Cristopher & Pelleas [2025] FedCFamC1F 713 | Case summary

Cristopher & Pelleas [2025] FedCFamC1F 713 | Case summary | Zoe

[38]

By Initiating Application filed on 29 July 2024, the applicant husband seeks, by way of final relief, an alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) ("Act"). By Response to Initiating Application filed on 5 September 2024, the respondent wife similarly seeks, by way of final relief, an alteration of interests in property. However, unsurprisingly, they differ as to what that alteration should be.
The husband was born in 1967. The wife was born in 1980. They commenced cohabitation in 2004; they were married in 2005; and they separated on 15 December 2023. There are three children of their marriage, aged 18, 16 and 12 years, and, by agreement, they live and spend time with each of their parents.
It is common ground that the wife is a scion of a very wealthy family and that she has benefitted from the wealth of her family, as have the husband and their children by reason of her being a member of that family. That wealth has its genesis in a group of companies and trusts established by her late father, Mr G, who died in 2009, and her uncle, Mr H, referred to broadly as the "J Group" (albeit that there is some disagreement at this stage in relation to the proper composition of that group). What is not agreed, in these proceedings, is any proprietary interest, or the extent of any financial resource, the wife may have in those companies and trusts, or any of them.
The wife is one of three children of the marriage of her late father and her mother, Ms K; she has two brothers, Mr Land Mr M.
In respect of his financial circumstances, the husband, in his Financial Statement filed contemporaneously with his Initiating Application, deposes to non-superannuation property totalling $850,012; superannuation interests totalling $762,781; and no liabilities.
In respect of her financial circumstances, the wife, in her Financial Statement filed contemporaneously with her Response to Initiating Application, deposes to non‑superannuation property totalling $29,271,318; superannuation interests totalling $4,094,436; liabilities to trusts totalling $7,550,000; and financial resources in trusts totalling $430 (sic).

[40]

Notices of Objection to the trust subpoenas were filed by the recipients thereof (collectively the "subpoenaed trusts") on 13 September 2024, which were amended by them on 29 October 2024, as well as by the wife on 12 September 2024.
Additionally, the husband filed an Application in a Proceeding on 31 October 2024 seeking, inter alia, relevantly for present purposes:
- at paragraph 1 - the appointment of a single expert "to undertake a valuation of the [J Group] (and fiduciaries/subsidiaries) [sic] as at 30 June 2024"; and
- at paragraph 4 - disclosure by the wife of various documents ("disclosure application").
By her Response to Application in a Proceeding filed on 20 December 2024, the wife sought the dismissal, simpliciter, of the husband's Application in a Proceeding, including therefore the disclosure application.
On the return of the husband's Application in a Proceeding and the wife's Response thereto, as well as the various subpoenas and objections thereto, Senior Counsel for the husband advised that he did not then press for an order for the valuation of the "[J Group]", but would await the outcome of those other matters first.
Both prior to, and during the course of, the hearing of the various subpoena objections and the disclosure application, over two days, a number of the documents or categories of documents sought by the husband were resolved between the husband, the wife and the other subpoena objectors, because they were no longer the subject either of pursuit or of objection. Thus, for example, Senior Counsel for the wife advised, without demurral on behalf of the husband, that the documents sought in the disclosure application, and any objections to the disclosure thereof, were no longer in issue for determination by the Court.
Further, Senior Counsel for the wife advised that another Application in a Proceeding, in this instance filed by the wife on 28 October 2024 (in respect of which the husband filed a Response to Application in a Proceeding on 29 November 2024) was no longer pursued by her.
By reason of the various concessions, at the conclusion of the hearing, I ordered the husband, the wife and the other subpoena objectors to provide an agreed schedule of which documents in which subpoenas, continued to be pressed by the husband and which of the grounds of objection thereto continue to be pressed by the wife and/or the other objectors ("agreed schedule"). The agreed schedule was subsequently provided under cover of an email to my chambers dated 17 March 2025 which advised that the remaining "matters for determination" are as follows:

[56]

