Introduction
Q1: Can I subpoena my ex's family trust records just because I think there is money hidden there?
A: No. You have to show the documents have apparent relevance to a real issue in the case, not just a hope that something useful might turn up. Reference: Cristopher & Pelleas [2025] FedCFamC1F 713
Q2: A subpoena is just like discovery, so can I chase any train of inquiry?
A: No. A subpoena has a stricter test than discovery. Documents that merely might lead somewhere are not enough. Reference: Liristis v Gadelrabb [2009] NSWSC 441
Q3: My ex only has a discretionary interest in a family trust. Is that always too remote to value?
A: No. If your ex holds a real concentration of power over the trust and has taken distributions, the court can treat the interest as property capable of valuation. Reference: Woodcock (No 2) [2022] FedCFamC1F 173
A subpoena is a court order that forces a person to hand documents to the court. In a property settlement it is often the only way to get records held by a third party, like a bank, an accountant, or the trustee of a family trust. It is a powerful tool, and that is exactly why the court controls how far you can use it.
This article looks at one question that decides a lot of big-money property cases. When does a family court subpoena for trust documents cross the line and become a fishing expedition? The 2025 decision in Cristopher & Pelleas [2025] FedCFamC1F 713 gives a clear answer.
What is a fishing expedition when you issue a subpoena?
A fishing expedition is a subpoena that goes looking for documents without showing they are relevant to a real issue, in the hope that something useful will turn up. Australian courts do not allow it. To uphold a subpoena, you must show the documents have apparent relevance to an issue in the case.
This is where a subpoena differs from discovery. In discovery, you can ask for documents that might lead to a train of inquiry. A subpoena is narrower. As the court explained in Cristopher & Pelleas:
"[The] party issuing an impugned subpoena must demonstrate the documents sought have 'apparent relevance' to an issue in the proceedings, although, unlike discovery, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to 'a train of inquiry' which might assist his or her case."
The line between a fair subpoena and a fishing expedition is not about whether you are certain the documents exist. It is about whether you have a real reason to think they are relevant. The courts often put it as a fishing metaphor, in words from Brereton J in Liristis v Gadelrabb that Cristopher & Pelleas adopted:
"It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is 'on the cards' that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena."
Courts apply a few key tests to separate a proper subpoena from a fishing expedition:
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Apparent relevance. You must show the documents are apparently relevant to an issue the court actually has to decide. Cristopher & Pelleas [2025] FedCFamC1F 713
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Not just a train of inquiry. Showing the documents might lead to something is enough for discovery, but not for a subpoena. Read & Chang [2010] FamCA 876
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On the cards. There must be reasonable grounds to think relevant documents will be produced, that the fish of the relevant type are in the pond. Liristis v Gadelrabb [2009] NSWSC 441
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A worthwhile connection. There must be a real link between a specific part of your case and the documents you are chasing. White & Tulloch v White [1995] FamCA 127
Core Point: A subpoena is not a fishing licence. You have to show the documents are apparently relevant to a real issue, not just that they might turn something up.
Why does getting the relevance test wrong matter?
Getting the relevance test wrong is expensive, and in a large asset pool case it can sink your whole strategy. A subpoena that looks like a fishing expedition will be struck out, and you can be left worse off than if you had never issued it.
Here is what turns on it:
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Your subpoena gets struck out. If you cannot show apparent relevance, the court sets the subpoena aside and you get none of the documents you were after.
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You can be hit with costs. Broad subpoenas against trustees and third parties cost real money to answer. If yours is struck out as fishing, you can be ordered to pay for the trouble you caused.
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You do not need it anyway. In many big-money cases there is already a substantial pool of uncontroversial assets. The court asks why you are digging into family trusts when there is plenty to divide without them.
The wife came from a wealthy family. Her side controlled a group of family trusts, called the J Group in the judgment, holding substantial assets. The husband wanted those trusts brought into the property pool, so he issued subpoenas for the internal trust documents to value the wife's interests.
The problem was the nature of the wife's interest. In most of the trusts she was only a discretionary beneficiary, an eligible object. All she really held were rights to due consideration and due administration of the trusts. The husband led no expert evidence that those rights were capable of valuation, and his senior counsel could not point to a single case where a court had ever valued the right to due consideration. There was also a substantial pool of other assets available to achieve a fair settlement.
Outcome: The trust subpoenas were struck out in part. Without evidence that the wife's rights could actually be valued, the internal trust documents had no apparent relevance, so chasing them was a fishing expedition.
The court was blunt about the idea that marrying into wealth is reason enough to dig into the family's trusts.
"The mere fact that the husband was married to the scion of a very wealthy family who is an eligible object of various trusts does not, ipso facto, provide a principled reason for interfering with the existing legal and equitable interests. Rather, it may be an invitation to effect palm tree justice, impermissibly."
Key Point: A subpoena that cannot pass the relevance test does not just fail. It wastes your costs, invites a costs order against you, and signals to the court that you are guessing rather than proving.
How do you handle a subpoena for trust documents?
How you handle a subpoena for trust documents depends on the kind of interest your spouse holds and the evidence you can put forward. These three scenarios show where subpoenas succeed and where they collapse into fishing.
Scenario 1: Your spouse is only a discretionary beneficiary
Common Misconception: If my ex is named anywhere in a family trust, I can subpoena all of its records.
