Shaw and Brennan and Anor

[2009] FamCA 621

FAMILY COURT OF AUSTRALIA

SHAW & BRENNAN AND ANOR [2009] FamCA 621

FAMILY LAW – EVIDENCE – Objection to admission

APPLICANT: Mr Shaw

1^ST RESPONDENT: Ms Brennan

2^ND RESPONDENT Mr Brennan

APPLICANT/INDEPENDENT CHILDREN’S LAWYER: Adamson Solicitors

FILE NUMBER: SYF 3250 of 2006

DATE DELIVERED: 23 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 23 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

1^ST RESPONDENT: Excused from attendance

COUNSEL FOR THE APPLICANT / INDEPENDENT CHLDREN’S LAWYER:
Mr Braine

COUNSEL FOR THE 2^ND RESPONDENT: Mr Lloyd

Orders

1. That the bundle of documents be admitted and marked Exhibit 1.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3250 of 2006

MR SHAW

Applicant

And

MS BRENNAN

1^st Respondent

And

MR BRENNAN

2^nd Respondent

And

ADAMSON SOLICITORS

Applicant/Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I am tendered a bundle of documents comprising email transmissions really between the parties to some extent and between the solicitor for the wife and the wife.  Objection is taken to all but two of those documents by the counsel for the solicitor. 

2. The basis for the objection is firstly that they should be rejected under s 135(a) of the Evidence Act because of a lack of probative value and they are outweighed by prejudice and there is no explanation as to content whether it was a draft or the context in which it was written.

3. I reject that submission.  These documents, unlike the documents which were in issue in the case to which my attention was drawn are in clear and unequivocal terms;  they do not comprise some form of professional shorthand;  they are easily readable;  they speak clearly of the matters to which they refer;  they are relevant to the issues in these proceedings although some of them I believe to be very marginally relevant.  I do not believe that the prejudice that will accrue to the husband, if any, by their tender will be other than outweighed by their probative value. 

4. I do not find the evidence confusing.  The descriptions of the author is Matthew B and I not being able to know that that's the solicitor is in my respectful submission untenable and ought not to have been put.  The reality is that the emails when read clearly emanate from the solicitor, the subject matter relates to the matter and the references to familiar relationships also, I think, supports that view.  There is no doubt in my mind that on the balance of probabilities they were written by the solicitor. 

5. As to the authenticity of the documents I have no difficulty in accepting that they were a part of the solicitor's record, that they were produced in the conduct of the litigation by the solicitor for the mother and were part of his records and that it appears from the documents that the transmissions were in fact transmitted.

6. In my view the documents do come within the scope of the waiver of privilege which I have already found and accordingly I will admit this bundle of documents and mark them Exhibit 1. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date:  23 April 2009