In the interesting recent decision of Bilal & Omar [2015] FamCAFC 30 (27 February 2015) the Full Court allowed the husband’s appeal against a decision at first instance that a Binding Financial Agreement was invalid under section 90C of the Family Law Act on the basis that the wife (with limited English skills) had not been given intelligible legal advice.

The husband argued on appeal that the court at first instance erred by rejecting his argument that the wife had waived legal professional privilege regarding her lawyer’s file  which he had sought production under subpoena, to obtain proof that she had received sufficient legal advice. The Full Court accepted the husband’s argument the trial judge directed her attention to whether the advice to the wife was understood, rather than whether the advice was in fact received.

The Full Court held that the court at first instance was wrong in believing hat “conscious decision on the part of the holder of the privilege” was necessary for there to be a waiver of it. The Full Court  cited s122(2) of the Evidence Act 1995 (Cth) which provides that privilege is lost by “the behaviour of the holder of the privilege”– not the intention of the holder of the privilege.