Fowles & Fowles (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fowles & Fowles (No 3) [2022] FedCFamC1F 386

File number(s): MLC 8587 of 2015
Judgment of: BENNETT J
Date of judgment: 30 May 2022
Catchwords:

FAMILY LAW – EVIDENCE – where 54 documents were marked as exhibits subject to identification in the course of the trial on the basis that the wife said that she would render such documents admissible in the proceedings absolutely at the conclusion of the case.

FAMILY LAW – EVIDENCE – Where husband was not prepared to accept the wife’s evidence as to how the documents came into her possession. 

FAMILY LAW – EVIDENCE – Where the wife ultimately addressed the admissibility of the documents in global, general submissions rather than addressing each document individually.

FAMILY LAW – EVIDENCE – Where the wife identifies 10 facts in issue but fails to satisfy the court that admitting the 54 documents (or any one of them) into evidence was capable of rationally effecting the assessment of the probability of a fact in issue.

FAMILY LAW – EVIDENCE – Where wife asserts that, alternatively, documents constituted admissions by the husband within the meaning of s 87 of the Evidence Act 1995 (Cth) and are therefore admissible absolutely- where court finds that contention is a misapprehension of the operation of s 87.

FAMILY LAW – EVIDENCE – Where wife asserts that, alternatively, documents are admissible by virtue of s 48 of the Evidence Act 1995 (Cth) – where the court finds that contention is a misapprehension of the operation of s 48.

FAMILY LAW – EVIDENCE – Where Counsel for the wife indicated an intention to rely on s 43 of the Evidence Act 1995 (Cth) to have the 54 documents marked subject to identification admitted into evidence as prior inconsistent statements- where the court finds that the contention would be a misapprehension of the operation of s 43.

FAMILY LAW – EVIDENCE – Where none of the documents were permitted to be received into evidence absolutely and are required to be removed from the bundle of exhibits.

FAMILY LAW – COSTS – where any party who wishes to make an application as to costs may do so in accordance with the Rules of Court.

Legislation: Evidence Act 1995 (Cth) ss 43, 48, 55, 56, 67, 69, 87, 88, 144, 167
Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited (No.1) (2012) FCA 1355; [2012] 207 FCR 448

Capital Securities XV Pty Ltd v Callega [2018] NSWCA 26

Commissioner of Taxation v Cassantiti (2018) 266 FCR 385; [2018] FCAFC 212

Fowles & Fowles (No. 2) (2018) 58 Fam LR 511; [2018] FamCA 498

Re Wollongong Coal Ltd (formerly known as Gujarat NRE Coking Coal Limited ) [2014] NSWSC 1952

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307
Division: Division 1 First Instance
Number of paragraphs: 95
Date of last submission/s: 12 October 2021
Date of hearing: 7-10 September 2021
Place: Melbourne (heard via MS…
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Details
Case
[2022] FedCFamC1F 386
Decision Date

CaseChat Overview and Summary

The case of Fowles & Fowles (No 3) involved a dispute between a husband and wife regarding the admissibility of certain documents in family law proceedings. The wife sought to tender a substantial number of documents, referred to as STI documents, into evidence absolutely. The husband objected to the admissibility of these documents, arguing that the wife had failed to demonstrate their relevance and probative value as required by law. The primary legal issue before the court was whether the wife had sufficiently demonstrated the relevance and admissibility of the STI documents under the Evidence Act. The court had to determine whether the wife's failure to identify and address each document individually in her submissions constituted a fatal flaw in her case.

The court found that the wife had not adequately justified the admissibility of the STI documents. The wife's counsel had failed to identify and discuss each document individually, instead taking a broad approach in their submissions. The court held that this general approach did not meet the legal standards for admissibility. The wife's legal representatives had significant time to prepare the case and establish the relevance of the documents, but they had not done so. The court emphasised that it was the wife's responsibility to demonstrate the admissibility of the documents, not the husband's to disprove their relevance through cross-examination. As a result, the court concluded that the wife had not discharged the burden of proving the admissibility of the STI documents.

