Naczek & Dowler (No. 6)

[2008] FamCA 1155

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER (NO. 6) [2008] FamCA 1155

FAMILY LAW – RULING – Admissibility of evidence

Family Law Act 1975 (Cth)

APPLICANT: Mr Naczek

RESPONDENT: Ms Dowler

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1222 of 2006

DATE OF RULING: 20 February 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1222 of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

INDEPENDENT CHILDREN’S LAWYER

RULING

1. On 20 February 2008, I made a ruling that Senior Counsel for the wife who was cross-examining the husband could put to him some questions from a document in the possession of the wife.  I said I would later give reasons for that ruling and these are those.

2. This is an application by the husband seeking the predominant role as parent of two children who have lived with the wife in Australia since 2005.  Both children are adopted but it is common ground that subsequent to them coming to live with the husband and wife in infancy, they have predominately been cared for by the wife.  The wife has not worked outside of the home.  The husband is a senior executive with an international company.

3. The parties had been living in London when their marriage relationship ended and in 2005, there were proceedings in the English courts.  Those proceedings involved financial matters.

4. The parties ultimately reached agreement that the wife could move the children back to Australia.  Australia is the wife’s place of birth.

5. The proceedings before me relate to the husband’s application to remove the children from the wife for a number of reasons which will become apparent in the proceedings.  It is the husband’s desire to take the children back to London to live with him.

6. In the course of cross-examination of the husband, a significant amount of time was spent on the question of the relationship between the parties in England and in particular, the hostilities between them.  Before me, the husband conceded that he had said offensive things to the wife and she to him.

7. As the cross-examination unfolded, Senior Counsel for the wife produced a document dated 26 January 2006 which he described as a memorandum from Senior Counsel then acting for the husband which had been “discovered”.

8. Senior Counsel for the husband objected to the document being referred to on the basis that he said he had no knowledge of it and that he wanted to determine whether or not it was privileged.

9. I read the document and formed the view that whilst it may have set out Senior Counsel’s position as he saw it in January 2006 for the husband, it was not so much a confidential document as one intended to be given to a judicial officer for the purposes of determining what directions or orders should be made for the furtherance of the hearing.  Although there was much within the document setting out the perception and possibly instructions of the husband, the document appeared more to be a summary for the assistance of the Court.

10. Senior Counsel for the husband said that even if that was right, it may have been a document similar to those used in our conciliation conferences under the Family Law Act1975 (Cth) (“the Act”) which would have made it privileged.

11. Senior Counsel for the wife told me that he did not intend to tender the document but rather to use it for the purposes of indicating the husband’s attitude at that particular time about whether or not the wife had “moved on” in respect of her emotional feelings towards the husband and the marriage relationship.  This became a step in the cross-examination in an effort to show some inconsistency in the husband’s position by a later statement.

12. Senior Counsel for the wife said that the document had come from the file of the wife’s solicitors in England and in so far as any question of privilege might arise therefore, it ought to have been considered to have been waived. In so far as it related to questions that might be something otherwise privileged as in a document prepared for an Australian conciliation conference under the Act, it was not to be tendered but rather used for cross-examination purposes. Those purposes were clearly to show the husband’s position as at that time and presumably would have only been taken further had the husband denied that that was in fact his position.

13. As it transpired, the husband adopted the suggestion that that was his position at that time.

14. These are proceedings under Division 12A of the Act and in April 2007 I ordered that the circumstances were sufficiently exceptional to warrant use of the provisions of s 69ZT(3) to allow the provisions of the Evidence Act1995 (Cth) to apply to the parties but not necessarily their other witnesses.

15. Under s 69ZN(7), the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.  That provision applies even in circumstances where the rules of evidence do apply to the parties.  In addition, under s 69ZX(1), in giving effect to the principle to which I have just referred, the Court has the discretion to ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

16. However, the provisions of the Evidence Act in relation to legal professional privilege have not been removed by s 69ZT of the Family Law Act.

17. Section 122(2) of the Evidence Act reads as follows:

    (2)      Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:

    (a)in the course of making a confidential communication or preparing a confidential document; or

    (b)as a result of duress or deception; or

    (c)under compulsion of law; or

    (d)if the client or party is a body established by, or a person holding office under, an Australian law--to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

18. Section 122(5) referred to in sub-section (2) says:

    (5)Subsections (2) and (4) do not apply to:

    (a)a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

    (b)a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

19. Senior Counsel for the wife made it clear that the document had come from a file belonging to the solicitors for the wife in the United Kingdom.  I have no reason to believe that it was in that file for anything other than a legitimate purpose.  In so far as it was in that file and under those circumstances, any privilege must have been seen to have been waived.

20. Returning then to the provisions of Division 12A of the Family Law Act, it would not have been appropriate to have stopped this hearing to enable inquiries to have been made about whether or not the document was otherwise of some confidential nature having regard to the purpose for which it was intended to be put.

21. In those circumstances, I ruled that it was quite proper for the cross-examination to proceed as it did.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the Ruling of the Honourable Justice Cronin

Associate: 

Date:  19 February 2008