Fowles & Fowles (No 2) - [2018] FamCA 498

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO. 2)

[2018] FamCA 498

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling on objection to question put in cross examination – Notice to Admit procedure – distinction between “genuine” and “authentic” – dispensation with compliance with Family Law Rules 2004 – admission that documents exist or existed in that form.

Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011(Cth)

APPLICANT:

Ms Fowles

RESPONDENT:

Mr Fowles

INDEPENDENT CHILDREN’S LAWYER:

Excused from attendance

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

Tuesday 3 July 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

Friday 29 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Sheales with Dr Smith

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T North SC with Mr J Salamanca

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Excused from attendance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Excused from attendance

Order and ruling

To the extent that it is necessary to do so, I dispense with compliance by the applicant wife with r.11.07(b) of the Family Law Rules 2004.
It is proper to ask the husband why he disputes the genuineness of Exhibit “W36STI” but admits the genuineness of Exhibit “W37STI” and the objection of counsel for the husband in that regard is over ruled.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8587 of 2015

Ms Fowles

Applicant

And

Mr Fowles

Respondent

REASONS FOR JUDGMENT

In the eleventh day of this final hearing about financial matters including a final alteration of property interests, the husband is being cross examined about certain documents. If, and only if, I am satisfied that the documents were created by the husband or someone in cahoots with him, would the documents be relevant. Specifically, the documents could rationally affect (directly or indirectly) the assessment of the probability of wife’s assertion that the husband and others have fraudulently contrived to manufacture liabilities or entitlements in favour of the husband’s father which, if accepted as genuine, would significantly reduce or extinguish the value of legal and equitable interests of the husband for the purpose of these proceedings.
The wife has gathered together documents, which her counsel, Mr Sheales, describes as “300 pages” in number which he is struggling to prove through the respondent husband. In the event that the documents cannot be admitted through the husband, counsel for the wife says that he will put them into evidence in another way. The husband and his lawyers have been informed by the wife as to how she came to possess the documents. Specifically, this was deposed to by the wife at paragraphs 141 to 171 (inclusive) of the wife’s trial affidavit sworn on 30 January 2018. Most of the wife’s material, at paragraphs 141 to 171 (inclusive) of her trial affidavit was struck out in the first days of the final hearing. Whilst it does not constitute evidence before me, I am satisfied that the husband is aware of the wife’s account of the providence of the documents. Otherwise, the husband denies that he is the author of the documents and that he has worked with his father or anyone else to construct documents to prejudice the wife’s entitlement in this proceeding.
The wife sought to obtain admissions from the husband in accordance with procedures under the Family Law Rules 2004 (“FLR2004”). In particular by serving Notices to Admit
These reasons explain why have I have over ruled the objection of Mr North SC (for the husband) and will allow counsel for the wife (Mr Sheales) to ask the husband why the husband has admitted the genuineness or authenticity of Exhibit “W37STI” but disputes the genuineness or authenticity of Exhibit “W36STI”. “STI” indicates that the documents have been allocated an Exhibit number but have been marked subject to identification. They will not be put into evidence unless appropriately identified.
Chapter 11 of the Family Law Rules 2004 sets out ways in which the court may manage a case to achieve the main purpose of the Rules, which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case[1], including limiting the issues in dispute. The opening note to Part 11.2 records that:-
To reduce cost and delay, parties are encouraged to make admissions in relation to facts and documents. The admission is for the purposes of the case only, in order to narrow the issues in dispute. A party should give the other party written notice of any admissions as early as practicable in the case. For example, if admissions are made before the disclosure process, disclosure may be able to be limited and the costs of the case reduced.
[1] Rule 1.04 Family Law Rules 2004
The procedure for requesting an admission and disputing a fact or document are set out in Rules 11.07, 11.08 and 11.09 of the Family Law Rules 2004 (“FLR2004”).
Rule 11.07 provides that a party may, by serving a Notice to Admit on another party, ask the other party to admit, for the purposes of the case only, that a fact is true or that a document is genuine. The Notice to Admit must include a note to the effect that failure to serve a Notice Disputing a Fact or Document will result in the party being taken to have admitted that the fact is true or the document is genuine. If a Notice to Admit mentions a document, a copy of the document must be provided.
