Sterling & Sterling

Case [2021] FamCA 575

FAMILY COURT OF AUSTRALIA

Sterling & Sterling [2021] FamCA 575

File number(s): MLC 3187 of 2021
Judgment of: WILLIAMS J
Date of judgment: 6 August 2021
Catchwords: FAMILY LAW – PRIVILEGE – Common law principles of waiver – Whether statements made by the father in his affidavit and in his counsel’s summary of argument amount to implied waiver of legal professional privilege – Held implied waiver of privilege.  
Legislation:

Family Law Act 1975 (Cth) ss 111CD, 111CF

Evidence Act 1995 (Cth) s 55

Hague Convention on the Civil Aspects of International Child Abduction 

Cases cited:

Baker v Campbell (1983) 49 ALR 385

Mann v Carnell (1999) 201 CLR 1

Osland v Secretary of the Department of Justice (2008) 234 CLR 275

Pascot & Pascot [2010] FamCA 644
Number of paragraphs: 44
Date of last submissions: 7 June 2021
Date of hearing: 17 May 2021
Place: Melbourne
Counsel for the Applicant: Ms Burt
Solicitor for the Applicant: Nicholes Family Lawyers
Counsel for the Respondent: Ms Dellidis
Solicitor for the Respondent: Melbourne Family Lawyers

ORDERS

MLC 3187 of 2021
BETWEEN:

MR STERLING

Applicant
AND:

MS STERLING

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The solicitors for the mother are granted leave to inspect the father’s German solicitor’s file from the date of instructions to the date of conclusion of instructions.

2.The father do all acts and things to facilitate compliance with the inspection of documents referred to in Order 1 hereof.

3.All extant interim applications are otherwise dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sterling & Sterling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Williams J

  1. On 23 March 2021, the father commenced proceedings in this court seeking parenting orders. On 1 April 2021, the mother filed a Response to the father’s application.

  2. The father seeks that the parties child, X, born in 2019 live in Australia, whereas the mother seeks that X be permitted to live with her in Germany.  The dispute is complicated by reason of proceedings in Germany pertaining to the parenting of the child and an application pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).

  3. The threshold issue for determination is whether this court has jurisdiction pursuant to s 111CD of the Family Law Act 1975 (Cth) to determine the substantive parenting dispute between the parties. That issue is fixed for hearing as a three day trial from 23 August 2021.

  4. By an oral application made on…

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Details
AGLC
Sterling & Sterling [2021] FamCA 575
Case
[2021] FamCA 575
Decision Date

CaseChat Overview and Summary

In the matter of *Sterling & Sterling*, Williams J of the Family Court of Australia considered an application by the mother for leave to inspect the father's German solicitor's file. The dispute arose in the context of parenting orders concerning the parties' child, X, who remained in Germany with the mother. The father had initiated proceedings under the Abduction Convention for X's return to Australia, but later put these proceedings on hold to negotiate an agreement regarding X's living arrangements. The father subsequently signed an agreement in Germany, which he later asserted differed from a draft agreement he had received.

The central legal issue before the court was whether the father had impliedly waived legal professional privilege over communications with his German solicitor. Specifically, the court had to determine if statements made by the father in his affidavit and in his counsel's summary of argument constituted a waiver of privilege, and if so, the scope of that waiver. The father argued that any waiver should be limited to specific advice received on 9 November 2020 concerning the interim agreement and its potential prejudice to his Hague Application, and that the mother's request for the entire file was overly broad and unsupported by authority.

Williams J found that the father had indeed impliedly waived legal professional privilege. The court accepted the mother's submissions that the father had put in issue the nature and efficacy of the legal advice he received from his German lawyer prior to entering into the German orders. The father's affidavit and summary of argument, which explained the rationale for his consent to the German orders and the legal advice underpinning that consent, were found to be inconsistent with the maintenance of confidentiality between himself and his lawyer. These actions constituted a forgoing of his right to keep certain information confidential, thereby amounting to a waiver.

Consequently, the court ordered that the solicitors for the mother be granted leave to inspect the father's German solicitor's file from the date of instructions to the date of conclusion of instructions. The father was ordered to take all necessary steps to facilitate compliance with this inspection. All other extant interim applications were dismissed.

Orders

Orders of the court

MLC 3187 of 2021

BETWEEN:

MR STERLING

Applicant

AND:

MS STERLING

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1. The solicitors for the mother are granted leave to inspect the father’s German solicitor’s file from the date of instructions to the date of conclusion of instructions.

2. The father do all acts and things to facilitate compliance with the inspection of documents referred to in Order 1 hereof.

