HAYES & EDDINGTON
[2014] FamCA 243
•24 March 2014
FAMILY COURT OF AUSTRALIA
| HAYES & EDDINGTON | [2014] FamCA 243 |
| FAMILY LAW – EVIDENCE – Admissibility – Legal Personal Representatives of the Estate of the Respondent objected to the whole of the evidence in an affidavit of the applicant - the court refused to admit that evidence as its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the respondents FAMILY LAW – EVIDENCE – Admissibility - Legal Personal Representatives to the Estate objected to part of the evidence in an affidavit of the solicitor for applicant as it was evidence of communication made between the late respondent and the applicants solicitor in connection with an attempt to negotiate a settlement of the dispute |
| Family Law Act 1975 (Cth) pt VIIIAB |
Evidence Act 1995 (Cth) ss 131, 135
| APPLICANT: | Ms Hayes |
| RESPONDENT: | Mr Eddington |
| FILE NUMBER: | MLC | 2949 | of | 2012 |
| DATE DELIVERED: | 24 March 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 24 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John SC |
| SOLICITOR FOR THE APPLICANT: | C E Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld QC |
| SOLICITOR FOR THE RESPONDENT: | C Lanteri & Associates |
Orders
Pursuant to s 131 of the Evidence Act 1995 (Cth) the applicant be refused leave to rely upon paragraphs 6, 7 and 8 of the affidavit of Mr B filed 17 February 2014,
Pursuant to s 135 of the Evidence Act 1995 (Cth) the evidence contained in the applicant’s affidavit filed 17 February 2014, is excluded.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2949 of 2012
| Ms Hayes |
Applicant
And
| Mr Eddington) |
Respondent
EX-TEMPORE
REASONS FOR JUDGMENT
These reasons relate to questions of evidence in the context of an application by the Legal Personal Representatives of the Estate of the late Mr Eddington seeking to strike out the proceedings for want of jurisdiction, being the proceedings commenced by Ms Hayes claiming an adjustment of property pursuant to Part VIIIAB of the Family Law Act 1975 (Cth). In the context of that jurisdictional determination, the applicant sought to rely upon two affidavits: one by her sworn and filed on 17 February 2014 and the second, an affidavit by Mr B sworn 15 February 2014 and filed 17 February 2014. Senior Counsel for the Legal Personal Representatives of the Estate of the late Mr Eddington asked the Court to exclude all or parts of that evidence from the material upon which the jurisdictional determination is to be made.
In terms of the affidavit of Mr B, there is what could be described as mild objection to paragraphs 1, 2, 3, 4 and 5 and significant objections to paragraphs 6, 7 and 8. In relation to the latter three paragraphs the objection arises pursuant to s 131(1)(a) of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The first part of that objection I will deal with is the objections regarding paragraphs 1, 2, 3, 4 and 5. It seems to me that much of the material contained in those paragraphs is already before the Court and is perhaps not that contentious. There is no doubt that on about 4 April 2012, the applicant commenced proceedings in this Court seeking unspecified orders arising out of a de facto relationship with the late Mr Eddington. It is not in issue that the applicant was legally represented at that time nor is it an issue it seems, on the evidence, that no efforts were made of any meaningful nature to serve those documents upon Mr Eddington prior to May 2012, in fact no meaningful effort was made to serve those documents until July 2012. The question arises as to what the relevance of that material may be and what difference it will make but my role is not to determine the question of relevance in relation to that material and I will permit those paragraphs to be read.
Paragraphs 6, 7 and 8 fall into a different category. They are the ones to which the objection under s 131(1)(a) applies. Mr St John of Senior Counsel submitted that paragraph 6 doesn’t fall into that category, I disagree with him.
I am satisfied paragraphs 6, 7 and 8 need to be read together to give real meaning to what is being asserted.
On 4 May 2012, Mr B says that he telephoned Mr Eddington for the purpose of ascertaining if he was willing to engage in an appropriate negotiation process to resolve financial issues with the applicant. Paragraph 7 of that affidavit records that he made a record of that conversation and paragraph 8 annexes the memoranda of attendance in relation to that conversation. Section 131 (1)(a) of the Evidence Act 1995, provides:-
Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute;
It is not argued before me that any of the exclusions preventing the operation of s 131(1)(a) under s 131(2) applies.