Rule 11.08 provides that, if a party who is served with a Notice to Admit seeks to dispute a fact or document specified in the Notice, the party must serve on the party who served the Notice, within 14 days after it was served, a Notice Disputing the Fact or Document. If a party does not serve a Notice Disputing the Fact or Document, the party is taken to admit, for the purposes of the case only, that the fact is true or the document is genuine. If a party serves a Notice Disputing a Fact or Document and the fact or the genuineness of the document is later proved in the case, the party who served the Notice may be ordered to pay the costs of proof.
Rule 11.09 provides that a party may withdraw an admission that a fact is true or a document is genuine only with the court’s permission or the consent of all parties and, when allowing a party to withdraw an admission, the court may (or may not) order the party to pay any other party’s costs thrown away.
On the first day of the final hearing I ruled against Mr North’s submission that the wife was entitled to file only one Notice to Admit[2]. There are two Notices to Admit relied upon by the wife. Namely:-
a)the applicant wife filed and served Notice to Admit (and the authenticity of documents) on 18 August 2017 to which the husband responded with a Notice Disputing a Fact or Authenticity of Documents dated 4 September 2017.
b)the applicant wife filed and served a Notice to Admit (and the authenticity of documents) on 23 February 2018 to which the husband responded with a Notice Disputing a Fact or Authenticity of Documents dated 19 March 2018.
[2] Transcript-in–Confidence 19 March 2018, pages 5 and 6
It is not disputed that the documents mentioned in the Notices to Admit were discovered in the usual course and a copy provided in hard form and electronically. No issue is taken as to the timeliness of service of the Notices Disputing.
Each Notice to Admit included as Part D notice about the effect of the Notice to Admit. The note was in upper case as to part (as below) and wholly in bold print:-
AND FURTHER TAKE NOTICE if you do not, within 14 days after service of this notice upon you, serve a notice on the said [MS FOWLES] disputing any facts (and the authenticity of any document) above specified, that fact, (and the authenticity of that document) shall, for the purpose of these proceedings, be admitted by you.
13. In the course of cross examination, senior counsel for the husband objected to the husband being asked why he had seen fit to admit that one document (Exhibit “W37STI”) was genuine but disputed that another very similar document (Exhibit “W36STI”) is genuine. Both documents contain some identical material some of which is misspelt and are otherwise similar in that they are spreadsheets of assets and liabilities with certain notations. They bear different dates and the documents which bears the later date (“W37STI”) is more detailed that the earlier document (“W36STI”). For instance, “W36STI” contains a note
Possible Sweetner [Mr G] will give [Ms Foles] a gift of $1 for 10 years if She gives [Mr Fowles] custody of the child
and “W37STI” contains a note:-
“[Ms Fowles] gets $750
$500 in cash and $30K per year for 10 years
Joint custody of the child”
The husband’s father is Mr G Fowles. The parties’ only child is known as “D”.
The authorship and purpose of each document, and many others, is in issue as is from whence the wife sourced the documents.
The gravamen of Mr North’s objection is that, in respect of each Notice to Admit actually served, the husband was asked to admit the authenticity of documents rather than the genuineness of documents.
There is no prescribed form for a Notice to Admit or a Notice Disputing in the FCR2004. It appears that both practitioners amended the approved form prescribed by the Federal Circuit Court Rules 2001 (“FCCR2001”) for use pursuant to Division 15.5 of the FCCR2001. Relevantly, the FCCR2001 refer to the admission or disputation of the “authenticity” of a document. The FCCR2001 make no reference to “genuineness” or to a document being “genuine”.
As indicated above, r.11.07(2) FLR2004 provides that “[a] Notice to Admit must include a note to the effect that, under sub-rule 11.08(2), failure to serve a Notice Disputing a Fact or Document will result in the party being taken to have admitted that the fact is true or the document is genuine.” In this case, the note referred to the “authenticity of that document” rather than whether it was genuine.
The Macquarie Dictionary[3] defines authentic in the context of documents as “of the authorship or origin reputed; of genuine origin”. It defines genuine as being truly such; real; authentic.
[3] S Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017)
The Shorter Oxford Dictionary on Historical Principles[4] defines authentic as being of undisputed origin; genuine. It defines genuine as “1. really coming from its stated, advertised or reputed source. 2. Properly so called; not a sham”.
[4] A Stevenson (ed), Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007)
The Australian Oxford Dictionary[5] defines authentic as real actual, genuine, original, first hand; really proceeding from its stated source. It defines genuine as having the character claimed for it; real, true, not counterfeit.
[5] B Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2nd ed, 2004)
Neither Roget’s Thesaurus[6] nor The Macquarie Thesaurus[7] have a specific entry for either authentic or genuine. However, in Roget’s Thesaurus authentic is given as a synonym for genuine under the entry for ‘Truth’. The Macquarie Thesaurus gives authentic and genuine as synonymous in the entries for ‘Faithfulness’ (3.6 therein); ‘Honesty’ (3.3 therein); ‘Propriety’ (4.4 therein); and ‘Truth’ (3.2 therein). In particular, under ‘Truth’ there appears:-
authenticity, validity, realness, genuineness; the real Simon Pure, the real McCoy, the real thing, the very thing, the genuine article.
[6] B Kirkpatrick (ed), Roget's Thesaurus (Penguin Books, New Edition, 1998)
