DAS and DAS - [2021] FCWA 215

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DAS and DAS [2021] FCWA 215
CORAM: O'BRIEN J
HEARD: 22 NOVEMBER 2021 - Ex parte
DELIVERED : Ex tempore
FILE NO/S: 8322 of 2020
BETWEEN: MS DAS
Applicant
AND
MR DAS
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Ex parte application pursuant to Rule 230 of the Family Court Rules 2021 for an Anton Piller order - Relevant principles discussed - While no express requirement in Rule 230 for the appointment of an independent supervising solicitor that will nevertheless be required in almost all cases - Where forensic examination of computer and other devices sought - Safeguards required - Order granted on suitable undertakings being given

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Court Rules 2011
Rules of the Supreme Court 1971 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr R Hooper SC
Respondent	:	No appearance - ex parte hearing

Solicitors:

Applicant	:	Carr & Co
Respondent	:	Law Mantra Lawyers

Case(s) referred to in decision(s):

Anton Piller KG v Manufacturing Processes Limited and Ors [1976] Ch.55
Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754
Talbot and Talbot (1995) FLC 92-586

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Das and Das has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1 The matter for determination is the urgent application of the wife filed on 17 November 2021 seeking what are generally described as "Anton Piller orders"[1] for the seizure and inspection of various electronic devices by which it is suspected the husband conducts transactions and communications relevant to substantial holdings in bank accounts in [Country A], and his wallet.

Background

[1] Anton Piller KG v Manufacturing Processes Limited and Ors [1976] Ch 55 (' Anton Piller').

2 Both parties were born in Country A; the husband in [redacted] and the wife in [redacted]. They were married in [redacted] 1988, and their only child [Saanvi] was born in [redacted]. The parties moved to Western Australia in 1996.

3 The husband is a [scientist]. He was employed in various roles in Western Australia before accepting employment in [Country B] in 2007. The wife and Saanvi remained in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DAS and DAS

Details

AGLC: DAS and DAS [2021] FCWA 215
Case: [2021] FCWA 215
Decision Date: 22 NOVEMBER 2021

CaseChat Overview and Summary

The parties to the case were DAS and DAS, who were involved in an ex parte application pursuant to Rule 230 of the Family Court Rules 2021 for an Anton Piller order. The nature of the dispute was that forensic examination of computer and other devices was sought. The court was required to decide whether an independent supervising solicitor should be appointed for the Anton Piller order and what safeguards were necessary to protect the respondent's rights.

The legal issues the court had to address were whether there was an express requirement in Rule 230 for the appointment of an independent supervising solicitor and whether safeguards were required to protect the respondent's rights. The court held that while there was no express requirement in Rule 230 for the appointment of an independent supervising solicitor, it would nevertheless be required in almost all cases where forensic examination of computer and other devices was sought. The court also held that safeguards were necessary to protect the respondent's rights, such as the appointment of an independent supervising solicitor and the presence of the respondent or their legal representative during the search.

The court granted the order on the basis that suitable undertakings were given, including the appointment of an independent supervising solicitor and the presence of the respondent or their legal representative during the search. The court held that these safeguards were sufficient to protect the respondent's rights and that the order was necessary to prevent the destruction or concealment of evidence. The court also held that the applicant had made out a prima facie case for the grant of the order.

In conclusion, the court granted the Anton Piller order on the basis of suitable undertakings being given, including the appointment of an independent supervising solicitor and the presence of the respondent or their legal representative during the search. The court held that while there was no express requirement in Rule 230 for the appointment of an independent supervising solicitor, it would nevertheless be required in almost all cases where forensic examination of computer and other devices was sought. The court also held that safeguards were necessary to protect the respondent's rights and that the order was necessary to prevent the destruction or concealment of evidence.

Orders