YARDBOROUGH & CHESTERMAN - [2014] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARDBOROUGH & CHESTERMAN

[2014] FCCA 446

Catchwords:
FAMILY LAW – Admission into evidence of emails on another person’s computer – whether obtained improperly or illegally or in contravention of an Australian law – whether desirability of admission outweighs undesirability.

Legislation:

Crimes Act 1958 (Vic), s.247G
Evidence Act 1995, ss.55, 56, 135, 138

Family Law Act 1975

Iphostrou & Iphostrou & Ors (No.4) [2010] (unreported) FamCA 1183

Applicant:

MR YARDBOROUGH

Respondent:

MS CHESTERMAN

File Number:

MLC 10176 of 2012

Judgment of:

Judge F. Turner

Hearing date:

13 February 2014

Date of Last Submission:

13 February 2014

Delivered at:

Melbourne

Delivered on:

24 March 2014

REPRESENTATION

Counsel for the Applicant:

Ms Nikou, Senior Counsel

Solicitors for the Applicant:

Gpz Legal Pty

Counsel for the Respondent:

Mr Stoikovska

Solicitors for the Respondent:

Leanne Cain & Associates

ORDERS

The wife’s objections to the admission into evidence of emails are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10176 of 2012

MR YARDBOROUGH

Applicant

And

MS CHESTERMAN

Respondent

REASONS FOR JUDGMENT

This decision concerns property law proceedings under the Family Law Act 1975. The husband challenges the wife’s credibility and seeks to tender copies of emails allegedly sent between the wife and her friend Mr J.
The Court refers to ss.55 and 56 of the Evidence Act 1995 (the “Act”) which are as follows:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not take to be irrelevant only because it relates only to:
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
A relevant fact very much in issue in this case is the wife’s contributions to the renovations of the former matrimonial home.
Ms Nikou, Senior Counsel appeared for the husband and Ms Stoikovska of Counsel appeared for the wife.
The evidence from the husband is that he copied the emails from his wife’s email accounts. He states that the wife gave him her password to access her accounts so as to assist her to respond to various documents. The husband states that he and the wife had a mutual understanding that they both had free access to each other’s computers and email accounts. He says that the wife never told him that his access was restricted in any way.
The Court finds that the husband did not access the wife’s emails illegally or improperly (post). The Court accepts the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: YARDBOROUGH & CHESTERMAN [2014] FCCA 446
Case: [2014] FCCA 446
Decision Date: 24 March 2014

CaseChat Overview and Summary

In the Family Court of Australia, Judge F. Turner considered objections raised by the wife concerning the admission of certain emails into evidence. The husband sought to tender copies of emails obtained from his wife's email accounts, which he claimed to have accessed using a password provided by her. The central dispute revolved around the admissibility of these emails, with the wife arguing they were improperly or illegally obtained and irrelevant to the proceedings.

The primary legal issues before the Court were whether the emails were obtained in contravention of an Australian law, and if so, whether the desirability of admitting the evidence outweighed its undesirability. The Court was also required to determine if the emails were relevant to a fact in issue in the proceedings, specifically the wife's contributions to the renovation of the former matrimonial home, and whether their admission would assist in assessing her credibility.

Judge Turner reasoned that the husband's access to the emails was not illegal or improper, accepting his evidence that the wife had provided him with her password and that there was a mutual understanding of unrestricted access to each other's email accounts. The Court found that the emails were relevant as they could rationally affect the assessment of the wife's credibility, which was a significant issue in determining her financial contributions to the property. The Court rejected the wife's objections, finding that the emails were likely to assist in determining the veracity of her evidence regarding her contributions.

Consequently, the wife's objections to the admission of the emails into evidence were dismissed.

Orders

Orders of the court

The wife’s objections to the admission into evidence of emails are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Court refers to ss.55 and 56 of the Evidence Act 1995 (the “Act”) which are as follows:55 Relevant evidence(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2)In particular, evidence is not take to be irrelevant only because it relates only to:(a)the credibility of a witness; or(b)the admissibility of other evidence; or(c)a failure to adduce evidence.56 Relevant evidence to be admissible(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.(2)Evidence that is not relevant in the proceeding is not admissible. A relevant fact very much in issue in this case is the wife’s contributions to the renovations of the former matrimonial home. Ms Nikou, Senior Counsel appeared for the husband and Ms Stoikovska of Counsel appeared for the wife. The evidence from the husband is that he copied the emails from his wife’s email accounts. He states that the wife gave him her password to access her accounts so as to assist her to respond to various documents. The husband states that he and the wife had a mutual understanding that they both had free access to each other’s computers and email accounts. He says that the wife never told him that his access was restricted in any way. The Court finds that the husband did not access the wife’s emails illegally or improperly (post). The Court accepts the husband’s evidence:·That the wife gave him her password; ·That it was their practice and understanding that they had full access to each other’s emails; and·That the wife never told him that his access was restricted. The husband seeks to tender copies of the emails to show that the wife has given untruthful evidence about them and thereby to damage her credibility. The wife’s credibility is a major issue in the case, as a finding on it will assist the Court in determining the extent of the wife’s contribution to the former matrimonial home. Ms Stoikovska raises a number objections to the emails being tendered. The first objection is that as the Court has found that the parties separated on 1 July 2013, if the emails are evidence of an affair, it post-dates separation and is therefore not an ‘affair’. That is not the reason that tender is sought. The Court finds that the reason for seeking to tender the emails is to attack the wife’s credibility. The question is ‘whether the emails were drawn and sent by the wife?’ or ‘whether they were altered and/or sent by someone else?’ This objection is rejected. The second objection is that the emails will not assist in determining a fact in issue. The Court finds that the emails are likely to assist it in determining whether to accept the wife’s evidence as to her input into the cost and renovations of the former matrimonial home. That is very much a fact in issue.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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