Federal Circuit Court refuses wife’s access to husband’s hard drive
In this article, Alison Ross and Kathleen Coggins 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:
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:
For further information regarding family law matters, please contact HopgoodGanim’s Family Law team.