Naczek & Dowler (No. 2)

This ruling by Justice Cronin of the Family Court of Australia concerned objections to evidence raised by the husband in proceedings between Mr Naczek (applicant) and Ms Dowler (respondent). The dispute involved two main evidentiary issues: first, evidence relating to settlement discussions between the parties, and second, evidence concerning allegations made about the wife to the Department of Human Services.

The court was required to determine the admissibility of the wife's affidavit evidence regarding settlement discussions, specifically an email from the husband offering to settle a UK appeal, and evidence concerning allegations made about the wife to the Department of Human Services. The husband argued that the settlement discussion evidence was inadmissible due to privilege under section 131 of the *Evidence Act 1995* (Cth), and that the Department of Human Services evidence was hearsay, argumentative, and inadmissible.

Justice Cronin ruled that the husband's email offering to settle the UK appeal was inadmissible under section 131(1) of the *Evidence Act 1995* as it constituted a communication made in connection with an attempt to negotiate a settlement of a dispute. The court applied the principles from *Andi-Co Australia Pty Ltd v Meyers* and *Gpi Leisure Corporation Ltd (In Liq) v Yuill* to find that the email was prepared in connection with an attempt to negotiate a settlement, and that the absence of "without prejudice" wording was irrelevant, as per *Rodgers v Rodgers*. Regarding the evidence about the Department of Human Services, the court found that at this preliminary stage, the evidence could be admissible, provided it was not hearsay or if it fell within exceptions, and that the relevance of this intervention was still to be clarified.

The court ordered that the husband's email annexure was inadmissible. However, it did not rule other paragraphs of the wife's affidavit inadmissible at that stage, as they did not appear to disclose an attempt at negotiations. The court also permitted the evidence relating to the Department of Human Services to remain admissible for the time being, pending further clarification of its relevance and potential for cross-examination.