FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARKE & PARKE | [2015] FCCA 1692 |
| Catchwords: FAMILY LAW – Property – whether financial agreement is a binding financial agreement – whether financial agreement should be set aside – fraud – inducement – burden of proof – evidentiary onus – unconscionable conduct – undue influence – uncertainty – repudiation and rescission. |
| Legislation: Crimes Act 1900 (NSW), Part 15A Evidence Act 1995 (Cth) Family Law Act 1975 (Cth), ss.90B, 90G, 90K, 90KA, Part VIII, Part VIIIA Federal Circuit Court of Australia Act 1999 (Cth), s.8 |
| Applicant: | MR PARKE |
| Respondent: | MS PARKE |
| File Number: | BRC 6354 of 2014 |
| Judgment of: | Judge Howard |
| Hearing dates: | 26 and 27 March 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Family Law Solutions |
| Counsel for the Respondent: | Ms Carew QC |
| Solicitors for the Respondent: | Keating Lehn Lawyers |
ORDERS
That each party shall provide a copy of a proposed Final Order to each other party and to the Court by no later than 4:00pm on Monday 22 June 2015.
Should the parties wish to make any submissions in relation to the matters referred in paragraph 109 of the reasons for judgment then they must do so in writing and such written submission shall be filed and served by no later than 4:00pm on Wednesday 24 June…
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- PARKE & PARKE [2015] FCCA 1692
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- [2015] FCCA 1692
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CaseChat Overview and Summary
The court was required to determine whether the signatures on the documents in question, specifically document number 13, were forgeries and, if so, whether the applicant, Mr Parke, was responsible for those forgeries. The court also considered the legal principles governing the burden of proof in civil proceedings, particularly in cases involving allegations of fraudulent misrepresentation and inducement.
Judge Howard accepted the expert opinion of Mr J, a forensic document examiner, who concluded that the signatures on document number 13 and other documents were false or simulated signatures not written by Ms Parke. Crucially, Mr J also opined that these questioned signatures were written by the same person who provided the specimen signatures of "Mr Parke" on other documents. The court found that Mr Parke's admission that his signature appeared above the name "Mr Parke" on document number 2, coupled with the unchallenged expert evidence, was sufficient to establish on the balance of probabilities that the forgeries were committed by the applicant. The court applied section 140 of the Evidence Act 1995 (Cth), which mandates that a case be proved on the balance of probabilities in civil proceedings, taking into account the nature of the cause of action, the subject matter, and the gravity of the matters alleged. The court also referenced established principles regarding the onus of proof in cases of fraudulent misrepresentation, noting that the plaintiff bears the ultimate onus of proving inducement.
The court ordered that each party provide a proposed Final Order to the other parties and the Court by 4:00 pm on Monday, 22 June 2015. Further written submissions regarding matters referred to in paragraph 109 of the reasons for judgment were to be filed and served by 4:00 pm on Wednesday, 24 June 2015. The parties were also directed to organise and attend a mediation within three months of the order, with mediator's fees to be paid jointly.
Orders
Orders of the court
1.
That each party shall provide a copy of a proposed Final Order to each other party and to the Court by no later than 4:00pm on Monday 22 June 2015.
2.
Should the parties wish to make any submissions in relation to the matters referred in paragraph 109 of the reasons for judgment then they must do so in writing and such written submission shall be filed and served by no later than 4:00pm on Wednesday 24 June 2015.
3.
The parties shall organise and attend (personally and with their legal representatives) at a mediation to be conducted within three (3) months of the date of this Order. The mediator’s fees shall be paid jointly by the parties.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In relation to the said “Trustees Declaration” at page 93 of Mr J’s report I note the question and answer from page 68 of the transcript of 26 March 2015 line 46:-“Ms Carew QC: Do you see a signature above the name, Mr Parke?Mr Parke: Yes, that’s my signature.” Mr J provided his opinion that the respondent’s signatures on various documents were forgeries. In particular I note the document which is numbered 13 (which appears on page 113 of Mr J’s second report). That document is a letter dated 1 July 2009 addressed to the Parke Super Fund. It is a letter which purports to be from the respondent, Ms Parke. The letter purports to be signed by Ms Parke. The letter states, inter alia:-“I hereby request that my existing Transition to Retirement Income Streams(s) being paid from Parke Super Fund be stopped, the proceeds combined with the balance in my accumulation account (if any) and then my benefit entitlement converted to a new pension entitlement, as detailed below.……” In the opinion of Mr J the signature contained on document number 13 (which purports to be the signature of Ms Parke) is a “false signature”. I note paragraph 20 of Mr J’s second report. I also note paragraph 1 on page 76 of his second report where Mr J states:-“With respect to A1. The questioned signatures “Mr Parke” [original and copy] contained on documents 01 to 19 are false [simulated] signatures not written by the specimen provider – Ms Parke.” Hence, Mr J’s conclusion is that the purported signature of the respondent on document number 13 is a false signature. Further, I note paragraph 6 of the opinion of Mr J contained on page 76 of his second report where he notes:-“With respect to B6. The questioned signatures “Mr Parke” contained on the group 4 documents (13 to 19) were written by the writer of the “specimen” signatures “Mr Parke” contained on documents 02 and 13 to 19.” On the same point, Mr J states his opinion in paragraph 22:-“There is an abundance of evidence present to conclude that the questioned signatures identified as “group 4” are written by the author of the uncontested “specimen” signatures “Mr Parke” as described.” I note the admission by Mr Parke (the applicant) that his signature appears above the name, “Mr Parke” on document number 2. It was submitted on behalf of the applicant that the admission by the applicant that the signature on the document numbered 2 was his signature – is insufficient evidence for this court to conclude that the forgery was committed by the applicant. I disagree. For that submission to have any weight that question should have been put to Mr J. It was not. Mr J was not required for cross examination. Mr J’s opinion has not been challenged. I accept the evidence of Mr J and I accept his opinions. In coming to this conclusion I am mindful of s140 of the Evidence Act 1995 (Cth). That section states: – “140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.”