A salutary lesson for litigants is that whilst they are entitled to bring an action before the Court and have the Court answer a question, the answer or answers provided by the Court may not be the answer or answers desired by the litigant; or any of the litigants for that matter.
In Talbot & Norman  FamCA 96 (24 February 2012) Murphy J found himself confronted by a couple of unrepresented single parents who were in dispute over the prospect of Miss Sixteen aborting the child she was bearing. The Application was brought by the Father and he sought injunctive relief amongst his remedies. Ultimately the application of the Father was unsuccessful.
In arriving at his decision Murphy J made the following findings:
- The Family Court of Australia has power to make orders pursuant to Part VII of the Act in respect of ex-nuptial children in Queensland.
- There is “no common law right” of the husband or father which would enable him to force his wife or the mother to carry a child to term.
- At common law the unborn child has no right to protection against abortion.
- Accordingly there is no right that the husband or father may enforce on behalf of the child.
- A foetus has no legal personality and cannot have a right of its own until it is born and has a separate existence from its mother.
- The word “child” as used in the Family Law Act means a child once born.
- The Family Court of Australia does not have jurisdiction to make orders with respect to an ex-nuptial child in circumstances where the orders are directed toward a foetus.
- The jurisdiction of the Family Court of Australia in respect of ex-nuptial children extends only to ex-nuptial children once born.
These unrepresented single parents have asked the Court to decide a very significant question. This decision will remain good law until a subsequent Court rules otherwise. That is another salutary lesson for litigants.
"You can't always get what you want, but if you try sometimes, you just might find, you get what you need"
Ross Bowler LLB
When considering forensic discovery in relation to cloud computing, ponder this non-exhaustive list of issues canvassed recently by some legal eagles on Twitter:
- Who actually owns the digitised documents?
- To what extent has control of the subject documents been lost?
- Jurisdiction is certainly a live issue eg the Patriot Act & USA based servers
- The fact the documents are in the Cloud does not mean they are not under your control, if you can download them.
- If you can access the document, arguably you have sufficient control to produce it.
- There are probably all sorts of hidden copies and e-versions lurking on people's computers and servers.
- Would the obligation to maintain financial records require retention of versions of documents?
- There may be all sorts of copies and embedded data over which you may not have control.
- Metadata is just another document, albeit hidden.
- Should firms be 'scrubbing' e-documents?
- Not if they are in any way related to taxation records!
- The Australian Taxation Office (ATO) would almost certainly view scrubbing as willful destruction.
- It could be a breach of confidence not to scrub some documents.
- s262A ITAA 1936 is drafted broadly "all records that explain transactions"
- "All" means all; Not some, not a few or a bit; ALL!!!
- Courts are reluctant to read down ATO powers too.
- Does the "cloud" have an obligation of confidence?
- How does that confidence obligation compare to the ATO recovery powers, which have been interpreted by the Courts to override confidence?
- Is a failure to "scrub" a breach of confidence or privilege?
- Do we have a duty to know which applies?
- What if the document has been provided to the other side?
- What are the implications of "scrubbing" such a document?
- Vigilance is required for Operating System changes. It may impact on the version of the document stored.
- "Scrubbing" is a double-edged sword. The document can be useful to corroborate a story when sued.
- Documents sitting on third party email servers need to be considered.
- Third parties may have a real interest in the subject documents. Their rights need to be considered before "scrubbing" or destruction is undertaken.
- If the "scrubber" is a 3rd party, he may be compelled to produce the subject documents.
(See Australia and New Zealand Banking Group Limited v Konza  FCA 196 (9 March 2012) for the extent to which the ATO can compel production of documents)
This is by no means legal advice. However it is a suggestion to think carefully before venturing into the “cloud” for your document storage and any forensic discovery that may result from such a move.
Ross Bowler LLB