[7] R Tardif (ed), The Macquarie Thesaurus (Macquarie Dictionary Publishers, 2nd ed, 2007)
I conclude that in general usage as well as in the context of the Family Law Rules 2004 the term authentic is synonymous with the term genuine and that authenticity is synonymous with genuineness.
To the extent that the wife’s practitioners drew the notice to admit by reference to the “authenticity” of documents rather than the fact of the document being “genuine”, as is required by r.11.07(2) FLR2004, I am satisfied that the use of the words are interchangeable. It is not ideal but, on examination, it is a distinction without a difference.
To the extent that the Notices to Admit are non-compliant with r.11.07(2) FLR2004, I may dispense with compliance with the FLR2004. Rule 1.12(2) FLR2004 provides for dispensation at any time before or after the occasion for compliance arises and that in considering whether to do so, I may consider:-
(a) the main purpose of the FLR2004;
(b) the administration of justice;
(c) whether the application has been promptly made;
(d) whether non‑compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.
In this case, I would dispense with compliance with that part of r.11.07(2) FLR2004 insofar as it required reference to the document being “genuine” for the following reasons:-
·The husband and his lawyers have at all material times had adequate indeed generous, notice of the documents which the wife was seeking to put into evidence or about which she would seek to adduce evidence.
·The husband has admitted the authenticity of documents.
·The process of limiting issues in litigation is provided by the FLR2004 and not the forms.
·I am satisfied that in admitting the authenticity of any documents in the manner he did, the husband was admitting that the document was genuine. Both Notices Disputing reference “Family Law Rules – RULE 11.08” in the banner on the front page. There is no ambiguity in r.11.08(2) FLR2004. It refers to a document being “genuine”, not “authentic”. It does not behove the husband to file a document the purpose of which is the admission or disputation of a document as being “genuine” and to now contend that he was admitting or disputing something different (ie. authenticity). It would be contrary to the interests of justice for the husband, through senior counsel, to exclude “genuine” from the concept of “authentic” for the purpose of Chapter 11 of the FLR2004 and in the circumstances of this case.
·The wife has closed her case on the basis of the husband’s Notices Disputing Facts and the authenticity of documents.
·The non-compliance represents a lack of attention to detail but it was not intentional. The lack of attention to detail was replicated by or on behalf of both parties.
·The procedure undertaken to date has been a procedure which is substantially fair and reasonable.
·The husband has not been misled.
·These proceedings are already running well over the time for hearing estimated by counsel and allowed by the court and further delays should be discouraged.
·There is provision in r.11.09 FLR2004 for the husband to apply for permission to withdraw his admission. I say nothing about his prospects of success in the event that he does so but he is not without any means of relief.
Central to the debate is the import of the husband’s admission as to genuineness and/or authenticity of certain documents as part of the Chapter 11 procedure. That is a matter on which I will make findings in due course having regard to the Notices Disputing and the admissible evidence adduced by each party. However I will make some preliminary comment about the Chapter 11 procedure.
I understood Mr North’s original submission to be that the husband’s admissions amounted to no more than an acknowledgment that the description of the document in the Notice to Admit was accurate. That is clearly not the case.
Later Mr North’s submitted, correctly in my view, the utility of an admission will depend upon what the document is on its face. Here the respondent husband was not asked to admit where documents came from and or who was the author of documents.
To the extent that Mr Sheales submitted that the husband had admitted the wife’s description of how the documents came to be in her possession, because the documents were identified as annexures to the wife’s affidavit in which she provided a narrative of where the documents are located, that is not correct. Much of what the wife deposed to about sourcing the documents was struck out and is not in evidence before me.
In considering the import of the husband’s admission, I am attracted to the definition of “authenticity of a document” as provided in the Federal Court Rules 2011. Part 22 of the Federal Court Rules 2011 (”FCR2011”) provides a procedure for admissions as to the truth of any fact and the authenticity of any document by a notice to admit facts of documents and a notice disputing facts or documents. Notably the “authenticity of a document” is defined in the Dictionary[8] to the FCR2011 as follows:-
authenticity of a document means:
(a) if the document is an original — it was created, printed, written, signed and executed as it purports to have been; or
(b) if the document is a copy — it is a true copy.
[8] Schedule 1 to the FCR 2011 (rule 1.51)
Where the husband has not disputed the authenticity of a document which is the subject of a Notice to Admit, he has admitted that the document exists or has existed in that form. However, the authenticity or genuineness of a document is a separate question to the authorship, location, truthfulness or probative value of a document.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 July 2018.

Associate:

Date: 3 July 2018