Descoteaux & Descoteaux

[2024] FedCFamC1F 326

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Descoteaux & Descoteaux [2024] FedCFamC1F 326   

File number(s)	PAC 1219 of 2021
Judgment of	WILSON J
Date of judgment	16 May 2024
Catchwords	FAMILY LAW – PROPERTY – applicant’s attempt to adduce affidavit – prepared for dispute resolution conference – objection to receipt of affidavit – tender rejected.
Legislation	Evidence Act 1975 ss 131(1), 132(g)
Division	Division 1 First Instance
Number of paragraphs	5
Date of last submission	16 May 2024
Date of hearing	16 May 2024
Place	Parramatta
Counsel for the applicant	Ms A. Gibbons
Solicitor for the applicant	MIC Lawyers
Counsel for the respondent	Mr B. Rosic
Solicitor for the respondent	John & Co Lawyers

ORDERS

PAC 1219 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS DESCOTEAUX

Applicant

AND

MR DESCOTEAUX

Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	16 MAY 2024

THE COURT ORDERS THAT -

1.The tender of the respondent’s 31 March 2023 affidavit is rejected.    

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Descoteaux & Descoteaux has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. Today is the fifth day of the trial of this proceeding. The respondent is under cross-examination.  He commenced his evidence yesterday soon after the commencement of the afternoon session once an extended period of time was devoted to resolving objections to his trial affidavit.  In the course of today's cross-examination counsel for the mother has sought to rely on an affidavit of the respondent made 31 March 2023.  Her purpose in cross-examining the respondent in respect of that affidavit was to elicit a prior inconsistent statement said to be reposed in the document 31 March 2023 affidavit and the evidence being adduced in answer to questions put in cross-examination.

2. An objection has been taken to the admissibility of the 31 March 2023 affidavit on various grounds the most pressed being that the affidavit was prepared for a dispute resolution conference to be conducted on 6 April 2023 before a senior judicial registrar of this court.  The debate about admissibility did not get terribly far before the respondent was asked to identify the document.  He expressed his disagreement about aspects of the document.  He did not adopt it in its entirety.  He said the signature allegedly his did not look like his. He gave evidence that the document was an early iteration of a document that was eventually made under rules applicable for execution of documents in COVID times and that the document that he was handed in the witness box during cross-examination was not the final version of the document.  In short, he eschewed the contents of the document.

3. That prompted counsel for the respondent to object to the document on two grounds. The first was that the witness had not adopted the document the second that the document appeared to be inadmissible because of its invocation of s 131(1) of the Evidence Act.[1]  The exception to the general prohibition of documents being adduced in the course of or in connection with a mediation is reposed in s 132(2)(g) of the Evidence Act.[2]  The fact that the document was prepared for or in connection with a dispute resolution conference seemed to be uncontroversial.  That would prima facie render it inadmissible.  The document has not been adopted by the witness in any event, he eschewing most of its provisions.  It therefore does not assume the status of a prior inconsistent statement and therefore it does not provide the evidentiary foundation for any questioning allegedly on the basis of inconsistencies in the respondent's evidence.

   [1] Evidence Act 1995, s 131(1).

   [2] Ibid, s 132(g).

4. On behalf of the applicant Ms Gibbons of counsel submitted that the document was sworn, it had been filed and she invited me to deduce that the witness's evidence of the fact that the document does not bear his actual signature and therefore is not his own document is false.  I cannot make that conclusion at this stage of the case.  I am dealing with an admissibility issue and a question as to overall veracity even for the purposes of admitting a document into evidence must await the rest of the trial which has yet to unfold.  Ms Gibbons submitted that the witness knew what he was writing when preparing the document.  Again that was not subject of any specific question put to the witness and I am not willing to conclude that the witness is being dishonest when he says that he does not embrace the document as his own.

5. The overwhelming basis of the rejection of the tender lies in the fact that the document was prepared for a dispute resolution conference.  Evidence purporting to address what goes on at a mediation, whether structured by court rules or by private agreement, is cloaked with an impenetrable privilege against admissibility unless waiver or exceptions for fraud are demonstrated, none of which have been shown in this case.

I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       16 May 2024