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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fowles & Fowles (No 2)

Details

AGLC: Fowles & Fowles (No 2) [2018] FamCA 498
Case: [2018] FamCA 498
Decision Date: 3 July 2018

CaseChat Overview and Summary

In *Fowles & Fowles (No 2)*, Bennett J of the Family Court of Australia considered an objection raised during cross-examination concerning the authenticity of documents. The dispute arose in the context of a family law proceeding where one party sought to tender documents, and the other objected to questions put to them regarding the existence and form of those documents. The objection was framed around the proper application of the Notice to Admit procedure under the *Family Law Rules 2004* (Cth).

The central legal issue before the court was whether the cross-examining party was entitled to elicit admissions regarding the existence and form of documents, notwithstanding the opposing party's contention that the documents had not been properly admitted or that the Notice to Admit procedure had not been strictly followed. The court was required to determine the scope of permissible cross-examination in relation to documents and the interplay between the rules governing notices to admit and the general powers of the court to dispense with compliance with procedural rules.

Bennett J reasoned that the distinction between a document being "genuine" and "authentic" was not material to the immediate question of whether the witness could be compelled to admit to its existence or prior form. The court held that the purpose of a Notice to Admit was to avoid unnecessary proof of documents, and that the rules allowed for dispensation with compliance where it was in the interests of justice. Consequently, the objection to the line of questioning was overruled, allowing the cross-examining party to pursue admissions regarding the documents.

Orders