Tuesday, November 14, 2017

Privilege (on privilege) in family law matters **

As set out in earlier posts, and with thanks to the Television Education Network, today’s post considers the above mentioned topic in a ‘vidcast’ at the following link - https://youtu.be/E69HxwaO3A4

As usual, an edited transcript of the presentation for those that cannot (or choose not) to view it is below –

The decision in Nolan (email me if you would like a copy of the judgement) is interesting because former parents-in-law of a spouse actually released all of the material around the estate plan to the former son-in-law, before their lawyer raised that the material might actually be privileged.

When the issue was reviewed, the court held as a general rule, estate planning material of the parents of a couple is privileged. In Nolan however, the court held the parents had already released the information and therefore no privilege attached to it. This is because privilege is the client’s privilege. Once they waive it, that's the end of the discussion.

Another privilege case in the family law space to remember is Kern. As usual, if you would like a copy of the judgement, please email me.

In Kern, the parents had arranged for vacant land to be transferred to their daughter and the son-in-law.

The daughter’s argument during the litigation with the former husband was that clearly the asset had come down ‘her’ side of the family and clearly that needed to come back to her benefit under the family law settlement. Not an amazingly complex argument and one that the court was comfortable to agree with.

Where it started to get somewhat more interesting was that the daughter then argued she and her parents had transferred the land to her for (say) $100,000, when it was actually worth (say) $400,000.

The reason for the transfer being significantly undervalued was to minimise the tax and stamp duty otherwise due and payable. The family court gave the wife the uplift to $400,000.

However, the undervalued transfer breached specific provisions under the stamp duty legislation. So while the court acknowledged the argument and gave an effective benefit under the family law settlement to the wife, the court also immediately sent the matter to the criminal investigations division at the Stamps Office.

Again, generally this information would be protected by privilege. However, as the wife was the one that submitted it into the court, she waived the privilege.

** for the trainspotters, ‘privilege on privilege’ is a line from the Church song ‘Myrrh’ (as I recall it I got an A+ when doing my grade 9 English assignment analysing the lyrics for this song … just sayin’) listen hear (sic) - https://www.youtube.com/watch?v=h6T_BtPSRL0