Accordingly, the J Holdings Pty Ltd subpoena and the J Holdings Pty Ltd objection are no longer live issues for determination.
In respect of the F Bank subpoena, production of all of the documents specified therein remains pressed by the husband and opposed by the wife.
In relation to the trust subpoenas, in respect of which only the documents specified in paragraph 3 of the schedule in Part C remain in issue, it is nevertheless salient to observe that the other categories of documents, in relation to which it is no longer necessary to rule, comprised:
- all company taxation returns and annual accounts for the company for the financial years ended 30 June 2007 to 30 June 2023;
- all trust deeds and any deed of variation of any trust of which any of that company is the trustee;
- all resolution of directors and/or minute books relating to the meeting of the members and directors of any of the company including minutes of meetings required to be kept by it (in its own capacity and/or in its capacity as trustee of a trust) in relation to distributions, advances, drawings on loan accounts with respect to the wife, the Pelleas Family Trust 2 and/or the N Trust for the period 1 January 2007 to date;
- all loan account ledgers in the name of the wife, the Pelleas Family Trust 2; and/or the N Trust for the period 1 January 2007 to date.
Therefore, it is not the case that the husband has not been provided by the wife with any of the documents sought by him in the disclosure application or by the subpoenaed trusts with any of the documents sought in the relevant subpoenas. Some documents have been provided by the wife or the subpoenaed trusts, whilst other documents are not pressed by the husband.
The grounds of objection to production of the documents specified in paragraph 3 of the schedule in Part C of the trust subpoenas, by the recipients thereof, include that production of the document is oppressive; that there is no legitimate forensic purpose for seeking the documents; and that the subpoenas are an abuse of process in that they were filed on an improper basis.
In the case of the wife, her grounds of objection are on the basis of lack of apparent relevance of the documents sought to the proceedings; that the trust subpoenas were issued for an ulterior and/or improper purpose; and that they are an abuse of process, are oppressive and/or constitute fishing.
In relation to the F Bank subpoena, she objects on the same bases as she does to the trust subpoenas.

[73]

The P Street property secures the borrowings by the Pelleas Family Trust 1 (implicitly, by its corporate trustee, D Pty Ltd), in respect of which the wife is "a personal guarantor" (emphasis added), from which it is implicit there are other guarantors, personal or otherwise.
Whilst in Part O of her Financial Statement, the wife deposes, in respect of items no. 21 and 46, that the Pelleas Family Trust 1 has "facilitated a loan from [F Bank]" (emphasis added) for construction purposes, at paragraph 12 of her affidavit, she instead deposes that the Pelleas Family Trust 1 "drew down on its [F Bank] loan facility" to finance the construction at the P Street property, and then on-lent those moneys to her. On their face, those two assertions by the wife are contradictory. Is there, in this regard, a stand-alone loan from F Bank to the Pelleas Family Trust 1 or did the trust draw down on an existing facility? Is the P Street property stand-alone security for a stand-alone loan, or has it been subsumed into, and/or cross-collateralised with, the securities for the Pelleas Family Trust 1's F Bank loan facility more generally? At this stage, the Court and the husband are left to wonder.
Further, insofar as the wife deposes that, although "the loan" is not in her personal name, she is personally liable for it, presumably that is by reason of her being a guarantor for it, in which case the Pelleas Family Trust 1 (by its trustee) is primarily liable for it. If, rather than a stand-alone loan, there was a drawing on an existing F Bank facility of the Pelleas Family Trust 1, it is difficult to understand how the wife could only be liable to that financial institution for only a portion thereof.
These are but some of the questions raised by the prima facie inconsistencies in the wife's evidence to date.
In the circumstances, on the basis of the wife's own case, her objection to production of the documents sought in the F Bank subpoena is difficult, if not impossible, to comprehend. The documents clearly have relevance, and not even mere apparent relevance, to the parties' competing s 79 applications; no ulterior and/or improper purpose has been demonstrated by her or is otherwise discernible; and it is not at all clear how the documents are, or could possibly be, asserted to be an abuse of process or oppressive or to constitute fishing, as those bases for objection are properly understood.
In the circumstances, the wife's F Bank subpoena objection will be dismissed and any documents produced by F Bank will be released for inspection and copying.

[148]

