HopgoodGamin 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 personal documentation.
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 Court.
- The information required can be pin-pointed with some degree of certainty to avoid a suggestion that a party is “fishing” for information.
- There are means to avoid a party’s privileged information or communications from being disclosed.