [Dr A] (a program which the mother in fact proposed in early 2020, via her former solicitors, [Law Firm A]). The father’s proposal was put on the basis that the trial in July 2021 would proceed as listed.
2In response, the mother sought orders that the family participate in a (non-intensive) family therapy process with a therapist as agreed, and on the basis that the upcoming trial be vacated and the proceedings transferred to [the City A] Registry of the Family Court of Australia. The father deposed to his concerns about the mother’s bona fides in proposing family therapy, in circumstances where the mother’s solicitor informed the Court in January 2021 that the mother was running a no contact case and was not supportive of family therapy.[1] The father also deposed to the mother reneging on Dr A’s program in 2020.[2]
[1] Father’s affidavit filed 5 March 2021, [12] and [15].
[2] Father’s affidavit filed 5 March 2021, [9] and [10].
3In support of the interim orders sought by her, the mother deposed to the following (in her affidavit filed 5 March 2021, at paragraph [4]):
I understand [the father’s] scepticism raised in his affidavit filed on 5 March 2021 about my proposal to proceed to family therapy. I accept that my previous lawyers, [Law Firm A] wrote to [Dr A] and [the father’s] lawyer regarding the intensive therapy program. I was directed by my lawyer that I had to agree to the appointment of [Dr A]. I was told by my layer (sic) that if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NISBET and NICHOLSON [2021] FCWA 67
Case: [2021] FCWA 67
Decision Date

CaseChat Overview and Summary

The interim application in this case sought to determine whether the mother had waived legal professional privilege over communications with her former solicitor. The mother had deposed to the fact that she had been advised by her former solicitor that she would lose the children if she did not agree to a particular family therapy program. She also deposed to the fact that she had raised concerns with her former solicitor about the family therapy program, which concerns were dismissed. The father sought the mother's waiver of privilege over the Target Documents, which related to the legal advice given to the mother by her former solicitor. The court found that the mother had waived privilege over the Target Documents by putting her state of mind in issue. The mother had referenced the content of the legal advice she had allegedly received, and the instructions she had allegedly given, and in doing so, she had acted in a manner inconsistent with the maintenance of privilege over those communications. The court ordered that the father be permitted to issue a subpoena to the mother's former solicitors for the production of the Target Documents, and that the mother's solicitor be given the first opportunity to inspect the Target Documents to identify any material that remained privileged and to redact or remove that material as appropriate.

Orders