Clause 4.4.5 provides for Group Funded Transfers and cl 4.4.6 provides a valuation mechanism "[f]or the purpose of determining the consideration to be given to a Transferring Interest". However, it must be recalled that:
- a transfer pursuant to cl. 4.4.1 is subject to J Holdings Pty Ltd Board consent (with such consent not to be unreasonably withheld); and
- a Group Funded Exit pursuant to cl. 4.4.4 is subject to J Holdings Pty Ltd both:
  - using its best endeavours; and
  - acting reasonably, determining by Special Majority Vote that the Group Funded Exit will not have a Material Adverse Effect on the Group.
It is therefore apparent that there is no legally enforceable right to a transfer. Further, to the extent that the terms of the Family Agreement conflict are at odds with the discretions conferred on various trustees of trusts under their respective trust deeds, the terms of the Family Agreement are to be read down and rendered subordinate to the discretions conferred on the trustees under the trust deeds, which are not to be fettered or affected, save that, in exercising their discretions, the trustees are to have regard to the terms of the Family Agreement and the Family Charter as expressions of wishes of the other parties to the family agreement.
In the circumstances, for present purposes, the provisions of the Deed of Wishes, the Family Charter and the Family Agreement, are merely precatory, and aspirational in nature, and do not in any way derogate from, or fetter, the discretions of the trustees of the Pelleas Family Trust 1, the E Trust, the B Global Trust or the Pelleas C Family Trust. Similarly, they do not in any way augment or enlarge the wife's mere dual rights to due administration and due consideration, which I consider below.
Further, insofar as the husband has an application pending, which he does not presently press, for a valuation of "the [J Group] (and fiduciaries/subsidiaries)" (sic), it is not at all apparent how, or why, the particular documents sought in paragraph 3 of the schedule in Part C of each of the four trust subpoenas, in relation only to those particular trusts, would have, at least, apparent relevance to that undertaking. Whilst it may be that there have been representations, including to the predecessor of F Bank (namely, R Bank), that the wife "personally controls trusts that have an effective ownership to 1/4th of the [Pelleas] Family Interests in the [J] Group", such that the "trusts that the wife controls effectively have a 1/8th ownership in the Group" (exhibit H2), that is not to the point in considering the subpoena objections to the four specific trust subpoenas.

[149]

The husband's amended Points of Claim focus, more broadly, on the "[J Group]", which he contends is comprised of "[t]he business and investments now jointly owned and/or controlled by the [Pelleas] and [H] families [and] include the [J business], the [BB business], the [CC business], the [DD business] and various real property and financial investments" (paragraph 10), albeit that the wife denies that definition corresponds with the definition in the Family Agreement or that it has any legal meaning.
The husband contends that the assets held by the J Group are "Group Assets", which are "controlled and managed by trusts and companies which have been formed over a number of years to meet the objectives of the [Pelleas] and [H] families", which he defines as "Group Entities" (paragraphs 10-12).
The husband further contends that J Holdings Pty Ltd was incorporated in 2005 "as the first step in implementing a structured approach to supporting estate and succession planning for the "Family Group", being "the individual members of the [Pelleas] and [H] families and the Group entities collectively", and is "the sole shareholder of the companies which control the Group Entities and the guardian and/or appointor of most of the trusts that own the Group Assets" (paragraphs 13-15).
It is important to recall that the objections to the J Holdings Pty Ltd subpoena are no longer pressed and to note that J Holdings Pty Ltd is not a shareholder of the corporate trustees, nor the guardian or appointor, of any of the subpoenaed trusts.
Paragraph 17 specifies some of the Group Entities in the J Group of which J Holdings Pty Ltd is the 100 per cent shareholder. None of the eight companies listed therein are the corporate trustees of any of the subpoenaed trusts.
Paragraph 30 lists 24 companies and trusts which are alleged to be "part of the [J Group]", amongst which are included the four subpoenaed trusts.
Paragraph 32 lists 10 trusts, including the four subpoenaed trusts, of which the wife is a co‑appointor and beneficiary, although the nature of her alleged beneficial interest is not specified. In Tibben & Tibben [2013] FamCAFC 145 at [21], Thackray J said:

[151]

