Sterling & Sterling

The appeal in Sterling & Sterling was brought by the father, Mr Sterling, against an order made by the Federal Circuit and Family Court of Australia which required him to produce and inspect his German lawyer’s file from antecedent Hague proceedings. The dispute arose from the parents’ separation and the mother’s application to the German court for parenting orders, which was dismissed when the court found the child to be habitually resident in Australia. The mother subsequently sought to compel the father to produce his German lawyer’s file in the Australian proceedings, which the primary judge ordered. The father appealed this order, arguing that the inspection of his lawyer’s file was not relevant to the factual determination of the child’s place of habitual residence, and that the order’s breadth was erroneous.

The court was required to decide whether the order compelling the production and inspection of the father’s lawyer’s file was appropriate in the circumstances. The court noted that the issue before the primary judge was an entirely factual question of the determination of the child’s place of habitual residence, which could not conceivably be materially influenced by any communication between the father and his lawyer. The court also found that even if there was relevant material in the file, the breadth of the order made by the primary judge was erroneous. The court therefore concluded that the primary judge had erred in making the order.

The court granted leave to appeal and allowed the appeal, setting aside the orders of the primary judge. The court dismissed the mother’s application for the production and inspection of the father’s German lawyer’s file and granted the father a costs certificate in relation to the appeal. The court re-exercised its discretion and dismissed the mother’s application, finding that the inspection of the father’s lawyer’s file was not necessary or appropriate in the circumstances. The court also noted that the father had succeeded on the basis of error of law and that it was appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the father in respect of the costs incurred by him in relation to the appeal.