Sterling & Sterling

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.