It is entirely unclear why, of those 10 trusts, only the four subpoenaed trusts are contended to be relevant. That is not illuminated by paragraph 33 which lists four companies of which the wife is a joint shareholder with her mother and her brother Mr L, in circumstances where only three of those companies are trustees of the subpoenaed trusts.
The husband's amended Points of Claim then address what is contended to be the "structure of the [J Group]" (at paragraphs 38-71), including by reason of the Family Charter and the Family Agreement, but, again, without addressing the particular relevance of the four subpoenaed trusts thereto, and without addressing the fact, referred to above, that those two documents do not fetter the discretion of the trustees of those trusts and are subordinate thereto.
Insofar as the husband refers (at paragraphs 68-70) to the "Distribution Policy" of the J Group, nowhere does he address the apparent relevance thereof only to the four subpoenaed trusts. It will be recalled that, by reason of the withdrawal of the Notices of Objection to the J Holdings Pty Ltd subpoena, and in relation to the documents in the four trust subpoenas other than those in paragraph 3 of the schedule in Part C thereof, as well as the withdrawal of the wife's opposition to the disclosure application, the husband will have documents evidencing and/or relating to distributions made to the wife, directly and indirectly. Indeed, this is borne out by paragraph 76(a) which contends that, "[d]uring the period of the parties' marriage ... [d]ividends, distributions or monies from the [J Group] financial resources were paid directly or indirectly to or for the benefit of the Wife", which is in part admitted by her. However, insofar as it is contended that the wife "has not repaid any of these funds", one is left to wonder why, given their nature, dividends or distributions would be repaid by the wife, and the relevance of that contention, at least in this respect.
The husband therefore contends (and the wife denies) that:
- in the premises, the property of the wife for the purpose of s 79 of the Act includes "the bundle of rights and/or legally sanctioned powers she holds in relation to the [J Group] both directly and through [U Pty Ltd]" (paragraph 77);
- further or alternatively, the property of the wife for the purpose of s 79 of the Act includes certain personal equities (paragraph 78);
- further or alternatively, the wife holds property interests in relation to the J Group being "equitable choses in action to the due administration of and due consideration as a discretionary object" of at least 11 trusts, only four of which are the subpoenaed trusts (paragraph 79);
- the wife's interest in the J Group is able to be valued (paragraph 80); and
- the value of the wife's interest in the J Group is a function of the value of the Group Assets so that the value of her interest may be calculated only by calculating the value of the Group Assets (paragraph 81).
However, as discussed herein, these reasons for judgment deal only with the remainder of the Notices of Objection to the four trusts subpoenas.

[154]

...

The contention that a subpoena is an abuse of process usually rests on the underlying assertion that it has no "legitimate forensic purpose", for example, because it is "fishing". The question of apparent relevance in turn often, if not usually, underpins debates about legitimate forensic purpose and allegations of "fishing". The primary contention of the third parties was that the documents sought in the impugned paragraphs lacked any apparent relevance to the issues in the proceedings.

The concept of "apparent relevance" in relation to subpoenas is of long standing. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90 at 103, Beaumont J used the expression in posing the question of whether the material sough has "apparent relevance to the issues in the principle proceedings". Numerous later cases have adopted the same or similar phraseology: Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [20]-[24]; Lowery v Insurance Australia Ltd [2015] NSWCA 303; (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] ("on the cards"); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] ("sufficient apparent connection"). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained "apparent relevance" as meaning something could "reasonably be expected" to "throw light" on some of the issues in the proceedings (see most recently in this Court Woodcock & Woodcock [2021] FedCFamC1F 88; (2021) 64 Fam LR 489 at [48] ("Woodcock").

The indeterminate boundaries of these verbal formulations are obvious, but it is recognised they have a wide embrace and often include documents about which the issuing party cannot have clear knowledge as to content or actual relevance. Recently, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 in the NSW Court of Appeal, Bell P (as he then was) observed at [57] that the apparent relevance of documents is "one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, even though it will not be known or knowable ex ante whether or not the subpoenaed material, will, or is likely to, assist the party issuing the subpoena". He held that to insist on such an added requirement is artificial because it would require an issuing party to be able to predict the contents of potentially relevant documents and would "unduly constrain the ability of litigants to investigate the facts", citing the decision of Brereton J in A v Z [2007] NSWSC 899; (2007) 212 FLR 255 at 257. Therefore, so long as a subpoena can plausibly be seen to relate to an issue in the proceedings (or to "cast light" on such an issue), and the subpoena is not in other respects too vague or oppressive, it should not be set aside.

Bell P pointed out the close connection between "apparent relevance" and a proper forensic purpose at [65]:

[165]

