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Separating? What to do with private information

By Sasha Sarai and Tess Lehn / 18 January 2022
5 min.
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Worthwhile read for: Married couples, defacto couples, recently separated individuals, family law practitioners

Even in circumstances where couples are able to separate amicably, the process of, and adjustment to, separation can be difficult. 

Following separation, not only do couples face the need to resolve parenting and/or property and spousal maintenance arrangements, there is also the need to adjust to a change in the well-established routines and dynamics that existed during the marriage or de facto relationship. 

It is commonplace in relationships for couples to freely exchange information; share what would otherwise be “private” spaces such as a home office; adopt a practice of opening mail addressed to the other, and share passwords and passcodes for email and mobile phone accounts. It is recognised that in these circumstances, there is an implied or unspoken consent for couples to review and access each other’s private documents and information that may be located around the home or on an electronic device as part of their day-to-day routines. 

However, it is important for couples undergoing, or considering, separation to understand that any implied consent to review and access documents and/or the electronic devices of their former partner is impliedly revoked once the decision to separate has been made, even if separation occurs under the one roof. 

It is common for people going through a separation to be concerned that their former partner may seek to hide or dispose of assets, and accordingly take, copy or photograph as many documents as possible from the former family home or email accounts. However, given that the previous implied consent to access such information has been revoked, there can be serious ramifications if those documents have been improperly accessed following separation. 

Firstly, family law clients should be assured that, in the event that their former partner is in fact seeking to hide or dispose of assets, the Federal Circuit and Family Court of Australia has wide powers to assist, including:

1.    the ability to issue subpoenas, which for example can be directed to banks to ensure all accounts have been disclosed; 

2.    the power to make injunctive orders, which can prevent a party from selling or disposing of assets; 

3.    the power to set aside transactions, in the event a spouse has sold or disposed of an asset in order to defeat their former spouse’s claim to property settlement; and

4.    the ability to make a costs order against a party in the event that party has wilfully failed to disclose relevant information.  

However, should a party attempt to take matters into their own hands and improperly obtain documents, there can be various, and potentially serious, ramifications, which may include:

1.    Facing a criminal offence:

In the event that such documents have been obtained by accessing their former partner’s email account, downloading and/or providing such documents to that party’s lawyer can be a breach of the Criminal Code

2.    The party’s lawyer being unable to continue to act on their behalf:

There are different ways in which a party’s lawyer may be required to stop acting on behalf of their client, in the event that they are presented with documents that have been improperly obtained, including:

(a)    In the event those documents are privileged, which includes correspondence or other documents between the party’s former spouse and their family lawyer. Should the party’s lawyer come into possession of those documents and review their contents, it will likely be necessary for the lawyer to inform their client that they can no longer act on their behalf, no matter for how long a matter has been running.  

(b)    Should the party not have any entitlement to be in possession of those documents, regardless of their nature, their lawyer has a professional and ethical obligation (pursuant to the Australian Solicitors Conduct Rules) to deliver those documents to the other party’s family lawyer. There is then a risk that the party’s former spouse may bring an application to have the party’s lawyer restrained from acting on behalf of their client, given the confidential information that they may now be privy to.

3.    Being unable to rely upon important evidence at a final hearing:

Should the matter proceed to final hearing, and the Trial Judge determines that the evidence presented to the Court has been improperly obtained, the Judge may use his or her discretion to refuse to admit the evidence, in accordance with section 138 of the Evidence Act 1995 (Cth). 

In order to avoid any potential issues following separation, we recommend our family law clients:

1.    set up a new email address in order to communicate with their lawyer, to ensure that all documents remain privileged; 

2.    change their passwords to all accounts, including but not limited to email accounts; online banking; social media accounts; and any mobile phone passcodes; 

3.    disconnect from any data sharing providers, such as any shared Apple accounts, Family Sharing and the Cloud; 

4.    turn off any applications which share your location; 

5.    securely store all personal documents (noting, however, that some, if not all, of those documents will likely be required to be disclosed as part of any family law matter); and

6.    consult their lawyer if they have any concerns in relation to their obligations following separation. 

If you require any advice or assistance following your separation, please contact our Family Law Team.

Authors
Sasha Sarai
Special Counsel
Sasha is a Special Counsel in our HG Private and Family and Relationship Law practice.
Tess Lehn
Associate
Tess is an Associate in our Family and Relationship Law practice.

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