In this Alert, Partner Alison Ross, Associate Kathleen Coggins
and Trainee Solicitor Elle McDermott discuss how the Federal
Circuit Court of Australia has recently had to consider an
application by the wife for access to her husband's hard drive
to enable her to access financial information and documents held by
the husband on his computer.
The case, Elias & Elias  FCCA 457, is an
example of litigants becoming more creative in trying to obtain
disclosure using technology to assist them.
In that case, proceedings were commenced by the wife on 20
December 2013 and her interim application for access to the
husband's hard drive was heard on 6 February 2014. Since
separation, however, the husband's computer hard drive had been
seized by the Police as a result of investigations they were
conducting into assault charges against the husband.
In determining the issue, and whether to allow the wife
permission to inspect and copy the computer hard drive of her
husband, the Court considered the obligations of a party to provide
full and frank disclosure of all relevant financial circumstances.
The Court also considered the principles that would apply if the
hard drive had been produced under a subpoena.
The Court ultimately refused the wife access to the
husband's hard drive, on the basis that the husband had not yet
been provided with sufficient opportunity to make full and frank
disclosure. The hard drive had not been in the husband's
possession having been seized by the Police. The Court found that
"the disclosure process must be allowed to proceed before the
Court will consider the merits of allowing unrestricted
access" in the form sought by the wife. The proceedings for
property settlement were, at the time of the wife's interim
application, in their infancy.
It appears that, although the wife was unsuccessful in this
instance, the outcome may have been different in other
circumstances, such as if the husband had refused repeated requests
for disclosure, had failed to comply with earlier orders for
disclosure or if, for example, the Court did not have the
reassurance of having a preserved copy of the device in question,
such as the hard drive which had been provided to the Court as a
result of the police involvement in that matter.
There have been few other reported decisions dealing with this
issue, leaving future cases to be determined on their merits. The
few decisions that are available have, however, taken a restrictive
approach to disclosure in these circumstances:
In a 2012 decision, Sullivan & Sullivan, the Court
refused a husband's application to access non-privileged
information stored on the wife's personal computers and mobile
phones. The husband sought information relating to the wife's
alleged disposition of funds overseas in the period around
separation. The husband asserted that the wife had failed to make a
full and frank disclosure. It was held, however, that there can be
no general fishing expedition by a party in the pursuit of the
fulfilment of disclosure obligations. The Court dismissed the
husband's application but granted leave to the husband to issue
a subpoena. In doing so, the Court did note that while it had the
power to make the Orders sought by the husband, the Orders sought
should have been more directed and narrow.
In an earlier case from 2008, Tael v Bonnard Equipment Pty
Ltd v Liao, a husband successfully appealed a decision
granting his wife access to information stored on the husband's
computer for the purpose of taking a forensic image of each storage
device. The appeal was allowed and the Court ultimately found that
there was a prospect of substantial injustice to the husband as a
result of the wife being permitted to have access to privileged or
As technology enabling a forensic examination of computer
hardware improves, the Court will be faced with increasing
applications of this kind. To date, the Court has taken a
restrictive view however it appears that the door has been left
open for applications to succeed or the information to be available
in answer to subpoena, particularly where, for example:
It may be the only means to preserve the information or it is
at risk of being destroyed and there is a history of non-disclosure
or a reluctance to disclose.
One party is able to point to the other's failure to
provide documents in accordance with earlier requests or orders of
The information required can be pin-pointed with some degree of
certainty to avoid a suggestion that a party is "fishing"
There are means to avoid a party's privileged information
or communications from being disclosed.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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