That is a right of the trustee; however, it does not create a right, directly or indirectly, of an eligible object (i.e. general beneficiary) in relation to the trust fund. See Shaw & Shaw [1989] FamCA 29; (1989) FLC 92-030 at p.77,416.
Senior Counsel for the husband was unable to point to any authorities, whether in this Court, at first instance or on appeal, or in any other court, where there has been a valuation of (at least) the right to due consideration, let alone acceptance of such a valuation. It will be observed that, at [78], French CJ did not suggest that a valuation might not be beyond the actuarial arts in relation to the right to due administration.
It is trite to observe that the Court does not require expert evidence to establish that most property, including, for example, most commonly in this Court, real estate or a business, is capable of valuation. However, in Kennon v Spry at [78], French CJ, observing that it is difficult to put a value on either of the dual rights, speculated that a valuation might not be beyond the actuarial arts in relation to the right to due consideration (without reference to the right to due administration).
In the absence of evidence from an expert, whether an actuary or otherwise, that the right, at least, to due consideration, is actually capable of valuation and, if so, what information is required to undertake such a valuation, it is difficult to see what is the apparent relevance of the documents sought in paragraph 3 of the schedule in Part C to each of the four relevant J subpoenas, especially in relation to his foreshadowed valuation more broadly of the "[J Group] (and fiduciaries/subsidiaries)". This is especially so when regard is had to the fact that objection is no longer pressed for the production and inspection of the documents sought in paragraphs 5 and 6 of the schedule in Part C, namely:
- all resolution of directors and/or minute books relating to the meeting of the members and directors of each relevant company, including minutes of meetings required to be kept by that company (in its own capacity and/or in its capacity as trustee of any trust) in relation to distributions, advances, drawings on loan accounts with respect to the wife, the Pelleas Family Trust 2 and/or the N Trust for the financial years ended 30 June 2013-30 June 2023; and
- all loan account ledgers in the name of the wife, the Pelleas Family Trust 2 and/or the N Trust for that period.
I observe, parenthetically, that it is not disputed that the Pelleas Family Trust 2 and the N Trust are trusts controlled by one or both of the parties to the marriage.
Thus, if there have been distributions (implicitly, of income and/or capital), advances or drawings on loan accounts with respect to the wife, the Pelleas Family Trust 2 and/or the N Trust, and/or loan account ledgers in their names, in the relevant period, by reason of the withdrawal of the objections thereto, such documents will have been provided to the husband in compliance with the trust subpoenas. Notwithstanding the husband's amended points of claim, written submissions and the oral submissions of Senior Counsel on his behalf, the following question remains unanswered satisfactorily: why, in circumstances where the wife is, relevantly, only an eligible object of the four trusts, and does not control them, are the further documents, being those sought in paragraph 3 of the schedule in Part C of the trust subpoenas, of apparent relevance generally and, more particularly, to any valuation of the J Group?
Given that the husband will have the information contained in the documents sought in paragraphs 5 and 6 of the schedule in Part C, there is no evidence as to how the further documents contained in paragraph 3 of that schedule have any apparent relevance to any valuation of the wife's equitable chose in action, constituted by her right to due consideration. In the absence of such evidence, how is it contended that those documents have apparent relevance, including to the proposed valuation exercise which is proposed to be undertaken in relation to the J Group and not merely the four subpoenaed trusts?
Without such expert evidence, it is difficult to understand the apparent relevance of the documents sought in paragraph 3 of the schedule in Part C of each of the trusts subpoenas and, weight is lent to the other inter-related grounds of objection to those subpoenas, in particular, fishing.
I am cognisant that there is a divergence in first instance decisions in this Court regarding rights to due consideration (and due administration) of trusts and the valuation thereof, and subpoenas for the purposes thereof. See, for example, Woodcock & Woodcock [2021] FedCFamC1F 88; (2021) 64 Fam LR 489; Woodcock & Woodcock (No 6) [2024] FedCFamC1F 333; and Chang & Song [2023] FedCFamC1F 387.
In Woodcock & Woodcock, on a review of a decision of a registrar, Wilson J dismissed the objections of a spouse party and various subpoena objectors, being the trustees of various trusts, and required the documents the subject of the objections to be produced by the subpoena objectors and released for inspection and copying. Subsequently, in Woodcock & Woodcock (No 6), Wilson J ordered the production of further documents by the trustees to the wife's adversarial actuarial expert to complete his valuation of the dual choses in action. Unlike in the present case, in the latter Woodcock decision, there was some evidence from an expert retained by the wife. In this case, there is none, which I consider to be sufficient to distinguish this case and, indeed, to result in a different outcome.
Notwithstanding the decisions of Wilson J, and with respect to his Honour, in the present case, I consider the absence of any evidence that the wife's equitable chose in action constituted by the right to due consideration (and, possibly, also due administration) is, in fact, capable of valuation and, if so, what documents are required, and why, precludes the establishment of any apparent relevance of the remaining class of documents in dispute in the trust subpoenas. However, that is not the end of the matter.

