QLD Property Settlement - Is Evidence Inadmissible?

[Tamsin]

Hi everyone,
I'm in the process of a property settlement with my ex husband. My last affidavit contained a number of emails sent between him and his family which I accidentally came into possession of. He has just served me a response which states that I came into possession of the emails illegally and they should not be admitted. He isn't represented by a lawyer so this will just be his opinion. I've tried looking online for info but haven't come across anything relevant to family law, just criminal law.

So here is a brief rundown of how I got hold of these emails:
I moved out of my ex's house when we separated, but I stayed on the lease as I was entitled to half the bond when the lease ran out. I held onto the keys until I had managed to move out all my belongings, and tried to come to agreement with him over what I would take. One of the things I wanted was copies of the baby photos. We owned 3 hard drives and one of them was used exclusively by me and had copies of all the photos on it. I wanted to take that one and leave him the other two. My ex emailed me saying that he now used that hard drive and had important stuff on it so I couldn't have it, and that he would only give me copies if I gave him back the laptop, and it was all getting a bit petty. When I finally entered the house to take my belongings I took the hard drive. Honestly, I didn't believe what he said about having 'important stuff' on it. We had two others which he always used for himself and I only took the one I had always used myself.

When I looked on it I found a load of pornography saved in the same folder as the baby photos. I was annoyed and so went through the entire thing and deleted it all. That was when I found all these emails he had saved onto it, for some reason. The emails were between him and his family discussing the best way to offload assets and keep as much money as possible out of the asset pool for our settlement. They talked about how legally strong some loan documents might be that they had drawn up, and those loan documents are now his basis for taking $150k out of our asset pool.

So my question is, is there any reason that me submitting this evidence can be illegal?

 

[Sophea]

In circumstances where you were a party to the lease and had a right to be on the premises to remove your belongings and the hard drive was your joint property I don't see how you could have come across these documents "illegally". Its not like you've committed theft or trespassed to get the hard drive. Worst case scenario is that if for some reason they are illegal they simply won't be allowed to be admitted as evidence. They at least might be able to give the court a hint as to his character, and the fact that he will fight to have them removed will testify to their authenticity.

I invite a family law expert's opinion on this, but I would say just leave them in and wait for the court to decide.

 

[AllForHer]

If I was hearing this issue from the other party, I would suggest to him to try and have the evidence ruled inadmissable as it seems there is no evidence to suggest the hard drive was yours and not his, other than he-said-she-said. He could just as convincingly argue the hard drive was his since there is evidence on there that he used it, and he could argue it was taken without his consent, i.e. obtained illegally. As such, I can see where he is coming from.

However, I agree with Sophea above that you would be better to leave it for the court to decide, but I would add that it would be prudent not to depend on it to shape your case. Character has very little impact on property settlements, and unless you have coinciding evidence to show that he actually followed through with the intentions discussed in his e-mails, then it probably won't have that much of an impact.

Hope this helps.

 

[Tamsin]

Thanks for that guys.
Yes I have evidence that he followed through with every single thing discussed in the emails. They had some really dodgy loan documents drawn up and backdated, and he provided a signed Stat Dec to me about why they were backdated, which doesn't fit with the other evidence already given about the assets (evidence that isn't in contention at all). Then he gave the bulk of our asset pool away as repayment of this 'loan'. He admitted he did this but says he was entitled to do so because the liability is held jointly by us and has to be split 50/50. Which of course the court hadn't had time to decide yet. We were supposed to have a hearing for settlement back in September but he failed to file any evidence. The judge said he had to give him adequate time to do so and told him exactly what he wanted him to file as required evidence. but he never did and just offloaded everything instead!
Obviously I'm aiming to have this liability not included in the asset pool, and also to have the funds he offloaded added back. These emails are the basis of my argument. I read in some huge law book that to have an asset added back you need to have evidence of 'intent to reduce the asset pool, the action of disposing of an asset, and the fact that this action reduced the asset pool.' Those emails are my evidence of intent and I felt it was really important.

Can I just ask if as a married couple who had been living together for years, if something such as a hard drive would be owned by both of us and so either of us had the right to take it? It was my understanding that unless it was something sentimental or an heirloom that we both have rights to pretty much everything.

 

[AllForHer]

Technically, yes, the hard drive might be considered to belong to both of you, but looking at it from another perspective, who do the emails belong to? Do you have access to the source? Can you prove they're copies of the original emails and that they weren't amended somewhere in between?

It's a bit of an iffy area, but that's why I would leave it to the court to decide. I wish I could be more help but the court follows a less adversarial system in family law matters so some evidence is admissable where it otherwise wouldn't be in other civil matters. Let us know the outcome, I any case.

 

[Tamsin]

Yes I realized that some of the requirements of evidence are different in family law, which is why all the info I found on criminal law didn't seem totally relevant.
I suppose I will just present the copy emails as they are and explain that this is how I found them and I say I have not amended them at all. If the judge decides I did not come to have them 'illegally' and let them be admitted then the onus would be on my ex to prove they are wrong. If there are originals that differ from my copies, then of course he would be able to provide them to the court to show that he DIDNT plan to do the stuff he ended up doing.
I will definitely give you an update for posterity!