Sterling & Sterling
[2021] FamCA 575
•6 August 2021
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
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.
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”).
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.
By an oral application made on 17 May 2021 at a mention hearing, the mother seeks the production and inspection of the file notes of the father’s solicitor in Germany, Mr B, on the basis that there has been a waiver, either express or implied, by the father of his right to legal professional privilege.
The father opposes the production of his German solicitors file, but if the court determines that the father has waived privilege in relation to the advice communicated to him by his solicitor, the father seeks a limited production of documents to be inspected by the mother. Those documents relate to an agreement which formed the basis of interim orders made 20 November 2020 in Germany.
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.
On 20 November 2020, interim orders were made in the German court in terms of the signed agreement (“the German orders”). On 27 November 2020, the father signed a Residency Form for X and compliance with order 1 of the German orders.
On 1 December 2020, the father returned to Australia. On 30 December 2020, the mother and X flew to Australia, which the father asserts was the last possible date to be compliant with the German orders. The mother and X remained in hotel quarantine in Australia until 14 January 2021.
The mother and X were due to return to Germany on 27 March 2021. Two days prior to the anticipated departure, the father filed an application in this court, asserting he and the mother had possibly reconciled after her arrival in Australia and that X should ultimately live in Australia in a shared care arrangement .
Applicable Law - Waiver
As a general principle, a confidential communication between a lawyer and a client, or the contents of a confidential document prepared for the dominant purpose of providing legal advice, are subject to legal professional privilege. The client is the holder of any privilege and is the only person who can waive the privilege.
Legal professional privilege can be waived by express or implied acts or conduct. It is the maintenance of the confidentiality of the communication by the client that will determine whether the client has waived the privilege, and if so in what form. Waiver is an "act of conduct" which amounts to forgoing the right to keep certain information confidential. The immediate result of waiver is the release or disclosure of information which was formerly protected.
The subjective intention of the holder of privilege does not determine whether the privilege is impliedly waived.
Sections 117-126 of the Evidence Act 1995 (Cth) (“Evidence Act”) applies to legal professional privilege in relation to the tender or admission of documents into evidence. Those sections of the Evidence Act do not apply to the production or inspection of documents, which must be decided according to common law principles.
In this dispute, the mother seeks to inspect the file of the father’s German solicitor, Mr B, and in particular, his file notes of his communications with the father from 16 June 2020. As it is not sought to adduce evidence, but merely to inspect specific material, the issue of waiver of legal professional privilege, and the effect of such waiver, are questions to be decided according to common law principles.
The test for waiver of privilege at common law is set out by the High Court in Mann v Carnell (1999) 201 CLR 1 (“Mann v Carnell”) at [29]:
[29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
In Osland v Secretary of the Department of Justice (2008) 234 CLR 275 (“Osland v Secretary of the Department of Justice”), the High Court stated that the assessment whether there is an inconsistency between the conduct of the privilege holder and the confidentiality which the privilege is meant to protect is:
[45] … to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context of those circumstances … ; and
…
[49] … questions of waiver are matters of fact and degree
The Mother’s written submissions
The written submissions of the mother assert:
(a)the father has quite clearly put in issue the nature and extent of his instructions he gave to his lawyer and the advice he received regarding the German orders;
(b)in his affidavit filed 23 March 2021 at [32-41] he seeks to explain his rationale for providing his consent to the German orders and the legal advice which formed the basis of his consent, deposing:
(i)that his German lawyer’s English was limited;
(ii)through the limited assistance of his German lawyer, he raised a proposal for the mother and X to return to Australia on a “trial basis”, which was why he “put on hold” his Hague return application;
(iii)he sought clarification from his German lawyer about the contents of the agreement prepared by his German lawyer and the mother’s lawyer, as he was concerned it would prejudice his Hague application;
(iv)after consulting with his German lawyer, he understood that the agreement would not prejudice his Hague application;
(v)he “only agreed to the terms of the agreement” in an attempt to reconcile and fix his marriage whilst in Australia and if his marriage could not be saved, determine the ongoing temporary parenting arrangements for X;
(vi)he complained to the ACA that he was “improperly advised” by his German lawyer and felt he had “no choice” but to sign the agreement;
(c)the Summary of Argument dated 8 April 2021 prepared on behalf of the father and tendered to this court on 8 April 2021, expressly:
(i)refers to the father’s evidence that it was the legal advice from his German lawyer upon which he based his consent to the German orders;
(ii)reiterates the father’s evidence as to the nature and content of the legal advice received from his German lawyers.
(d)even if he did not subjectively intend to abandon his privilege, his intentional acts are inconsistent with the maintenance of the confidentiality attaching to his instructions;
(e)the file notes disclosing the father’s lawyer’s version of his instructions and advice will likely have a direct bearing upon issues requiring determination by this Court as part of its assessment regarding:
(i)the bona fides of the father’s Application before this court;
(ii)whether or not the father is in breach of the German Orders and the consequences of same under the 1980 and 1996 Conventions;
(iii)what status to give the German Orders under both Conventions and/or private international law;
(iv)the father’s application to share equal parental responsibility for the child under Australian law, in circumstances where the mother asserts that she has been deceived by the father into travelling to Australia and trapped here in contravention of consent orders he entered into whilst represented by a German lawyer and/or an Australian lawyer;
(v)whether the father can be believed and whether or not he ever intended to comply with the German orders;
(vi)the nature of any orders necessary to secure the child’s best interests including her immediate return to Germany with her mother.