[172]

That submission is borne out by the analysis above of the trust deeds of the subpoenaed trusts and the other constituent documents upon which the husband relies.
Further, at a subsequent hearing on 12 November 2024, Senior Counsel for the wife conceded that it is "uncontroversial that [her] client has a significant financial resource in her family" (transcript 12 November 2024, p.16, lines 33-34).
Whether or not, either in relation to the four subpoenaed trusts only, or the so-called "[J Group]" more broadly, the wife has a proprietary interest (as the husband contends) or a financial resource (as she contends), the husband does not seek to enlarge the property available for division between the wife and him; rather, he merely seeks to enlarge the share he receives of the relatively uncontroversial, but nevertheless apparently very substantial, pool by reason of that other property or, indeed, financial resource.
It will be recalled that, by reason of s 79(4)(e) of the Act, as it previously stood, the matters referred to in s 75(2), were imported into s 79 insofar as they were relevant. They included, by paragraph (b), "the income, property and financial resources of each of the parties". Section 79(5)(c) now similarly provides that the Court is to take into account those matters, insofar as they are relevant.
Further, insofar as s 79(3)(a)(i) now provides that, in considering what order (if any) should be made under that section in property settlement proceedings, the court is to identify the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them, there is no statutory requirement, in each and every case, to value all of that property, certainly if that property is only sought to be taken into account pursuant to s 79(5)(c). If property is only to be taken into account under that provision, I consider there may be little, if any, substantive reason to draw a distinction with financial resources.
In Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39], the Full Court said, as a general proposition, that:

[179]

His Honour did not make a specific finding as to the value of the Trust, or of the husband's interest therein. That failure was a matter of complaint by the wife on the appeal, it being raised specifically as ground 1(i) of the amended notice of appeal which the wife's senior counsel sought and was granted leave to rely upon at the outset of the hearing of the appeal.

The husband's shareholding in Latimer Investments was and is property of the husband. However, as that company is merely a trustee, does not trade, and has no beneficial interest in any property which it holds, that shareholding is of purely nominal value and is of no relevance to these proceedings.

As a potential beneficiary and therefore an object of the Trust, the husband has a right to call upon the trustee (in this case Latimer Investments) to deal with the trust fund in a manner appropriate to the due administration of the Trust, and that right is an equitable chose in action which is itself ``property'' in the strict sense. On the other hand, he has no interest, vested or contingent, in the trust fund itself, nor in any specific share thereof nor in any particular asset of the Trust: see Hardingham and Baxt, Discretionary Trusts, 2nd ed., para. 605, 609 and 614 and cases there cited. Thus, unless the Trust was the husband's alter ego or his ``puppet'' (Ascot Investments Pty. Ltd. v. Harper and Harper (1981) FLC 91-000 at pp. 76,061-76,062; (1981) 6 Fam. L.R. 591 at p. 602 per Gibbs J.; Ashton and Ashton [1986] FamCA 20; (1986) FLC 91-777; (1987) 11 Fam. L.R. 457; Stein and Stein [1986] FamCA 27; (1986) FLC 91-779; (1987) 11 Fam. L.R. 353) the only ``property'' of the husband which was of any relevance in the proceedings before his Honour (so far as Latimer Investments and the Trust were concerned) was his equitable chose in action, arising as an object of the Trust, to compel the due administration of the Trust. The inherent difficulties of valuing such an intangible species of property, if not readily self-evident, become evident when reference is made to the reports of the various expert valuers who gave evidence in the case and to the varying methods by which they attempted to arrive at such a value.

[189]

155. In the present case, there was no evidence presented to the primary judge as to what the value of such a right to "due consideration and due administration" would be. In the absence of evidence of any such value of the interest held by the first respondent, the primary judge, appropriately, in our view, excluded the trust property from the property pool but had regard to the trust assets as being a significant financial resource available to the first respondent. No error has been demonstrated on the part of the primary judge in taking that approach. In that respect, in Shaw and Shaw [1989] FamCA 29; (1989) FLC 92-030 at 77,420, the Full Court said there was "a degree of artificiality about attempting to assign a monetary value" to a financial resource in circumstances where it was not possible to identify future events or decisions that would result in the financial resource being accessed by the party. A similar view was expressed by Aldridge J in Raine & Creed [2013] FamCA 362 at [33].

156. For completeness, we make it clear that this case is not analogous to the facts of Kennon v Spry and we caution against giving the principles adumbrated in that case a legend beyond what were described as the "unusual circumstances" of that case (per Kiefel J at [237] and French CJ at [62]). The surrounding circumstances in Kennon v Spry included that the purpose and intent of the trust, created by Dr Spry, was to avoid an obligation to pay land tax. The 1983 instrument creating the trust "was designed to ensure that the Toorak property was not, for land purposes, aggregated with other properties owned personally by the husband" (per Gummow and Hayne JJ at [107]). Moreover, the structure of the trust was, as noted by French CJ at [62], such that Dr Spry was "the sole trustee of a discretionary family trust and the person with the only interest in those assets as well as the holder of a power, inter alia, to appoint them entirely to his wife."

