Property – Transactions within the ambit of s 106B were “fraud” …

family law casenotes

… as used in s 125 of the Evidence Act 1995 (NSW) (Client privilege is lost in a case of fraud)

In Antoun [2023] FedCFamC1F 129 (9 March 2023), Riethmuller J heard a wife’s application for property settlement.

The wife alleged that after the husband formed an intention to separate, he embarked on a course of conduct to defeat the wife’s claim. This included removing himself as appointor from five discretionary trusts. The wife sought orders under s 106B and other equitable remedies.

The husband sought to prevent reliance upon certain documents on the basis they were privileged.

Riethmuller J said (from [73]):

“… [T]he wife seeks to rely upon a number of documents prepared by former solicitors for the husband …

( … )


[77] Section 117 and s 118 of the Evidence Act 1995 (NSW) … provide for communications between solicitors and clients to be privileged …

[78] … [T]he privilege provided by the Evidence Act is lost if the document was prepared ‘in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty’ …

[79] Transactions designed to put assets beyond the reach of a spouse in property settlement proceedings were found by Hogan J to be within the ambit of s 125 of the Evidence Act: see Yamada & Bernard [2016] FamCA 977. …

( … )

[81] Prima facie, the documents show that the husband was instructing his solicitors to put in place the various changes in contemplation of ‘leaving his wife around Christmas time’, and choosing his sister as replacement for the husband in the companies and trust as that way the ‘risk is minimal’ … It is clear on the face of these documents that they were prepared in order to effect transactions that the husband ultimately carried out, which the wife seeks to impugn in her Points of Claim. … I am persuaded that the documents fall within the exception set out in s 125 of the Evidence Act.”

The husband’s application was dismissed and the case was transferred to the Complex Financial Proceedings List.


Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). 

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