Sullivan and Sullivan

In *Sullivan & Sullivan*, the Family Court of Australia considered an application by the husband for orders requiring the wife to provide access to non-privileged information stored on her personal computers and mobile phones. The primary proceedings concerned the alteration of property interests between the parties, who were in the process of a part-heard trial. The husband sought this access to obtain information regarding the wife's alleged disposition of significant funds, up to $1,000,000, in the period leading up to and following their separation in October 2010, asserting these funds were transferred to New Zealand accounts held by her mother in an attempt to conceal them from him.

The legal issues before the Court were whether it possessed the power to make the orders sought for the production of electronic documents and, if so, whether it should exercise that discretion in the circumstances. The husband contended that there was sufficient evidence, including reports of statements made by the wife and evidence of bank withdrawals, to suggest a deliberate attempt to hide assets. The wife opposed the orders, and the facts surrounding the alleged fund transfers were in dispute.

Justice Fowler acknowledged that the Court likely had the power to make such orders but emphasised that the exercise of this power was discretionary. The Court reiterated the parties' obligation to make full and frank disclosure of all relevant documents. However, it cautioned against "fishing expeditions" and stressed the importance of seeking documents directly related to the issues in dispute. The Court found that the husband's request for a broad bundle of electronic documents was not sufficiently directed, as it was unknown how many documents would be produced or to what extent they would relate to the matters in issue, potentially including privileged communications.

Consequently, the Court dismissed the husband's application for the broad production of electronic documents at that time. However, it granted the husband leave to issue such subpoenas as he might be advised, suggesting a more targeted approach to obtaining information, potentially from entities like Austrac, the wife's banks, or her mother. The costs of both parties were reserved to the trial.