Mcphee Lawyers


13 November 2015

Objection to production of Wife's father's trusts. Husband's right of production prevails – Douglas & Ferris & Anor [2014] FCCA 2785 (19 November 2014)


In Douglas & Ferris & Anor [2014] FCCA 2785 (19 November 2014), the Husband issued a subpoena to the Wife’s father to produce documents with respect to a number of family trusts in which the Wife was a beneficiary. The Wife’s father objected.

Trust Deeds, relevance of the Deeds and privacy and oppression

The first Deed was settled on 1 December 1976 and the second Deed was settled on 18 August 2009. The Deeds were varied.

The Wife, among other family members, is in the ‘Primary Beneficiaries’ class of beneficiaries.

His Honour Judge Reithmuller said at Paragraph 14: –

“There can be little doubt that if the wife has a present interest in significant assets that form the corpus of a trust (subject to the possible defeasance of her interest by determinations of the trustee) that such an interest is arguably a relevant factor for the purpose of ss.75(2) and 79 either in terms of her future property interests or financial resources.”

The Wife’s position with respect to the Trusts was that she had “not disclosed any documents relating to the trusts, saying that she has no documents” and “that the value of the trusts were unknown to her” (para 17). The Wife’s father said that the Wife had “never received a distribution from the trusts” (para 17).

Due to the Wife’s position the Husband was “left to seek the information from others” (para 17).

It was held at Paragraph 28, the subpoena was not a fishing exercise based on the evidence “… the Wife has interests under the trusts as a primary beneficiary”.

As to privacy and oppression, His Honour said at Paragraph 29:-

“…there is a general right of privacy that comes to bear upon discovery questions. Rather, it is a question of relevance to the proceedings and whether or not the discovery sought is fishing or oppressive. An individual’s privacy cannot stand in the way of justice.”

At Paragraph 33, His Honour held, “I am not persuaded that in this case the limited documents sought are an oppressive form of discovery provided restrictions to ensure confidentiality are imposed.”

The Wife’s interests in the trusts could be relevant as property or a financial resource.

His Honour also considered the Wife’s right to inspect the trust documents – for those interested see Paragraphs 34 to 44 of the decision.

Orders were made for the trust documents under subpoena to be produced for inspection by the legal practitioner for the parties but not the parties.

If you have any questions about what is property and financial resources, disclosure, subpoenas or your family law matter, please make an appointment with one of our solicitors.

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