Legal Truth: If your spouse is only a discretionary beneficiary, all they usually hold is a right to due consideration and due administration. That is a personal right against the trustee, not a share of the trust assets, and on its own it rarely makes the internal trust documents apparently relevant.
"[The rights to due consideration and due administration] are in the nature of equitable choses in action."
These rights work against the trustees personally. They are not rights over the assets sitting inside the trust. So the fact that the trust holds a fortune does not, by itself, tell you anything about the value of your spouse's interest. Before you subpoena the records, you have to connect the documents to a value you can actually prove.
- Check the trust deed first. If your spouse cannot control the trust or force a distribution, treat the interest as a financial resource, not a slab of property.
- Do not assume a large trust means a large interest. The size of the fund and the value of a discretionary right are two different questions.
- Ask what each class of document is actually meant to prove. If you cannot answer that, the subpoena is exposed as fishing.
Scenario 2: Showing the interest is capable of valuation
Common Misconception: If my ex is a beneficiary of a big family trust, the court will value that interest and let me subpoena the records.
Legal Truth: The court only treats the interest as property capable of valuation if you can show real control or a concentration of power over the trust, or expert evidence that the right can be valued. A bare discretionary interest is usually not enough.
"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."
This is the factor that separates the cases. Where the spouse genuinely controls and benefits from the trust, the interest can be valued and the documents have a job to do. Where the spouse holds nothing but a remote discretionary hope, the same documents become a fishing expedition.
The wife asked the court to decide a preliminary question: were the husband's interests in four discretionary trusts property capable of valuation under section 79? The husband argued his rights to due consideration and due administration were rights only, not property, and could not be valued.
Wilson J disagreed. The husband was not a passive object of these trusts. He held a bundle of rights and a legally endorsed concentration of power over the trust property, and he had historically received distributions of around 15 million dollars.
Outcome: The court held the husband's rights were property within sections 4 and 79, and were capable of valuation. The real control and the history of distributions made the interest concrete, which is exactly what the wife in Cristopher & Pelleas could not show.
| Comparison | Cristopher & Pelleas [2025] | Woodcock (No 2) [2022] |
|---|---|---|
| Spouse's interest | Discretionary beneficiary, no expert evidence | Bundle of rights, around 15 million dollars in distributions |
| Control or power over trust | None | Concentration of power |
| Capable of valuation? | Not shown | Yes |
| Outcome | Trust subpoenas struck out (fishing) | Rights held to be property under s 79 |
Key: The decisive factor is whether your spouse really controls or benefits from the trust, and whether the right can actually be valued. Without that, the documents have nothing to attach to.
- Gather evidence of control first: who appoints the trustee, who has taken distributions, who funds the lifestyle.
- If the interest needs an expert valuation, get the actuary or valuer to confirm it can be valued and to list the documents they need.
- Tie each category of subpoenaed document to a fact you are trying to prove. A subpoena that mirrors a real valuation need is hard to attack.
Scenario 3: Showing a worthwhile connection
Common Misconception: My spouse's family is rich and runs several trusts, so there must be something in there worth exploring.
Legal Truth: You must show a worthwhile connection between a specific element of your case and the specific trusts or entities you are targeting. Wealth on the other side is not a connection.
"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]."
A worthwhile connection is something concrete. It might be a contribution you or your spouse made to the trust, a pattern of the trust funding your lifestyle, or a power your spouse holds over the trust. In Cristopher & Pelleas the husband could have led evidence of contributions to the trusts but did not, so there was nothing to connect his case to the documents he wanted. The same warning runs through Caldwell [2025] FedCFamC1F 506, and the courts have long accepted there is a degree of artificiality in trying to put a figure on these discretionary rights at all, a point made years earlier in Shaw [1989] FamCA 29.
- Write down the specific issue each trust document goes to before you draft the subpoena.
- Lead your evidence of contributions or control. Do not expect the documents to build that part of your case for you.
- If there is already a substantial pool to divide, ask whether the fight over the trusts is worth the costs risk.
If you want to go deeper on how trusts are treated once they are in front of the court, Does a Family Trust Protect Assets in a Divorce in Australia? explains when trust assets count as property. How Courts Identify Puppet Trustees in Family Trusts covers control arguments, and How Does a Financial Resource Classification Change Property Settlement Ratios? shows what happens when a trust is treated as a resource rather than property. For the bigger picture on dividing wealth, see Dollar vs Percentage: How Courts Assess Large Asset Pools. And if you suspect funds are being concealed, What to Do When a Spouse Hides Assets in Divorce sets out your options.
What should you do before issuing a subpoena for trust documents?
Build the relevance before you issue the subpoena, not after. A subpoena succeeds or fails on the work you do up front.
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Pin down the issue. Be clear about the exact question the documents are meant to answer. If you cannot state it in one sentence, the court will call it fishing.
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Get your interest classified. Work out whether your spouse controls the trust or is just a discretionary beneficiary. That decides whether you are dealing with property or a financial resource.
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Lead expert evidence first. If the interest needs valuing, get an actuary or valuer to confirm it can be valued and to list the documents they need. The documents follow the expert.
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Show the connection. Put forward your evidence of contributions, control, or lifestyle funding that links your case to the specific trusts.
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Weigh the costs risk. If there is already a substantial pool to divide, a struck-out subpoena and a costs order may cost you more than the trust fight is worth.