3. All extant interim applications are otherwise dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

On 17 May 2021, orders were made providing for the mother to file and serve her submissions regarding the father’s waiver of legal professional privilege on or before 31 May 2021. The orders also provided for the father to provide his submissions in respect of alleged waiver of legal professional privilege on or before 7 June 2021. Both parties agreed that the matter would otherwise be determined in chambers and complied with the requisite filing dates. Background The mother is a German citizen and the father is an Australian citizen. They commenced a relationship in Australia in 2013 and married in 2018. X was born in Australia in 2019. On 6 July 2019, the parents travelled to Germany for a holiday. The father returned to Australia on 27 July 2019 when the mother and X remained in Germany. On 17 September 2019, the mother confirmed to the father that she did not wish to return to Australia with X. On 30 September 2019, the mother filed an application in the District Court of C City in Germany, seeking parenting orders for X. Her application was dismissed on 1 October 2019. On 4 October 2019, the father applied under the Abduction Convention to the Australian Central Authority (“ACA”) for the summary return of X to Australia. In December 2019, the father returned to Germany prior to returning to Australia in January 2020. He attempted to persuade the mother to return to Australia, which was unsuccessful. In June 2020, the father informed the ACA that he wished to proceed with his return application and the mother was served with the application in July 2020. By that time the mother and X had been in Germany for a year. On 5 August 2020, the father returned to Germany. On 13 August 2020 orders were made in the Hague application for the father’s application to be listed for hearing on 22 September 2020 and for a guardian ad litem to be appointed for X. The father subsequently left Germany to holiday with his brother in Europe. On 14 September 2020, subsequent to the mother filing a Response to the Hague proceedings, the father put the hearing of his return application “on hold”, ostensibly to propose that the mother returned to Australia “on a trial basis”. Prior to his departure from Australia in December 2020 the father conferred with both his German lawyer, Mr B, and his Australian lawyer, who entered into negotiations with the mother’s and X’s lawyers. In November 2020 he was provided with a draft agreement, which was translated on 7 November 2020 pertaining to X’s living arrangements. The mother asserts that on 8 November 2020 there was an argument between the parents, during which the mother asserts that the father threatened not to sign the draft agreement and instead to pursue his Hague return application. On 8 and 9 November 2020, the father conferred with his German lawyer and on 10 November 2020 the father signed an agreement that provides, amongst other matters, that X resides in Germany. The father now asserts that the signed agreement which he has had translated, differs from the draft agreement which was provided to him. On 19 November 2020, the father conferred with the ACA but no changes were apparently proposed, or made to the signed agreement on behalf of the father.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was further submitted by the husband:(a)that if the court determines that there has been a relevant waiver of legal professional privilege, the wife submissions seek to trawl through the entirety of the father’s German lawyer’s file, from the point of retainer in the hope of catching a metaphorical “fish”. Such an approach is not supported by authority which requires a cautious degree of specificity about the category or categories of documents of which privilege has been waived (Pascot & Pascot [2010] FamCA 644 at [106]);(b)the only possible waiver which the mother can contend is at [38] of the father’s affidavit filed 23 March 2021, where he deposes that on 9 November 2020 he consulted with his German lawyer, as a result of which he “understood that the interim agreement would not prejudice his Hague Application”. Accordingly, the only waiver as to legal advice could be:(i)received by the father on 9 November 2020; and(ii)in relation to any prejudice of the interim agreement to his Hague Application.(c)the submissions of the mother appear to be based on the assertion of associated material waiver, namely, that if the father waived privilege in relation to the advice communicated to him by his lawyer on 9 November 2020, the entire contents of the file must be disclosed, which is an assertion wrong in law;(d)the authorities are clear that the overriding principle of “inconsistency” as referred to in Mann v Carnell should be applied to the scope of the documents to which the waiver applies, as well as to the question of whether there has been a waiver. Discussion and Conclusion The orders sought by father in his Initiating Application, which was supported by his affidavit of 23 March 2021 included parenting orders pertaining to parental responsibility and the child’s living arrangements in Australia. It was not until the hearing on 17 May 2021 that the father sought orders bifurcating the proceedings, so that the court would first determine the issue of jurisdiction. One of the central issues raised by the father in the proceeding before this court, is the validity of the German orders and whether or not he provided an informed consent to the making of the orders. He has cast dispersions on the accuracy of the German orders, his understanding of them and the process leading up to his consent to the orders. I accept the submissions of the mother in relation to the father putting in issue the nature and efficacy of the legal advice he received from his German lawyer, prior to entering into the November orders. It is also apparent that he has attempted to explain the rationale for providing his consent to the German orders and the legal advice which formed the basis of that consent. That is so in both his affidavit of 23 March 2021 at [32]-[41] and his Summary of Argument prepared for the hearing on 17 May 2021. The “act/s of conduct” of the father which in the context of these proceedings amounts to forgoing the right to keep certain information confidential is clearly the statements in his affidavits at the identified paragraphs and the Summary of Argument relied upon by his counsel, both of which are relevant to one of the central issues raised by him. His references to what occurred between himself and his lawyer are clearly inconsistent with the maintenance of confidentiality between the father and his lawyer.

Ratio Decidendi

Legal Principle Established

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