Elias and Elias

[2014] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIAS & ELIAS [2014] FCCA 457

Catchwords:
FAMILY LAW – Practice and procedure – whether the wife should be able to access and copy the contents of the husband’s computer hard drive – application dismissed.

Legislation:  

Family Law Act 1975

Federal Circuit Court Rules 2001, Part 14; regs.14.01 – 14.11, 15A.01 – 15A.17, 24.03
Federal Circuit Court of Australia Act 1999, s.45(1)

In the Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713
Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653
Guinti and Giunti (1986) 11 Fam LR 160; [1986] FLC 91-759

Applicant: MS ELIAS

Respondent: MR ELIAS

File Number: SYC 7597 of 2013

Judgment of: Judge Monahan

Hearing date: 6 February 2014

Date of Last Submission: 6 February 2014

Delivered at: Sydney

Delivered on: 12 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Meyer

Solicitors for the Applicant: Meyer Partners Family Lawyers

Counsel for the Respondent: Mr Minehan

Solicitors for the Respondent: MCW Lawyers

ORDERS

1. The wife’s interim application to be permitted to inspect the digital copy of husband’s computer hard drive stored by agreement at the Court and to take a copy thereof be refused.

THE COURT NOTES THAT:

(A)This matter remains listed for mention on 14 May 2014 at 11:30 am.

IT IS NOTED that publication of this judgment under the pseudonym Elias & Elias is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 7597 of 2013

MS ELIAS

Applicant

And

MR ELIAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are between MS ELIAS (“the wife”) and MR ELIAS (“the husband”) and involve both parenting and property applications.

2. The relevant child is X born (omitted) 2012 (“X” or “the child”).

3. This decision relates to a discrete issue; namely, whether the wife can be permitted to have access to a digital copy of a computer hard drive that the husband allegedly used for business and personal purposes. The computer hard drive was taken into possession by the New South Wales Police in relation to certain investigations into the husband. The computer hard drive has been presumably, returned to him by now or will shortly be returned to him. The wife is also seeking copy access.

4. The access sought by the wife to the digital copy of a computer hard drive is opposed by the husband.

5. Unless otherwise stated, any statutory references I make will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (the “Rules”).

Background

1. The parties provide particulars about the relationship in their respective affidavits filed in these proceedings. They agree that they commenced cohabitation during 2006 and married on (omitted) 2009. As stated, their child, X, was born in (omitted) 2012.

2. Although there is a factual dispute as to what caused the breakup of the relationship, there is evidence that a provisional Apprehended Domestic Violence Order (“AVO”) was taken out by the New South…