The question I have to determine is whether in exercising my discretion, there has been a communication [in the context of the s 131(1)(a)] between persons in dispute or a person in dispute and a third party. Mr B was acting for the applicant at the time of that discussion that is part of his evidence. It is also clear from his evidence that he at least intended that conversation to be the start some form of engaging in an appropriate negotiation process. It is equally clear that at that time, proceedings had commenced and that no steps had been taken by the applicant or those on her behalf to inform Mr Eddington of the proceedings filed in this Court.
It is not clear from the file note [of Mr B] or from the affidavit whether Mr B did or did not inform Mr Eddington of the proceedings. Having read the affidavit of Mr C filed 28 May 2013, it is clear from the letter provided by Jacque Philip [acting for the applicant] that prior to the service of documents, the applicant was endeavouring to resolve the financial and related issues through direct negotiation and that service of the documents was deferred because of those discussions. To that end, I had reference to annexure RG-2 of Mr C’s May 2013 affidavit.
In his file note, Mr B notes firstly, in the first substantive paragraph, that he informed Mr Eddington that he acted for the applicant and wanted to engage in an appropriate negotiation process to resolve financial issues. In the third last paragraph, he records that Mr Eddington asked how much the applicant wanted, what was the figure and that Mr B tried to direct the conversation away from outcomes towards process options. Mr B raised with Mr Eddington, from the applicant’s perspective including financial security, family relationships and Mr Eddington brought him back to ask him what figure the applicant wanted and he would accept or reject it. There was some discussion about the impact against his estate.
This was the commencement of the negotiation and as Mr Bartfeld [Senior Counsel for the Legal Personal Representatives of the Estate of the late Mr Eddington] had said, it had all of the classical characters of a negotiation or the beginning of negotiation.
It hadn’t reached the stage where offers were being made and offers were being accepted but, certainly, it was a process towards a negotiation. It was clear at this stage that Mr Eddington had not employed a legal practitioner for the purpose of any proceedings as it was unlikely at least, at best, until that time that he did not know that the proceedings were in place. I am satisfied that this communication between Mr Eddington and Mr B, a related third party, was in connection with an attempt to negotiate a settlement, albeit the very beginning of that proceeding.
I accept the submission made by Mr Bartfeld on behalf of Legal Personal Representatives of the Estate of the late Mr Eddington in that respect and, I exclude the evidence contained in paragraphs 6, 7 and 8 of Mr B’s affidavit filed 17 February 2014.
The second affidavit, which is the subject of an application for exclusion, is that of the applicant filed and sworn on 17 February 2014. In that affidavit, the applicant asserts a number of things. Firstly, she corrects the factual mistakes she says is contained in her first and second affidavit as to the date she confronted Mr Eddington and told him that the relationship was over [she says it was earlier in June 2012. In the context of this application, that evidence is neither here nor there. It serves neither one purpose nor another.
The significant aspect of this affidavit is contained essentially in paragraph 5 of the material where the applicant says this:-
I now believe and accept that whatever I had hoped and believed at the time, from [Mr Eddington’s] perspective [emphasis added] our relationship broke down before I announced my attention to separate from him on 15 June 2012. I cannot precisely identify when that date was, save that it was not earlier than early-January 2012 but was prior to late March 2012.
The applicant then goes on to say how she came to that conclusion as to what was her view as to Mr Eddington’s state of mind, and she sets that out in paragraphs 6 through to 24 of her affidavit. The complaint by the Legal Personal Representatives of the Estate of Mr Eddington relates to s 135 of the Evidence Act in that they assert that the evidence provided in that affidavit by the applicant is such that the Court should refuse to admit such evidence as its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the respondents.
It is necessary to reflect on the facts and circumstances of this matter in the context of that approach. It is not in issue that Mr Eddington was born in 1949 and the applicant was born in 1962. Their son, D, was born in 2006 and it is not in issue that he is the son of Mr Eddington and the applicant.
On 4 April 2012 the applicant filed an initiating application and in that application she provided no date of separation in respect of an alleged de facto relationship. She stated in that application that this information was ‘not applicable’.
On 1 November 2012 she filed an amended application putting the date of separation as at 29 June 2012, and sought both final and interlocutory declarations as to a de facto relationship commencing some time in 1998 and ending in June 2012.
Each of the parties filed evidence in support of their respective cases. The evidence of the applicant was consistently and persistently that the relationship between her and Mr Eddington, except for two relatively short periods of separation, ran from 1998 through to June 2012. She was clear in that evidence, and her evidence was contained in a number of affidavits, which were prepared by her with the assistance of legal practitioners.
