Sullivan and Sullivan

[2012] FamCA 837

FAMILY COURT OF AUSTRALIA

SULLIVAN & SULLIVAN [2012] FamCA 837

FAMILY LAW – PRACTICE AND PROCEDURE – Orders for production of computers and phones

Family Law Act 1975 (Cth)

APPLICANT: Mr Sullivan

RESPONDENT: Ms Sullivan

FILE NUMBER: SYC 291 of 2011

DATE DELIVERED: 2 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITORS FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Beaumont

SOLICITORS FOR THE RESPONDENT: Barkus Doolan Kelly, Family Lawyers

Orders

1. Leave is granted to the husband to issue such subpoenae as he may be advised.

2. The application of the husband at this time is dismissed.

3. The costs of both parties are reserved to the trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Sullivan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 291  of 2011

Mr Sullivan

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are proceedings for interlocutory orders in proceedings in which the parties to a marriage seek an alteration of their property interests.

2. The primary proceedings are part heard and are listed for further hearing commencing 3 December 2012.

3. The husband seeks orders to provide access to non-privileged information stored on the wife’s personal computers and mobile phones.  Primarily the husband seeks information relating to the wife’s disposition of funds in the period leading up to and following the separation of the parties in October 2010.

4. The orders are detailed but in short provide for the appointment of a computer expert to examine the machines referred to and to remove all the material during the period referred to from them.  It is proposed that that material be provided to the solicitors for the wife in the first instance by the expert so that they can determine what of the material is subject to a claim of privilege and set them aside.  The husband then proposed to have access in accordance with the orders to the balance of the documents found.  Other orders are sought in relation to disclosure of the details of the disposal of any computer used by the wife from 1 January 2010 to date.

5. The wife opposes the orders sought.

6. Submissions were made in writing by each of the parties which dealt with the power that might exist in the Court to make the orders sought and whether that power should be exercised in the present case.

7. The husband asserts that there is sufficient evidence to demonstrate the fact, or if not the fact the strong possibility, of the transfer of funds up to $1,000,000 by the wife from accounts in Australia to New Zealand.  It is asserted that the wife’s mother was the recipient on behalf of the wife of some part at least of this money and that the money was removed in a deliberate attempt to provide a fund for the wife of which the husband was unaware.

8. The husband asserts that the wife has failed to make a full and frank disclosure.  Part of the affidavit evidence on which the husband relies to sustain his assertions are untested reports of statements made, it is asserted, by the wife to third parties.  There is other evidence of withdrawals by the wife from bank accounts.

9. One of the witnesses upon whom the husband relies deposes as to a conversation with the wife in which the wife asserts that she has provided to her mother the sum of $1,000,000 to hide.

10. The assertions made by the husband are denied and the facts are clearly in issue.

11. The Court has come to the conclusion that it may well have the power to make the orders sought but would in any event have a discretion as to the making of such an order.

12. The parties to the proceedings have a clear responsibility and obligation to make a full and frank disclosure of all documents which may relate to a matter in issue in the proceedings.  A failure to do so has the potential for grave consequences.

13. However in pursuit of the fulfilment of that obligation it is important that documents directly related to the issue in dispute be sought.  There is an expectation of the Court that there will be no general fishing expedition in the pursuit of the fulfilment by another party of that obligation.

14. In this case, simply a bundle of electronic documents are sought none or only some of which might be related to a matter in issue.  It is not known how many there will be and to what they might relate.  They may include communications between persons other than parties to these proceedings.

15. It seems to the Court that a more directed approach ought first be taken prior to the consideration of the orders sought by the husband.  The Court will grant leave to the husband to issue such subpoenae as he may be advised.  The Court notes that there are a number of potential bodies who might be able to provide information on the wife’s transfers to persons or accounts in New Zealand including Austrac, the wife’s banks and indeed the husband’s mother-in-law and her banks.

16. Accordingly, it is intended to grant the leave referred to.  It is not in the Court’s view an appropriate time for broad approach taken by the husband absent a more conventional directed and narrow approach first being adopted.

17. The application of the husband at this time will be dismissed.

18. The husband will be given leave to issue subpoena as advised.

19. The issue of costs will be reserved to the trial.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 2 October 2012.

Associate: 

Date:  2 October 2012