Fishing Expedition Sunk: Privilege Prevails in Property Battle

📝 Introduction

In the family law dispute Naumov & Geissler [2025] FedCFamC1F 132, the Federal Circuit and Family Court of Australia considered dueling subpoenas—one from a de facto husband seeking privileged legal advice, and others from the de facto wife directed at secured creditors of her former partner’s business group. This judgment by Justice Campton not only reinforces core principles surrounding legal professional privilege but also illustrates the low but significant threshold for subpoena relevance in property disputes.

📌 Facts and Issues

Facts

• The de facto couple, Ms Naumov and Mr Geissler, cohabited from 2007 until a final separation in December 2021. They have two children.
• A property dispute arose over an asset pool valued at over $20 million, predominantly held in trusts controlled by the de facto husband.
• Ms Naumov filed proceedings for property adjustment under s 90SM of the Family Law Act 1975 (Cth) and sought spousal maintenance.
• The husband challenged her right to bring proceedings out of time under s 44(6).
• In 2018, the wife had previously commenced but discontinued similar proceedings.

Key Legal Issues

1. Legal Professional Privilege: Did the de facto wife waive legal professional privilege over documents held by her previous lawyers (Z Lawyers) by referencing her reasons for withdrawing her 2018 application?
2. Relevance and Abuse of Process: Were the subpoenas issued by the de facto wife to B Pty Ltd, C Ltd, and D Ltd an abuse of process or merely a legitimate exercise in financial disclosure?

⚖️ Application of Law

Legal Professional Privilege (Subpoena to Super & Super Lawyers)

• Governing Law: Sections 119 and 122 of the Evidence Act 1995 (Cth) were central. Privilege exists unless waived expressly or impliedly.
• Key Precedent: Mann v Carnell (1999) 201 CLR 1 at [28]–[29] was cited, holding that waiver arises from inconsistency between a party’s conduct and the maintenance of confidentiality.
• Judgment: The Court held that the de facto wife had not acted inconsistently with maintaining privilege. She had not disclosed or relied on legal advice in her affidavit nor made legal advice a foundation of her current claim
• .

Relevance of Subpoenas to Third Parties

• Legal Principle: A subpoena will stand if it has an “apparent relevance” and serves a “legitimate forensic purpose”—a low threshold from Alister v R (1984) 154 CLR 404 and White & Tulloch & White (1995) FLC 92-640.
• Precedents Cited:
• National Employers’ Mutual General Insurance Association v Waind and Hill [1978] 1 NSWLR 372
• Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28]
• Findings:
• The subpoenas sought by Ms Naumov were found relevant to the financial dealings of the trust entities controlled by Mr Geissler.
• The husband’s arguments of "fishing" and "abuse of process" were rejected; the documents could reveal misrepresentations or financial discrepancies pertinent to equitable division
• .

🧠 Judicial Reasoning and Analysis

Why the Judge Decided as They Did

1. No Waiver of Privilege:

• Justice Campton highlighted that the wife did not rely on legal advice to justify her case.
• She didn’t disclose any part of her confidential communications or attempt to leverage advice for credibility.
• Her discontinuance of the 2018 proceedings did not open the door to inspection of her previous solicitor’s file.

1. Subpoena Relevance Justified:

• The documents requested from lenders had clear relevance to the value and structure of the husband's financial interests.
• With trust structures, loan guarantees, and business operations under scrutiny, full financial disclosure was critical.
• The husband's ongoing failure to provide timely financial disclosure added weight to the subpoenas' necessity.

1. Procedural Fairness and Forensic Purpose:

• The Court viewed the wife’s subpoenas as appropriately tied to identifying alternative assets that could satisfy debts or support her claim for specific property (the Suburb F property).
• The husband’s objection lacked substantive grounds beyond disclosure resistance.

📘 Take-Home Lesson

This case is a reminder that:

• Legal professional privilege is robust and not easily displaced; litigants must avoid casually implying reliance on legal advice in pleadings or affidavits.
• Relevance in subpoenas is broadly interpreted—if documents might shed light on financial standing or trust control, they’re likely to be upheld.
• Transparency in financial disclosure is vital in family law property proceedings, especially where complex trust and corporate structures are involved.

Justice Campton's approach reflects a pragmatic application of evidentiary principles to ensure fairness while protecting foundational legal rights.