The case of Mr Eddington was that at no time did he and the applicant live together in a de facto relationship. The applicant adduced evidence from a number of witnesses in which the circumstances of the end of the relationship were alluded to in June 2012, and the relationship having continued to June 2012.
Unfortunately for all involved, Mr Eddington was unwell and his illness was such that his health was failing. He passed away on 13 February 2013. This was apparently just prior to a special hearing to enable his cross-examination to take place.
In May 2013 his legal personal representatives applied to this Court for a number of orders, the first being an order that they be permitted to act in his place under s 90SM(8) of the Family Law Act 1975 (Cth) and that order was made. They also sought an order that the proceedings be dismissed as on the basis that this Court had no jurisdiction to determine the applicant’s Part VIIIAB property and maintenance applications.
The proceedings came before Bennett J later in 2013 and a number of documents were then filed. The first was filed on 29 August 2013,[1] and apparently served, which were the submissions on behalf of the Legal Personal Representatives setting out the basis upon which they believed that there was no jurisdiction, and relying upon the circumstance as they saw it that at the time the proceedings were commenced, that is 4 April 2012, the Court had no jurisdiction.
[1] Exhibit “E1”.
Submissions were filed in response later that year, on 27 November 2013.[2] The first submission was Exhibit E1, the second prepared by Mr St John was Exhibit H1. There was a response to that which was filed on 15 January 2014.
[2] Exhibit “H1”.
It was in this context that the applicant sought [by way of her affidavit filed and sworn 17 February 2014] to rely on such affidavit giving evidence as to [her opinion of] the state of mind of Mr Eddington as at the period commencing sometime between January 2012 and late March 2012.
I have been provided with authorities from senior counsel for both sides, commencing with Dyldam Developments Proprietary Limited v Jones [2008] NSWCA 56; Ordukaya v Hicks [2000] NSWCA 18 and Ainsworth v Burden [2005] NSWCA 174, 21 June 2005. I have been directed to Odgers on Uniform Evidence Law, 10th Edition, in relation to the exercise of discretionary exclusion of evidence, particularly in relation to cases such as this where the determiner of fact is a single judge as distinct from a jury.
My task is to consider whether or not to refuse to admit that evidence on the basis that its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the respondents. And it must be seen in the context of not being simply prejudicial, because all evidence is in one form or another prejudicial, it has to be seen from the authorities as being unfairly prejudicial; and whether the probative value is substantially, and I emphasise the word substantially, outweighed by the danger that it might be unfairly prejudicial.
In this case each of the parties had filed detailed evidence with regard to the substantive proceedings and, in particular, the nature of the relationship that existed before them. The affidavits of the applicant went for some 85 or so pages. It was prepared with the assistance of learned counsel.
Mr Bartfeld submitted that the probative value in this case, the applicant’s views as to the state of mind of Mr Eddington, was not of significant probative value. And, further, that it is something that was available to her, if she asserted it, at a time when Mr Eddington was alive.
Mr Bartfeld says, and I accept, that the timing of that affidavit has to be seen in the context of the determination to be made by me, that is, after the submissions were made and after the application with regard to the summary dismissal of the proceedings on the basis that the jurisdictional facts do not enliven the Court’s jurisdiction. He submits that the state of mind of Mr Eddington was the only material to which he could have given evidence, rather than any other witness.
Mr St John, in his submission, said there were other witnesses who could give evidence as to the surrounding circumstances. There are, but not to the extent as to the state of mind of Mr Eddington.
The Estate is unable to, effectively, respond to such material, and that material was open and available for the applicant to detail in any one of the two affidavits she filed in anticipation of this matter for hearing. The nature of the evidence, itself, is somewhat curious, to say the least. The applicant is asking the Court to make findings against what it is that she is asserting in her own case. I am not satisfied that the unfair prejudice to the case of the Legal Personal Representatives of the Estate of the late Mr Eddington can be cured by an adjournment of the proceedings.
I accept the submission of Mr St John that the law in relation to s 135 of the Evidence Act can be construed broadly or narrowly. That is, no doubt, because it is a matter for the exercise of discretion by a judicial officer, given the circumstances, and the wide variety of circumstances in which such issues arise.
I generally accept the submission of senior counsel on behalf of the Legal Personal Representatives of the estate of Mr Eddington, and I am satisfied that the Court should refuse to admit the evidence as its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to the respondents, and I do so.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 March 2014.
Associate:
Date: 24 March 2014
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