Julien & Perrin - [2024] FedCFamC1F 265

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Julien & Perrin [2024] FedCFamC1F 265

File number: SYC 8105 of 2022

Judgment of: HARPER J

Date of judgment: 17 April 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has in her possession a laptop containing documents over which the husband claims privilege – Where wife claims privilege was waived by the husband – Where wife claims the device also has documents over which she claims privilege – Where it is necessary for the Court to know what documents are contained on the device prior to determining arguments pertaining to privilege – Where husband’s proposal protects the privilege of both parties – Orders made in accordance with regime proposed by husband.

Division: Division 1 First Instance

Number of paragraphs: 17

Date of hearing: 17 April 2024

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: York Family Law Specialists

Counsel for the Respondent: Mr Schonell

Solicitor for the Respondent: Milevski Family Lawyers
ORDERS

SYC 8105 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PERRIN
Applicant

AND:
MS JULIEN
Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:
1.Within 42 days the Applicant Husband (“the husband”) shall nominate three persons located in Brisbane with whom the husband has had no prior association for the purpose of preparing a complete copy of all the contents of the laptop the subject of the Application in a Proceeding filed 12 March 2024 and forthwith upon such nomination:
(a)The Respondent Wife (“the wife”) shall select one of those nominated and deliver the laptop to such person; and
(b)Each party shall do all things necessary to cause and permit such person to make three complete copies of all the contents of the laptop in accordance with Order 6.

And the husband shall meet the costs of such copying in the first instance, with the issue of the wife’s contribution to the same being reserved.
2.Pending compliance with Order 1, the wife is hereby restrained from causing and/or permitting any alteration to the contents of the laptop save that the wife is permitted to move to a folder on the laptop named “Privileged Material of the wife” (“Privileged Material Folder”) such of the contents as the wife seeks to maintain a claim for client/legal professional privilege in respect of.
3.Pending further order:
(a)The husband be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy in any way to the contents of the Privileged Material Folder; and
(b)Each party be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy to in any way to the contents of the laptop save for the purpose of complying with Order 4.

4.Within 42 days of receipt of a copy of the contents of the laptop pursuant to Order 1(a), each party shall serve upon the…

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 Julien & Perrin

Details

AGLC: Julien & Perrin [2024] FedCFamC1F 265
Case: [2024] FedCFamC1F 265
Decision Date: 17 April 2024

CaseChat Overview and Summary

Mr Perrin (the husband) applied to the Federal Circuit and Family Court of Australia seeking an order for Ms Julien (the wife) to provide him with a laptop in her possession that contains documents he claims are privileged. The wife argued that the husband waived his privilege and also claimed that the laptop contains documents to which she claims privilege. The court was required to determine how the contents of the laptop should be examined to resolve the privilege claims.

The court found that it was necessary to know what documents were on the laptop to resolve the privilege claims. The husband proposed a regime to protect the privilege of both parties. The court accepted this proposal, as it would allow the parties to identify which documents were privileged without compromising the privilege of either party. The court made orders in accordance with the husband's proposal, including appointing a neutral person to make copies of the laptop's contents, restricting access to the laptop and its contents, and requiring the parties to provide lists of documents for which they claimed privilege. The court also ordered that the wife's access to certain accounts be reinstated for one month and that the remaining issues be stood over until the parties complied with the orders.

This case highlights the importance of protecting privileged documents in family law proceedings and the need for a neutral and secure process to examine the contents of electronic devices. The court's orders provide a framework for resolving privilege claims in a way that protects the interests of both parties. The court's decision also demonstrates the importance of cooperation between parties in resolving disputes in family law proceedings.

Orders

Orders of the court

SYC 8105 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PERRIN

Applicant

AND:

MS JULIEN

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:

1. Within 42 days the Applicant Husband (“the husband”) shall nominate three persons located in Brisbane with whom the husband has had no prior association for the purpose of preparing a complete copy of all the contents of the laptop the subject of the Application in a Proceeding filed 12 March 2024 and forthwith upon such nomination:

(a) The Respondent Wife (“the wife”) shall select one of those nominated and deliver the laptop to such person; and

(b) Each party shall do all things necessary to cause and permit such person to make three complete copies of all the contents of the laptop in accordance with Order 6.

And the husband shall meet the costs of such copying in the first instance, with the issue of the wife’s contribution to the same being reserved.

2. Pending compliance with Order 1, the wife is hereby restrained from causing and/or permitting any alteration to the contents of the laptop save that the wife is permitted to move to a folder on the laptop named “Privileged Material of the wife” (“Privileged Material Folder”) such of the contents as the wife seeks to maintain a claim for client/legal professional privilege in respect of.

3. Pending further order:

(a) The husband be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy in any way to the contents of the Privileged Material Folder; and

(b) Each party be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy to in any way to the contents of the laptop save for the purpose of complying with Order 4.

4. Within 42 days of receipt of a copy of the contents of the laptop pursuant to Order 1(a), each party shall serve upon the other a list of each document contained therein in respect of which a claim for client/legal professional privilege is sought to be maintained and such list shall sufficiently identify the date, author and nature of the document and the person/entities privy to the same so as to permit any issue as to the claim for privilege is to be determined.

5. Upon compliance with Order 4, each party shall be at liberty to inspect any documents contained on the laptop which are not the subject of a claim for privilege in accordance with Order 4 and the restraint in Order 3(b) shall stand discharged.

6. For the purpose of Order 1(b):

(a) A complete copy of the contents of the laptop shall be made (“the Control Copy”) and delivered by the wife forthwith to the Exhibits section of the Sydney Registry of the Court; and

(b) The person preparing the copy shall then do that which is necessary to ensure that the only copies of the documents contained in the Privileged Material Folder are in that folder and no other copies of such material are otherwise contained in two complete copies of the contents of the laptop, one of each of which is to then be provided to each party.

7. Pending further order, the Control Copy is to be retained by the Court and not accessed by any person without the leave of the Court being first obtained.

8. Within seven days of the date of these orders the husband is to do all acts and things necessary to reinstate the wife’s access to the account …@... for email, calendar and shared drive, with the access so provided to lapse after one month from the date of these orders.

9. The balance of the issues raised by the husband’s Application in a Proceeding filed on 12 March 2024, be stood over to a date to be advised, noting that it will need to be listed after the parties have complied otherwise with the orders made today.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	SYC 8105 of 2022
Judgment of:	HARPER J
Date of judgment:	17 April 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has in her possession a laptop containing documents over which the husband claims privilege – Where wife claims privilege was waived by the husband – Where wife claims the device also has documents over which she claims privilege – Where it is necessary for the Court to know what documents are contained on the device prior to determining arguments pertaining to privilege – Where husband’s proposal protects the privilege of both parties – Orders made in accordance with regime proposed by husband.
Division:	Division 1 First Instance
Number of paragraphs:	17
Date of hearing:	17 April 2024
Place:	Sydney
Counsel for the Applicant:	Mr Kearney SC
Solicitor for the Applicant:	York Family Law Specialists
Counsel for the Respondent:	Mr Schonell
Solicitor for the Respondent:	Milevski Family Lawyers

SYC 8105 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PERRIN Applicant
AND:	MS JULIEN Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	17 APRIL 2024