Federal Circuit and Family Court of Australia
(DIVISION 1)

Fitzroy & Oliversen [2021] FedCFamC1F 4   
File number(s):	CAC833/2018	
		
Judgment of:	GILL J	
		
Date of judgment:	2 September 2021	
		
Catchwords:	FAMILY LAW – EVIDENCE – Admissibility – Consideration of the application of Evidence Act 1995 (Cth) s 161 to email correspondence between the parties – Consideration of interaction between Evidence Act 1995 (Cth) ss 55, 58 and 183 – Emails admitted into evidence  	
		
Legislation:	Evidence Act 1995 (Cth) ss 55, 58, 161 and 183 	
		
Cases cited:	Australian Competition and Consumer Commission v Air New Zealand Proprietary Limited (No 1) (2012) 207 FCR 448
Australian Securities and Investment Commission v Rich (2005) 216 ALR 320
Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26
Maaz v Fullerton Property Proprietary Limited [2021] NSWCA 79
National Australia Bank Limited v Rusu (1999) 47 NSWLR 309
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146
Odgers, Stephen, Uniform Evidence Law (Lawbook Co, 14th edition, 2019) 	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	19	
		
Date of hearing:	25 August 2021 	
		
Place:	Canberra	
		
Counsel for the Applicant:	Ms Davis	
		
Solicitor for the Applicant:	Goldbrook Family Law	
		
Solicitor for the Respondent:	Self-representing	

ORDERS
	CAC833/2018	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) 	
BETWEEN:	MR FITZROY
Applicant
	
AND:	MS OLIVERSEN
Respondent

order made by:	GILL J	
DATE OF ORDER:	2 September 2021	

THE COURT ORDERS THAT:

1.	The documents contained at the applicant father’s Tender Bundle Part 2 be admitted into evidence in the proceedings as Exhibit F3.

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fitzroy & Oliversen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
GILL J:
1	A matter arose in the interim hearing of this application concerning the admissibility of a sequence of purported emails between the parties.  The father sought to tender the emails to answer a contention raised by the mother in her affidavit material.  The mother resisted the tender of the emails on the basis that the provenance or authenticity of the emails had not been established.  The tender was unsupported in the absence of a concession on this point, or other evidence to establish the authenticity or provenance of the email such as an affidavit identifying what they were or where they have been produced from, or the production of those emails from some source capable of establishing their provenance such as a subpoena or produced pursuant to s 69ZW of the Family Law Act 1975 (Cth).
2	Despite there being an absence of external evidence to establish the provenance of the documents and hence their relevance and admissibility, counsel sought to rely upon s 161 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which is in the following terms: 
161   Electronic communications
(1)	If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication—
(a)	was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made, and
(b)	was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made, and
(c)	was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made, and
(d)	was received at the destination to which it appears from the document to have been sent, and
(e)	if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.

