Can a Subpoena Break Legal Professional Privilege in Family Law? Naumov & Geissler [2025] FedCFamC1F 132 (28 February 2025)

Background of the Case 

In a property dispute between former de facto partners, the Federal Circuit and Family Court of Australia was asked to determine, among other issues, the enforceability of legal professional privilege over historic legal advice. 

The parties referred to as the de facto wife and de facto husband disputed the date of separation. While the de facto wife claimed the relationship ended in December 2021, the de facto husband alleged separation occurred earlier, in either May 2017 or March 2018. Despite these differing claims, both parties resided in the same property until December 2021 when an Apprehended Violence Order was issued against the de facto husband. A final order was made in mid-2023 for two years, pending an appeal. 

In 2018, the de facto wife brought proceedings for property adjustment under section 90SM of the Family Law Act 1975 (Cth), seeking access to an estate valued at over $20 million, primarily held by the de facto husband via complex trust structures and corporate interests which were later discontinued by consent.  

In January 2025, the de facto husband issued a subpoena to Super & Super Lawyers, her current legal team, seeking access to the complete legal file from Z Lawyers, who acted for her in the discontinued 2018 proceedings. The subpoena sought legal advice, correspondence, draft documents, cost agreements, and court documents related to that earlier matter.  

The de facto wife objected, claiming legal professional privilege under section 119 of the Evidence Act 1995 (Cth). This section protects confidential communications and documents prepared for the dominant purpose of providing legal advice or services. 

Legal Principles 

At the heart of this dispute lies a crucial evidentiary issue: whether legal professional privilege applies to historical advice and documents held by the de facto wife's former legal representatives. 

The critical legal question became whether that privilege had been lost or waived under section 122(2) of the Evidence Act, which states that privilege is lost if the client acts in a way that is inconsistent with maintaining that privilege. 

The de facto husband argued that the de facto wife, by referencing the discontinued proceedings and asserting a reason for their withdrawal (i.e., the intention to resume cohabitation), had effectively waived privilege. He cited the High Court’s decision in Mann v Carnell (1999) 201 CLR 1, which clarified that implied waiver can arise when a party’s conduct such as selective disclosure or making legal advice an issue in the proceedings would make it unfair to maintain privilege. 

Privilege Maintained 

The court found in favour of the de facto wife on the privilege issue. 

It held that the materials in question except those already filed in court were confidential and created for the dominant purpose of providing legal services, and therefore prima facie privileged under section 119. 

Furthermore, the court determined that privilege had not been waived under section 122(2). Although the de facto wife’s conduct referenced the 2018 proceedings and the reason for their discontinuance, this was insufficient to constitute conduct inconsistent with maintaining privilege. The court accepted that merely referring to past litigation or the fact of its discontinuance does not amount to an implied waiver unless the legal advice itself is placed in issue. 

The de facto husband’s arguments were dismissed as speculative, particularly in the absence of any affirmative evidence from him or the corporate respondents as to why the earlier case was withdrawn. 

As a result, the subpoena seeking privileged material from Super & Super Lawyers was not enforced.