157. Those circumstances, together with Dr Spry's power to appoint "the whole of the property to his wife", lead to the conclusion by French CJ and, in their separate judgment, Gummow and Hayne JJ that, once the deed removing the wife as a beneficiary of the trust was set aside pursuant to s 106B of the Act, the primary judge had, in the unique circumstances of the case, appropriately included the assets of the relevant trust in the matrimonial property pool as being the property of "the parties to the marriage or either of them" (Gummow and Hayne JJ at [128]).

158. In the present case, the setting aside of the Deed would have resulted in the first respondent remaining as the appointor with the power to appoint the trustee pursuant to the terms of the trust deed of the Winnie Family Trust. However, unlike the situation in Kennon v Spry, she would not have had the power of distribution of trust assets, nor would she have had legal title to those trust assets. Moreover, any person or entity that she appointed as trustee would have been bound by their fiduciary duty owed to all other beneficiaries. Accordingly, the appellant's reliance upon the "unusual circumstances" of Kennon v Spry (per French CJ at [62]) as being analogous to the facts of this case is, with respect, misplaced. There was, in our view, no basis for including the property vested in the third respondent as trustee for the Winnie Family Trust in the property pool of the parties to the marriage, and no error has been demonstrated on the part of the primary judge for not including the assets as such.

159. For these reasons, there is no need to consider issues relating to the valuation of the property vested in the third respondent as trustee for the Winnie Family Trust or the disbursement of funds from that trust. This is because to do so would equate the first respondent's right to due consideration as a beneficiary as being equivalent to the value of the entire trust property. For reasons which we have explained, the primary judge would have been, in our opinion, in error had he done so.

[190]

Even if the wife does have some proprietary interest in, or claim to, the trusts the subject of the trusts subpoenas, the Court has a discretion to exclude property from the asset pool available for division between spouse parties. See, for example, Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490 at [226]-[228].
In the circumstances as analysed above, and where the husband does not seek to alter the parties' interests in property beyond the uncontroversial property (save as to value) referred to above, I consider that there is no contradiction between the observation of French CJ in Kennon v Spry at [78], that it is difficult to put a value on either of the dual rights, albeit that a "valuation might not be beyond the actuarial arts" in relation to the right to due consideration, and the observation of the Full Court in Shaw & Shaw that there is "a degree of artificiality about attempting to assign a monetary value to such an intangible species of property". Rather, what the Court should be more concerned to ascertain is whether the subpoenaed trusts are a significant financial resource of the wife, in order to gain an appreciation of the extent to which she might reasonably expect to receive benefits from them in the future.
The relevance, and utility, of valuing an eligible object's right to due consideration (and, possibly, administration), which were held by French J in Kennon v Spry to be "in the nature of" equitable choses in action, was considered by Murphy J in Kelton & Brady and Anor [2017] FamCAFC 186; (2017) FLC 93-799. In that case, the husband had issued a subpoena to an accountant for the production of a number of documents relating to a discretionary trust, of which the wife was, along with her mother and her sister, one of three "principal beneficiaries" and they were the three "default beneficiaries".
No objection was taken to production of the trust deeds or any amending deeds; however, as in the present case, objection was taken to production of the financial accounts, including the balance sheet and profit and loss statements, and any associated notes for the Trust, for the specified period.
The primary judge upheld the objection and set aside the relevant paragraph of the schedule to the subpoena on the grounds of lack of apparent relevance and fishing. The husband sought leave to appeal, in the course of which, by Notice of Contention, leave was granted to the subpoenaed person also to rely upon the ground of oppression, "not in the sense of production being overly burdensome but in the sense of infringing upon the privacy and rights of a stranger to the action (the wife's mother)" (at paragraph 13).
Murphy J said at [38]:

[209]