(2)         A provision of subsection (1) does not apply if—
(a)	the proceeding relates to a contract, and
(b)	all the parties to the proceeding are parties to the contract, and
(c)	the provision is inconsistent with a term of the contract.
Note—
Section 182 of the Commonwealth Act gives section 161 of the Commonwealth Act a wider application in relation to Commonwealth records. 
3	Section 161 falls within Part 4.3 of the Evidence Act, being a suite of provisions designed to facilitate the proof of matters, in this case by means of a rebuttable presumption.
4	The question that arises is whether absent other authenticating evidence, the content of the purported emails themselves may be used to establish their relevance by means of inferences drawn from the documents themselves as opposed to some external source identifying what the documents might be.
5	The tender of any evidence is subject to Part 3.1 which permits, subject to any exclusionary rule, the admission of evidence that is relevant.  Section 55 describes relevant evidence in the following terms: 
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 taken 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.
6	In concluding whether or not material produced to the Court is relevant, s 58 of the Evidence Act provides: 
58	Inferences as to relevance
(1)	If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2)	Subsection (1) does not limit the matters from which inferences may properly be drawn.
7	Section 58 is further supported by s 183 which deals with inferences more generally and is in the following terms: 
183	Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may—
(a)	examine the document or thing, and
(b)	draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
Note—
Section 182 of the Commonwealth Act gives section 183 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
8	The Full Court of the Federal Court in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 (“Ocean Marine”) at [19]ff considered the operation of s 183, confirming (at [20]) that it “enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken”.  It has been observed elsewhere by Stephen Odgers that the mere objection to material sought to be adduced pursuant to s 183 does not prevent the Court from examining and drawing inferences from the material (Stephen Odgers, Uniform Evidence Law (Lawbook Co, 14th edition, 2019) at EA.183.80).  Rather, the point made by the Full Court in Ocean Marine was that the mere capacity to draw inferences from an examination of a document or thing does not avoid other requirements for admissibility.  In that case the requirement for admissibility that was being considered was whether or not what was contained in the document being examined was an opinion admissible under the Evidence Act.  The point made by the Full Court was that while inferences were available to be drawn from the document in order to further allow the admission of an opinion contained within the document, the inferences to be drawn had to be sufficient to satisfy the opinion rule.  Failure to do so did not otherwise allow the adduction of opinion evidence pursuant to s 183 in avoidance of the opinion rule.
9	In this case, the contentious documents are purportedly electronic communications as dealt with at s 161 of the Evidence Act 1995.  Accordingly, when drawing inferences pursuant to s 183 or pursuant to s 58, the presumptions contained at s 161 are operative.
10	The section means that (unless evidence sufficient to raise doubt about the presumption is adduced) a presumption arises identifying the mother and father as the authors of that email communication, the date of the various communications as being the date contained in the documents, and that the communication was sent as an email.  In this way s 161 operates in conjunction with s 183 in potentially enabling the document to establish its own provenance or authenticity.
11	However, previous authority such as National Australia Bank Limited v Rusu (1999) 47 NSWLR 309 per Bryson J (“Rusu”) and Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 per Austin J (“Rich”) doubted the capacity of s 58 to allow for self-authentication of documents.
12	In Australian Competition and Consumer Commission v Air New Zealand Proprietary Limited (No 1) (2012) 207 FCR 448, Perram J took a distinctly different view.  His Honour’s examination of the question of authenticity and relevance and the application of s 58 of the Evidence Act 1995 begins at [92] of that judgment.  Distinguishing between the work of the court in determining admissibility as opposed to the work of the court in weighing and evaluating the evidence, his Honour observed (at [92]) as follows: 
The tribunal of law does not find that the document is authentic.  It finds that there is, or there is not, a reasonable inference to that effect and hence that the document is, or is not, relevant.  If there is a reasonable inference that the receipt of the document will rationally affect the probability of a finding of fact, then the matter may to go to the tribunal of fact which will then determine at the end of the trial whether the document is authentic and whether the fact is proved.
13	In declining to follow Rusu, Perram J observed (at [101]) the work of the Australian Law Reform Commission in recommending the liberalisation of the restrictions of the common law in relation to the self-authentication of documents.  He concluded (at [102]) that the approach taken in Rusu thwarted the objectives and operation of s 58.  His Honour observed that by virtue of s 58 it is open to a court, in considering admissibility, to draw inferences from the document itself for the purpose of establishing whether an inference of authenticity is available sufficient to render the document admissible.
14	In further support of his Honour's view it should be observed that s 55 considers relevance to be determined on the basis “if it were accepted”.  Accordingly, where inferences may be drawn from the document as supported by ss 58 and 183 such will be sufficient to found the admission of the material “if it were accepted”. 
15	Further, it may be observed that the Court of Appeal of the Supreme Court of New South Wales in Maaz v Fullerton Property Proprietary Limited [2021] NSWCA 79 (7 May 2021) has declined to follow Rusu, rather allowing inferences to be drawn on the face of documents themselves, noting (at [22]) that the operation of s 183 was not brought to Bryson J’s attention in Rusu.  The Court of Appeal instead followed the reasoning of Leeming JA in Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 where his Honour at [99]ff also declined to follow the judgment in Rusu, noting the decision of Perram J in Australian Competition and Consumer Commission v Air New Zealand (No 1) and observing the operation of s 183 of the Evidence Act as permitting inferences to be drawn as to the authenticity of the document.
16	Accordingly, despite some initial hesitance in authority, it may now be taken that the authenticity of or provenance of the emails is a matter in relation to which inferences can be drawn from the documents themselves.  In this case those inferences are bolstered by the presumptions contained at s 161.  
17	The relevant inferences to be drawn which support admission of the documents are that the documents appear to be an email string between the parents as to the care arrangements for the children in the context of a contention made by the mother that the father had failed to take up offered time.  The email string sets out the father's representations explaining the position taken.
18	Whereas it could be complained that the representations in the documents are hearsay, it should be noted that by operation of Division 12A of Part 7 the hearsay rule does not apply to these documents.
19	Accordingly, the documents contained at the applicant father’s Tender Bundle Part 2 will become Exhibit F3 in the proceedings.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.	

Associate: 

Dated:	2 September 2021