Franklin and Franklin

[2007] FamCA 1424

FAMILY COURT OF AUSTRALIA

FRANKLIN & FRANKLIN [2007] FamCA 1424

FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of evidence

Family Law Act 1975 (Cth)

APPLICANT: Mr Franklin

RESPONDENT: Ms Franklin

FILE NUMBER: DNF 225 of 2005

DATE DELIVERED: 27 September 2007

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Justice Strickland

HEARING DATE: 27 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Black

SOLICITOR FOR THE APPLICANT: Cecil Black Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Berman

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy Solicitors

Orders

1. The application by the husband to admit the ‘diary entries’ document into evidence be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Franklin & Franklin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNF 225 of 2005

MR FRANKLIN  

Applicant

And

MS FRANKLIN  

Respondent

EX TEMPORE REASONS

1. I have an application before me by the husband which arose during the trial that commenced before me on Monday 24 September 2007. 

2. On Tuesday 25 September 2007 whilst the husband was still being cross examined by Mr Berman, Mr Black foreshadowed that he would be making an application to present the contents of certain diaries allegedly maintained by Mr R Franklin senior, the husband's father, a witness in the husband's case. 

3. Mr Black told me that he had had a look at the diaries and his assessment was that they were not in an admissible form in that there were irrelevant matters contained in the diaries and also matters which would be considered hearsay.  He also indicated that he had given instructions to prepare what he described as 'a sanitised version' to then be presented as part of the evidence of the husband’s father. 

4. That matter was then left until Mr Black was in a position to present a document to me upon which there could be an application made and upon which I would hear argument and make a ruling.  Mr Black has now presented what he describes as 'a sanitised version' together with what he described as the copies of the original diaries of Mr Franklin senior, the husband’s father. 

5. Mr Black's application was that the sanitised version be received, be annexed to Mr Franklin senior's affidavit and when Mr Franklin senior gives his evidence, he would presumably swear to the truth of the facts contained in the sanitised version and the matter would proceed from there.  Mr Black advised that a copy of this version had been provided to Mr Berman earlier this morning.  Indeed, Mr Berman acknowledged receiving it at 7:30am today.

6. The application is opposed. 

7. I will deal firstly with what is described as the sanitised version.  It has now been handed up to me but it is apparent that it is simply not in admissible form.  Mr Black took me to one entry and I have taken myself to one or two other entries to get the flavour of what has been done with this document.  It is quite apparent that changes have been made from the diary entries which renders the sanitised version not a true representation of what was originally in the diaries.  Words have been changed, words have been added and Mr Black quite properly then has indicated he no longer presses the application to rely on the sanitised version.  Thus I can put that aside.

8. Mr Black though still presses the tendering of what he describes as the copies of the electronic diaries of Mr Franklin senior to the extent that Mr Franklin senior has been able to download the same from his computer.  It seems that he was able to only go back as far as 1997 with that exercise.  He was not able to recover anything prior to that.

9. Mr Black says that this is an important issue.  There is a substantial dispute between the parties.  As to what role, if any, the husband played in relation to the children and in the family as such since 1992/1993.  The wife's case is that the husband played little part in the lives of the children thereafter and it was just as though they were living in separate households.  She further says there was a separation of their finances which is a big part of the wife's case.  The husband denies these allegations.  He says there are reasons to explain his absence from Alice Springs in the middle years of the 1990s and he says that he has played a significant role in the care of the children up to the time of separation and he has been an active member of the family in the household throughout all relevant periods of time.

10. The problem is that these diaries have not been discovered.  The diaries had been kept over a period in excess of seven years to the extent that they have been able to be recovered.  Mr Franklin senior obviously was aware that he was keeping a diary of events which included the time he and his wife would spend with the husband and his family including the children. 

11. Mr Black put to me that on his instructions his client, the husband, first became aware of these diaries at about the time of the preparation of Mr Franklin senior's affidavit which was sworn on 24 August 2007 and filed on the same date.

12. Frankly, I find that difficult to accept given the history of this matter and particularly the fact that this is not the first affidavit that Mr Franklin senior has filed in this case.  There was a previous affidavit of 17 November 2005 which is a relatively short affidavit but it makes general comments such as, “every year for the past 10 years we have travelled to Darwin during the dry season and stayed there in a caravan park for three months.  Our last visit was during the 2004 dry season”.  It continues, “we came to Darwin especially to see our grandchildren and while we were in Darwin we saw [the husband], [the wife] and the boys all the time.  We would visit [L Street] several times a week, have meals there, sometimes babysat the boys.  [The husband] would cook the barbecue”.  It continues and makes general statements of the contact that Mr Franklin senior and his wife say they have had with the husband and the wife in these proceedings and their children over that period of time.  It seems to me that that is information that can come from the diaries that Mr Franklin senior had been keeping. 

