Jeeves and Jeeves

[2010] FamCA 258

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES [2010] FamCA 258

FAMILY LAW – RULING – Business records

Family Law Act 1975 (Cth)

APPLICANT: Ms Jeeves

RESPONDENT: Mr Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 8 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 22 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Molyneux QC with Mr Combes

SOLICITOR FOR THE APPLICANT: JA Middlemis

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

Orders

1. That the application of the wife to admit the evidence of the Commonwealth Bank records relating to 5 August 2003 as a business record under s 69 of the Evidence Act 1995 (Cth), is dismissed.

2. That the wife be permitted to rely upon the documents referred to in paragraph F of the outline of case document filed 19 June 2009 save for:

   ·Affidavit of Ms H sworn 12 December 2002;

   ·Affidavit of Mr E;

   ·Affidavits of Mr L other than that dated 18 June 2009 unless the other documents have been referred to in cross-examination or otherwise admitted into evidence.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

MS JEEVES

Applicant

And

MR JEEVES

Respondent

RULING

1. This is a ruling in respect of two matters consequent upon the completion of a long hearing.  The issue concerns the admissibility of evidence.

2. The substantive application before me is by the wife under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside orders made by consent in 2003.

The first ruling

The Bank Documents

1. In August 2009 there was agreement between counsel that various documents which each had tabbed could be admitted into evidence.  As I understand the husband’s position, he had agreed that they were being put into evidence not on the basis of the truth of the statements but rather as to the fact that the statements were made.

2. On the husband’s counsel’s subsequent reflection and as a result of the clarification of the wife’s position, the husband sought to revisit his concession.  The wife wanted the documents admitted to show that in 2003 before the orders were made, the husband told his bank various things in the same way as he told her just what he wanted her to know.  Her case is that he misrepresented the financial position and his future intentions.

3. The documents specifically in dispute appear to be dated 5 August 2003.  The final orders were made in December 2003. 

4. In March 2010, senior counsel for the wife cross-examined the husband about what he had said to his bank in August 2003.  The husband had no recollection of any conversation with the bank.  No evidence was led about the specific conversations if they took place.

5. It is the wife’s case that the husband lied to her…