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Children – Hague convention – order for production of solicitor’s file set aside…

…given its irrelevance to habitual residence

In Sterling [2022] FedCFamC1A 3 (27 January 2022), the Full Court (Austin, Berman & Harper JJ) allowed an appeal from a decision of Williams J.

In this case, a mother had travelled to Germany with the parties’ daughter for a holiday, but then communicated to the father that she would not return to Australia and unsuccessfully sought parenting orders in a German court.

The German court applied the Hague Convention on the Civil Aspects of International Child Abduction and found that the daughter was habitually resident in Australia, and Australian courts had exclusive jurisdiction. The father then successfully applied for orders for the return of the child, for which the father engaged a German lawyer.

Before the child’s return, the father issued parenting proceedings in Australia, where the court scheduled a discrete hearing as to whether the court had jurisdiction pursuant to s111CD of the Family Law Act 1975 (Cth).

In those proceedings, the mother contended that the father had waived privilege to his German solicitors’ file, whereas Williams J ordered that it be produced.

The father appealed, to which the Full Court said (from [23]):

“The application of ss111CD(1)(a), 111CD(1)(b) or 111CD(1)(f) depends upon whether or not the child is habitually resident in either Australia or Germany (…)

[25] Given the singular contentious issue affecting the exercise of Australian jurisdiction was the identification of the child’s place of habitual residence, it begged the question of how the file of the father’s German lawyer could be relevant (…)

[32] As an entirely factual question, the determination of the child’s place of habitual residence could not conceivably be materially influenced by any communication between the father and his German lawyer concerning the prior German proceedings. (…)

[34] Regardless of whether the father waived his legal professional privilege by his conduct, which is another issue by which the parties were distracted, there was no need to compel his surrender of the confidentiality he reposed in the lawyer/client communications.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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