For many Asian families, privacy is not a preference but a priority. A family’s reputation, its standing in the community, its relationships with banks and business partners, and the dignity of older generations can all be affected when a private disagreement becomes public. Families from Malaysia, Singapore, Hong Kong, Taiwan, mainland China and Indonesia are often surprised to learn how much of a trust dispute in Australia can end up on the public record.
Understanding this early shapes better decisions: how disputes are raised, how family members communicate, and which pathway is chosen to resolve them.
Open justice: the starting point
Australian courts operate on the principle of open justice. Trust disputes, such as claims against a trustee, challenges to an appointor’s decisions or disputes about distributions, are usually heard in a state Supreme Court. In general:
- hearings are open to the public and the media;
- judgments are usually published online with the names of the parties, and are easily found by internet search;
- evidence given in open court, including details of family relationships, health, finances and business affairs, can be reported; and
- documents filed with the court may, in some circumstances and subject to court rules, be accessed by people who are not parties.
A judgment can set out a family’s history, the value of its assets and the court’s view of each witness’s credibility. Once published, it can remain searchable indefinitely.
Suppression and pseudonym orders: possible, but limited
Courts can make orders suppressing particular information or allowing parties to be identified by initials or pseudonyms. The power comes from legislation in some states and from the courts’ own powers. However, these orders are an exception to open justice. Generally, the party seeking the order must show it is necessary, for example to prevent prejudice to the proper administration of justice or to protect someone’s safety, and not merely desirable.
Embarrassment, distress, damage to reputation or commercial sensitivity are usually not enough on their own. Where orders are made, they are often confined to specific material, such as medical information or details about children, rather than the whole case. The media may also be heard in opposition.
Trustees seeking the court’s advice
Trustees can apply to the court for advice or directions, for example about whether to defend a claim or how to exercise a discretion. In some of these applications, courts have allowed confidential material, such as the trustee’s legal advice on prospects, to be kept from opposing parties or the public, and some judgments are published in anonymised form. This is a matter for the court in each case and is not guaranteed.
Family law is different, but only in family law courts
Where trust assets are in issue in a property settlement between separating spouses or de facto partners, the matter is usually dealt with under the Family Law Act. That Act restricts publishing accounts of proceedings that identify the parties, witnesses or certain related people, subject to exceptions, and family law judgments are generally published in anonymised form.
That protection does not follow the trust into other courts. If the same trust is later the subject of a dispute between siblings, or between beneficiaries and a trustee after a parent’s death, that dispute will usually be heard in a state Supreme Court without the family law publication restrictions.
Private pathways
- Negotiation between the parties and their lawyers, often the quickest and most private option.
- Mediation, which is confidential and conducted on a without prejudice basis, subject to limited exceptions. It allows sensitive matters, including family history and emotions, to be discussed openly without becoming evidence.
- Expert determination, useful for discrete technical questions such as the value of a business or property.
- Arbitration, which is private, but there is real uncertainty in Australia about whether an arbitration clause in a trust deed can bind beneficiaries who never signed it, particularly minors and unborn beneficiaries. For most family trusts, a mediation clause is the more practical step.
- Settlement deeds containing confidentiality and non-disparagement terms.
One caveat: where a settlement affects minors, people with impaired capacity or beneficiaries not yet born, court approval may be required. An approval application can reduce privacy, although courts can sometimes protect sensitive material within it.
The overseas dimension
A published Australian judgment does not stay in Australia. It can be found by journalists, business counterparties and banks conducting due diligence in the family’s home country, and family disputes involving well-known business families can attract interest in Chinese-language and regional media. Evidence filed in Australia may also be relevant to proceedings elsewhere. Families should consider the reputational consequences across every jurisdiction where they live, invest or do business.
Practical steps
- Include a dispute resolution clause requiring negotiation and mediation before court in the trust deed and any family constitution.
- Keep communications measured. Emails, WeChat and WhatsApp messages can become evidence. Avoid making allegations in family group chats.
- Think about jurisdiction before proceedings are commenced: where the trust is governed, where the trustee is and where the assets are located all matter.
- Consider confidentiality before filing, including what evidence is truly necessary and whether any orders should be sought at the outset.
- Get advice early, while private options are still available.
A composite hypothetical
This example is an anonymised composite and does not describe any real client.
The Santoso family, well known in Jakarta’s business community, established a Victorian family trust that holds several Melbourne properties. After the father’s death, his eldest son becomes the sole director of the corporate trustee. Two younger siblings believe distributions have favoured their brother and threaten Supreme Court proceedings.
When they learn that a judgment could be published with the family’s name, financial details and the court’s assessment of each sibling’s evidence, and that it could be read by their bankers in Indonesia, all three agree to mediation under the family constitution. The dispute settles with a new distribution policy, an independent co-director and a confidential deed. Because one beneficiary is a young grandchild, the settlement is structured with advice on whether court approval is needed and how to protect sensitive information if it is.
Frequently asked questions
Can we ask the court to keep our family’s name out of the judgment?
You can apply, but the court will generally need to be satisfied that an order is necessary, not simply that publicity would be embarrassing or commercially harmful. Orders, if made, are often limited in scope.
Is everything said in mediation confidential?
Generally, yes. Mediation communications are confidential and without prejudice, subject to limited exceptions set by law and by the mediation agreement. A mediated settlement is usually recorded in a deed, which can include confidentiality terms.
Can our trust deed require disputes to go to arbitration?
A deed can include such a clause, but whether it binds all beneficiaries, especially minors and future beneficiaries, is uncertain in Australia. A clause requiring negotiation and mediation before court is usually the more reliable choice.
How Chua Tan Associates can help
We advise trustees, appointors, protectors, beneficiaries and families across Australia on trust disputes and on resolving them privately where possible, and we work with local lawyers where an offshore structure is involved. Justin Chua is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner, and an Accredited Family Business Advisor, and helps families design dispute resolution clauses and family constitutions, and resolve disagreements through confidential mediation. We advise in English, Mandarin and Cantonese.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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