(f)the entitlement to inspection arises to the file notes from 16 June 2020 to date, being the date from which the father asserts he “elected to retain” Mr B, being one of three German lawyers nominated by the German Central Authority.
The Father’s written submissions
The written submissions of the father assert:
(a)the submissions of the mother filed 31 May 2021 concede by implication that the contents of the file of the father’s German lawyer is protected by legal professional privilege;
(b)the importance of legal professional privilege has been consistently emphasised by the High Court for example in Baker v Campbell (1983) 49 ALR 385, at 436-437;
(c)where legal professional privilege can properly be asserted it takes precedence over obligations to provide full and frank disclosure;
(d)there is no issue taken with a summary of applicable law to the waiver of legal professional privilege as referred to in the mother’s submissions;
(e)the father disputes that there is any waiver constituted other than by paragraph [38] of his affidavit filed 23 March 2021;
(f)Central to the matters of “fact and degree” (Osland v Secretary to the Department of Justice) the relevance of the contents of Mr B’s file is limited to paragraph [38] of the father’s affidavit and to the issues before the court at the August hearing, namely the jurisdictional question;
(g)the test for relevance is whether the evidence, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding (s 55 of the Evidence Act);
(h)if the mother cannot demonstrate the relevance of Mr B’s file to the jurisdictional question, as opposed to the German Abduction Convention proceedings or the determination of substantive parenting arrangements, there can be no inconsistency between the father’s evidence and his maintenance of the privileged nature of his communications with Mr B;
(i)there could be no potential unfairness to the mother by the maintenance of the privilege;
(j)the mother’s application for waiver of privilege is premature, in that the issues upon which she submits the file notes will have direct bearing will arise, if at all, only at any subsequent hearing, once the jurisdictional issue has been determined, namely:
(i)the bona fides of the father’s application have no relevance to the issues listed in paragraph 9 of the father’s submissions nor to any jurisdictional question generally;
(ii)the question of whether the father is in breach of the German Orders and the implications of any such breach, are matters of German domestic law which the mother may seek to put to a single joint expert, and are not matters in relation to Mr B’s communications with the father;
(iii)it is even more difficult to conceive how Mr B’s communications with the father could be relevant to the status of the German interim order, which will turn on the application of s 111CF of the Act;
(iv)the father’s application for equal shared parental responsibility will not be determined at the August hearing;
(v)the father’s credit is not relevant to the jurisdictional question;
(vi)it is not clear on what basis the mother could suggest that the communications between Mr B and the mother could be relevant to the nature of the orders which are in the best interests of X;
(k)in relation to her application to the C City District Court, the mother also deposes to having obtained legal advice in Germany, however her communications with her lawyer will not become relevant unless and until the jurisdictional issue has been determined by this Court.
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.
I do not accept the submission of the father that any waiver of legal privilege should be limited to paragraph [38] of his affidavit, pertaining to the advice which he received on 9 November 2020 in relation to any prejudice by the interim agreement to his Hague application. It is apparent from the interim orders sought in Initiating Application that the father at the time of swearing his affidavit, was raising all relevant parenting issues.
It is highly likely that the father did not have any subjective intention to waive privilege, however that is not a relevant matter in determining whether the privilege is impliedly waived.
The submissions of the father in relation to the breadth of the documents sought by the mother are somewhat disingenuous in this regard, given it was the father’s initial application which sought to re-litigate parenting proceedings in relation to the child, notwithstanding the existence of the German orders.
I accept that central to the matters of fact and degree is the relevance of the contents of the file of the father’s solicitor.
Even in the jurisdictional proceedings, according to paragraph 9(b) of the father’s Summary of Argument, the extent to which the German proceedings affect the ability of the court to exercise jurisdiction is governed by s 111CF(2) of the Act, and in this case, the operation of that provision will depend on whether the German proceedings fall within the definition of “corresponding measure” and the question of whether the child is currently habitually resident in Australia.
I agree with the submissions on behalf of the m other that the file note disclosing the father’s lawyer’s version of his instructions and advice will likely have a direct bearing upon what status to give the German orders under both conventions and/or private international law, which is a matter relevant to the jurisdictional issue.
I consider that the circumstances giving rise to the German proceedings are relevant to the jurisdictional proceedings and that the father has impliedly waived legal professional privilege which attached to his German solicitor’s file.
It is appropriate to make orders providing for the mother to inspect that file, including the negotiations leading up to the conclusion of the orders and their translation. I intend to make orders providing for inspection of that file from the date of providing instructions until conclusion of instructions.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 6 August 2021
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