When Emails Become Property: A Quiet but Profound Shift in Australian Family Law

A recent decision of the NSW District Court has made an important — and largely under-appreciated — shift in Australian law: emails and text messages can constitute “property” for the purposes of criminal law.

While the case arose in a criminal appeal, its implications extend well beyond assault law and directly into family law, property disputes, evidence handling, and allegations of coercive or unlawful conduct during separation.

This is one of those decisions that will not immediately change forms or legislation — but will quietly reshape arguments, defences, and evidentiary boundaries in family law matters across Australia.

The Case in Brief

The matter concerned an appeal from a Local Court conviction for common assault. During a domestic dispute, a man used limited physical force to prevent his estranged wife from continuing to read emails addressed to him on an iPad.

On appeal, Garry Neilson overturned the conviction, finding that:

• Emails addressed to an individual can constitute property, and

• A person may, in limited circumstances, use reasonable force to prevent interference with that property.

Importantly, the iPad itself was not owned by the appellant — it belonged to a third party — yet the content being accessed was still considered his property.

This distinction between device ownership and content ownership is the critical legal development.

Why This Matters for Family Law

Family law disputes increasingly involve:

• One party accessing the other’s emails, cloud accounts, or messages

• Screenshots, forwarded messages, and “found” digital material being tendered as evidence

• Allegations of coercive control or misuse of technology

• Claims that digital access was “shared” or “implied”

This decision undermines the casual assumption that digital communications are fair game simply because a device was shared or accessible during a relationship.

If emails and messages are property, then unauthorised access, copying, or interference may carry legal consequences beyond privacy or ethics.

Digital Property vs Digital Evidence

This ruling draws a subtle but crucial distinction:

• Digital evidence answers the question: Is the material relevant and admissible?

• Digital property asks first: Was the material lawfully accessed in the first place?

That distinction matters in family law because courts often admit evidence pragmatically, sometimes overlooking how it was obtained.

This case strengthens arguments that:

• Illegally or coercively obtained digital material should be scrutinised

• Accessing a partner’s emails without consent may be interference with property

• Evidence gathered through such interference may be unreliable or unlawfully obtained

Implications for Allegations and Counter-Allegations

In high-conflict separations, it is common for one party to allege:

• Surveillance

• Monitoring

• Financial or emotional control via technology

This ruling cuts both ways.

It:

• Supports genuine claims of digital interference and misuse

• But also restrains over-reach where one party claims entitlement to another’s communications simply because of proximity, shared living arrangements, or prior password access

In short, “I had access” is not the same as “I had the right.”

A Broader Trend the Law Is Catching Up To

Australian law has long recognised physical mail as property. This decision simply updates that logic for modern communications.

It reflects a broader judicial recognition that:

• Digital communications are not ephemeral or ownerless

• They carry personal, legal, and proprietary characteristics

• The law must adapt to technological reality rather than ignore it

For family law, this is not a revolution — but it is a recalibration.

What Parties Should Take Away

For separating couples, lawyers, and self-represented litigants alike:

• Do not assume access equals consent

• Be cautious about how digital material is obtained and used

• Understand that improper access can weaken, not strengthen, a case

• Expect increasing scrutiny of digital conduct during and after separation

As family law continues to grapple with technology-driven disputes, decisions like this will quietly shape the boundaries of acceptable conduct.

They also reinforce a central principle often lost in high-conflict litigation:

The end of a relationship does not dissolve individual legal rights — including rights over one’s own communications.