Consequently, the court ruled that none of the wife's STI exhibits could be tendered absolutely. The court's decision highlighted the importance of meticulous preparation and clear legal argumentation in family law proceedings. The wife's failure to address each document individually and demonstrate its relevance resulted in the exclusion of the contested evidence. The final orders of the court reflected this decision, disallowing the wife's attempt to introduce the STI documents into evidence without proper substantiation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, I do not allow any of the wife’s STI exhibits to be tendered absolutely.EVIDENCE RELIED UPON At paragraph three of the written submissions of the wife in support of her application for leave, it is stated:The applicant relies on her Affidavits sworn 8 December 2017 and 7 September 2021, the oral evidence given in examination in chief of a nation chief and cross examination upon her recall, and the Notice to Admit filed 18 August 2017 and the Notice Disputing a Document filed 11 September 2017 with respect to these submissions. At paragraph one of the husband’s submissions in response, the husband objects to the wife’s reliance on her affidavit sworn 8 December 2017. It is stated:[the wife] now seeks to rely on her affidavit of 8th December 2017 notwithstanding that when she was permitted to reopen her case did not seek to rely on it and it is not included in the court book as an affidavit relied on the final relief. The husband objects to this late reliance on the affidavit of 8 December 2017 after the evidence has otherwise closed and after the cross examination of the wife has concluded. The husband is prejudiced as he has been denied the opportunity to consider whether there are matters within it he would have sought to make the subject of cross-examination. Notably, when Mr North refers to the evidence in chief and cross examination of the wife having been completed, he is referring to the evidence in cross examination within the application for leave to reopen her case. That was the second occasion upon which the wife entered the witness box, the first being in the early days of the trial when she was briefly cross-examined. On 9 September 2021, I had asked counsel for the wife to identify the evidence relied upon by the wife in her application for leave to re-open her case. Counsel for the wife had agreed with Mr North’s identification of the affidavits upon which he understood the wife was relying. However, for the avoidance of doubt, I required that Mr Sheales prepare a list of those affidavits. On 9 September 2021, Mr Sheales confirmed that the 13 documents relied upon by the wife were listed in the electronic court book under the heading “Documents relied upon by the Applicant Wife with respect to the Final Relief sought”. There was no mention of the wife’s affidavit of 8 December 2017 in the discussion between Mr Sheales and the court, during Mr Sheales’ discussion with Mr North or in the list of documents included in the electronic brief as being documents relied upon by the wife with respect to final relief sought. The wife’s submission in reply to the husband’s response was that the husband and his advisers have been in possession of the wife’s affidavit of 8 December 2017 for three and a half years and that Counsel for the husband could have cross examined the wife on the contents of that affidavit if he chose to do so. I do not accept that submission. Counsel for the wife should have identified the affidavit of the wife sworn on 8 December 2017 as a document relied upon if he was going to seek to rely upon it in his written submissions. He did not do so. It is irrelevant that the husband does not now identify any matters upon which his counsel would have cross-examined the wife had he been aware that the wife relied on the affidavit in question.

Decision

Reasons for decision

Section 48 of the Evidence Act is not an alternative means by which the wife can secure the admissibility of the documents in these proceedings which are marked STI. Counsel for the wife has either misinterpreted or misapplied s 48.CONCLUSION The single biggest obstacle to the admissibility of the 54 documents under consideration has been the failure of the wife to specify how each document sought to be tendered absolutely was capable of rationally affecting the assessment of the probability of a fact in issue. This was not the time for a broad brush approach. The wife’s submissions do not address the STI document methodically or individually, in spite of the very significant tie her legal representatives have and to prepare her case. The wife seeks to justify the presentation of her case on the basis that the husband has been aware for three and a half years that the wife maintains that the scheduled documents were all documents which emanated from the husband. However, the corollary of the wife’s approach is that her legal representatives have had three and a half years to structure her case so that the documents she has collected are admissible. I agree with the observation of Counsel for the husband that the general nature of the submissions made on behalf of the wife in this aspect of the proceedings has resulted in the court not being satisfied of relevance. Whilst there are some considerations common to all of the 54 documents marked “STI”, the admissibility of each such document must turn ultimately on a principled consideration of the evidence as it relates to the particular document. I accept the submission of Counsel for the husband that it is “not for the husband to go to the evidence given under cross-examination by him with respect to each document to examine whether it overcomes any deficiency in the wife’s proof. It was for the wife to demonstrate any such evidence that may help her in establishing all she needs establish in order to have a particular STI document exhibited accepted into evidence.” The wife has not supported her case with evidence that is catalogued and cross-referenced. The wife’s evidence is that she gathered documents which belong to the husband from one or other of four sources. Her legal representatives prepared schedules of documents and attached those schedules to her affidavit of 7 September 2021 describing each document by reference to its source. However, the wife’s legal representatives did not establish how each STI document was a copy of a particular document in one or other of the schedules relied upon by the wife. Very many documents have been tendered in evidence absolutely in this proceeding. The electronic court book records 143 exhibits tendered by the wife of which 54 are marked STI. The electronic court book records 35 documents tendered on behalf of the husband. The 54 documents marked STI are not documents which the husband is prepared to accept had been obtained by the wife from his possession, custody or control and with or without his consent.

Ratio Decidendi

Legal Principle Established

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