LEWIS & DECKER

[2012] FamCA 516

FAMILY COURT OF AUSTRALIA

LEWIS & DECKER [2012] FamCA 516

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling – Admissibility - Letter of offer

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Lewis

RESPONDENT: Ms Decker

FILE NUMBER: MLC 8393 of 2009

DATE DELIVERED: 5 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fronistas

SOLICITOR FOR THE APPLICANT: John O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT: Wilsons Lawyers

Orders

1. That the further hearing of all outstanding applications be adjourned to a date to be fixed.

2. That judgment is reserved.

3. That the respondent file and serve any submission by 4.00pm on 13 June 2012.

4. That the application file and serve any submission by 4.00pm on 19 June 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewis & Decker 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 8393 of 2009

Mr Lewis

Applicant

And

Ms Decker

Respondent

REASONS FOR JUDGMENT

1. This is an application in the running of this trial for the admission into evidence of an annexure to the affidavit of the applicant. The affidavit was filed on 1 June 2011 and it is specifically annexure CRL3. Until a few minutes ago I had not read that letter at the specific request of counsel for the respondent. It transpires that at all times there has been an objection to its admissibility because of s 131 of the Evidence Act 1995 (Cth).Section 131 provides that:

   Evidence is not to be adduced to the communication made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.

2. It is quite clear that it is a form of negotiation.  It is an offer of settlement, dated 20 January 2011, only some three weeks or so prior to the final hearing.  The letter itself is written by the respondent’s lawyers and says that various chattels were to be valued and, upon the completion of the exercise, the various chattels were to be retained by each of the parties respectively.  Those items are set out quite clearly in the letter.

3. Section 131(2) provides that subsection (1) does not apply if evidence that has been adduced in the proceeding would be likely to mislead the court unless evidence of the communication, which is this particular annexure, was adduced to contradict or qualify that evidence.  It was put on the basis that this was an understanding between the parties that upon the settlement of the proceedings between them, the applicant in these proceedings would retain the various items. 

4. There was no response to that offer and nothing further occurred until the negotiations at the court when on 9 February 2011, the matter was finalised by orders. Unfortunately, the orders are in dispute.  On any view this is not a letter that can be seen to have been some form of understanding between the parties.  It is not an acknowledgement of ownership by the respondent.  It does not contradict or qualify the evidence of either of the parties.  On that basis, I rule it is inadmissible.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 June 2012.

Associate: 

Date:  18 June 2012