Whether or not documents the subject of a subpoena have apparent relevance is not a binary exercise; it is a question of degree, and will vary from case to case, turning on the facts of the particular case. In this case, the husband could have adduced evidence of any alleged contribution by him (or, indeed, the wife) to the subpoenaed trusts and/or the J Group; however, he failed to do so. As the Full Court said in White & Tulloch v White, there must be a worthwhile connection between a specific element of the husband's case and the four trusts, the subject of the trusts subpoenas or, more broadly, the so-called "[J Group]". I do not consider such a connection to have been established in the present case.
In Caldwell & Caldwell [2025] FedCFamC1F 506, there was an application by the wife for a declaration that certain discretionary trusts and/or the assets of the trusts were property of the parties to the marriage or either of them within the meaning of s 79 of the Act. It was uncontentious that the property of the husband and wife or either of them, outside the trusts, was substantial, with an estimated value of approximately $16 million-$22 million. The husband conceded that the trusts' assets represented a financial resource to him, for the purposes of s 79 of the Act, as does the wife in the present case.
Carew J said at [217]-[221]:
1. Whether trust assets are property of a husband and/or wife within the meaning of s 79 depends on the circumstances of case. In particular, it may depend on the terms of any trust deed, the purpose of the trust, the origin of the trust assets, whether a spouse-party has control of the trust, whether that party has the power to distribute capital to one or other of the spouse-parties, the history of any dealings of trust property, and whether but for the trust, the property would unquestionably be the property of the spouse-party or spouse-parties. However, without the control of the trustee, whether direct or indirect, and a power to benefit by distributions one or other of the spouse-parties, there is little prospect, if any, of successfully arguing the trust assets are property for the purposes of s 79.
2. Statements relied upon by the wife from selective parts of Kennon v Spry, which she contends support her contention that all she has to establish is control and power to benefit, must be seen in the context of what was repeatedly described in that case as the "unusual circumstances". Those unusual circumstances included the creation of a trust to which the spouse-parties had contributed throughout their long marriage, that its purpose was to provide a tax effective means of providing the living and other expenses of the spouses and their children, that the trust assets included the former matrimonial home, that the husband as the trustee held the legal title to the trust assets, that (after the setting aside of certain instruments) the husband had the power to distribute the whole of the trust assets to the wife which would not have been inconsistent with the purpose of the trust, that the trust assets (but for the trust) would unquestionably have been property of the parties or either of them. Such matters inform the determination of whether the trusts and/or trust assets are property within the meaning of s 79 and not, as submitted by the wife, matters to be considered only when exercising the discretion of what property order, if any, is just and equitable.
3. In contrast to Kennon v Spry, the Caldwell family have conducted a [redacted] business over four generations established initially in [the early 1900s]. The assets have grown since those early days but what exists in the trusts reflects the efforts of a long line of direct lineal descendants of the founder of the business, and in particular, Mr K.
4. It is uncontentious that the origin of the trusts' assets does not reflect contributions made by the husband and/or the wife. The husband was well remunerated throughout his working life in the Caldwell family business and he and the wife have amassed significant assets outside the trusts.
5. Further, this is not a case where the wife points to a long history of the husband exercising control over trusts which have been established and utilised by the husband during a marriage for the benefit of the husband, wife, and their children. Indeed, the husband has not received any distributions from the trusts either during the marriage or since separation.

[236]

So too, in the present case, in considering the question of the apparent relevance of the remaining documents sought by the husband in the trusts subpoenas, I consider that, in the circumstances of this case, proportionality is important, but has been overlooked or disregarded by the husband and/or his legal advisers. As Cronin J said, the parties and the Court have to have "some idea" of the size of the asset pool, but that does mean that proportionality requires preciseness in a case of wealth of this magnitude. In this regard, I take into account the absence of any:
- expert evidence that the wife's equitable chose in action, constituted by her right to due consideration is actually capable of valuation and if so, how, and what documents would be required to undertake same; and
- evidence of the husband's (or, indeed, the wife's) contributions beyond the relatively uncontroversial pool and, in particular, to the subpoenaed trusts and/or the J Group.
Cronin J also relevantly said at [84], in relation to disclosure, that the Court "has a responsibility to ensure that the exercise is not only cost-effective but that it does not have a significant impact upon the parties personally" and, further, that "the Court should also consider its own resources".
As Harper J explained in Kehoe & Seden (No 2) [2022] FedCFamC1F 346 at [15], the grounds of lack of forensic purpose, lack of relevance, abuse of process and fishing overlap, which grounds are variously raised by the subpoenaed trusts and the wife and which, for the reasons aforesaid, I find to be made out insofar as the documents specified in paragraph 3 of the schedule in Part C of each of the subpoenas are concerned. This is particularly so by reason of lack of apparent relevance, underpinning the objections on the grounds of lack of legitimate forensic purpose and fishing, as that latter concept was explained by Brereton J in Liristis v Gadelrabb at [5].
For the reasons herein, in the circumstances, orders will be made for paragraph 3 of the schedule in Part C of each of the four trusts subpoenas to be struck out, but for the Notice of Objection filed on behalf of the wife on 12 September 2024 to the subpoena to F Bank filed on behalf of the husband on 3 September 2024 to be dismissed.

Cristopher & Pelleas [2025] FedCFamC1F 713 (13 October 2025)

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Judgment (237 paragraphs)

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