13. Mr Franklin, the husband, was represented at that time, and this affidavit was prepared on his instructions.  Thus I find it a little hard to accept that the husband was not aware that his father was keeping a diary of events over the relevant period of time. 

14. Be that as it may, it is speculation on my part and Mr Franklin senior has not stepped into the witness box to give any sworn evidence as to this issue and all I have is what has been conveyed by way of instructions through his counsel.  Thus, I do not take that any further.  That is relevant but I am not going to base my decision on it.

15. What is important for me though is that the husband was certainly aware of these diaries since about 24 August 2007, yet they have not been discovered.  Further, there has been absolutely no mention of these diaries at any of the hearings that have taken place before me since 24 August 2007 and it is only on the second day of this hearing, namely Tuesday 25 September 2007 when Mr Black, as I have indicated already, referred me to these diaries.  Now I make no criticism of Mr Black.  He tells me that a downloaded version of the diaries was given to him for the first time late last Friday.  However, the husband cannot escape criticism.  There is an obligation on the husband to make full and frank disclosure of all relevant documents.  Documents include electronic documents.  The computer hard drive, for example - I assume where this diary was saved - was a discoverable document within the meaning of the Family Law Rules, and it is not as though the husband was unaware of his obligation to discover documents.  A significant proportion of the interlocutory proceedings that have taken place in this case have related to issues of discovery.  The wife, without looking at the rights or wrongs of it, has gone to extraordinary lengths to obtain the discovery which she says she needed for the purposes of running her case. 

16. The point about it is, in this case of all cases, the husband could be under no misapprehension as to the obligation to discover absolutely everything that had even the minutest relevance to these proceedings.  Yet here we have a situation where an electronic diary has allegedly been kept by his father, which prima facie, as Mr Black has put to me, could have vital significance in determining a very real dispute in this case.  Yet no discovery and even more to the point, not even a single mention of the fact that there were these diaries and an attempt might be made to present them by way of evidence.  Absolutely nothing was said about that.  In my view that is what is fatal to this application.

17. Rule 13.14 of the Family Law Rules provides as follows:

    “If a party does not disclose a document as required under these Rules, the party must not offer the document or present evidence of its contents at a hearing or trial without the other party's consent or the court's permission”. 

18. Now clearly the wife is not giving consent and what is being sought here is my permission.  As far as I am concerned it is outrageous for the husband to make this application at this stage of these proceedings given that he was aware of these diaries since at least 24 August 2007 or thereabouts.

19. I accept entirely the submissions of Mr Berman that this application, if successful, would place the wife in an intolerable position and one in which I do not propose to put her.  She has prepared her case diligently, and I had three separate hearings in September to deal with applications in relation to discovery, to deal with compliance with orders, to ensure that the matter was ready to proceed, yet this is what the husband attempts to do at the 11th hour.  It is simply not good enough.

20. Now even apart from that, I also accept Mr Berman's submissions that we do not have the original diaries.  I do not know what we have got because the chain of events is, apparently, the diary was downloaded or what could be downloaded was downloaded, it was scanned, the husband then prepared a document which was given to Mr Black and he rightly said “well, you need to sanitise it”.

21. I have sighted documents which look like copies.  They came from some other folder, and includes three or four documents at the start of the bundle which are not diary entries.  I do not know what to make of it and I certainly do not accept that I have the original documents before me on which to make a proper ruling.  They are clearly the third, fourth, maybe fifth or sixth version of the diaries. 

22. In a case like this where credit is a significant issue I repeat and, I use the word advisedly, it is outrageous for the husband to bring this document along at the 11th hour and suggest this is a document that should be presented in court on this vital issue.

23. Thus, I am not prepared to accede to the application for those reasons. 

24. If I need to add any weight to my ruling, I also refer to Section 135 of the Evidence Act which provides a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.  All of the above applies in my view. 

25. I also find that to admit these diaries would add and create another delay in these proceedings.  Apart from the fact that we do not know when we are going to get the original version and what that looks like, the wife would have to have time to consider it, deal with it, present further evidence maybe about it, and the husband would have to be recalled for further cross examination.  In my view the husband was well aware of the effect of this application in that regard when he instructed his solicitor to make it.

I certify that the preceding 25 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

Date: 27 September 2007