Under Section 131 of the Evidence Act, communications between parties made in the course of negotiating a dispute are privileged. This means that such communications are not admissible as evidence in any family law proceedings that may arise. However, the act provides a number of exceptions to this rule where not admitting such a communication would result in injustice. In the 2019 decision of Phe v Leng, the Family Court considered the admissibility of a text message from the wife to the husband’s sister about the return of an amount of money owed to his family.
The facts of Phe v Leng
In Phe v Leng, the husband gave evidence that he owed his father $145,000. The wife asserted that the money belonged to the husband and that no loan existed. The husband’s father gave evidence that he had loaned the husband the money, to be repaid after the sale of a property and that the money was paid to him in a number of installments.
The wife acknowledged that when the couple separated, the husband had said the money belonged to his father but stated she believed this was said only to stop her from accessing the funds. There were bank statements before the court evidencing the loan as well as an email from the wife to the husband’s sister acknowledging the family’s financial contribution to the purchase of a property.
The court also had regard to a text message sent by the wife to the husband’s sister which read, in part ‘[P]lease tell father and mother as long as M can come back to Sydney, I’m willing to give up everything in Taiwan and return the $3 million they have put into the Suburb F property to show my sincerity.’
The message had been part of an attempt to negotiate for the return of the couple’s eldest child to Australia.
The decision at first instance
The Family Court found in Phe v Leng that on the balance of probabilities the money was owed to the husband’s father. The wife appealed against the decision, arguing that her text message was inadmissible as it was a communication made during an attempt to negotiate the settlement of a dispute pursuant to Section 131 of the Evidence Act.
Section 131 Evidence Act
Under Section 131(2)(g) of the Commonwealth Evidence Act, evidence is not to be adduced of:
- communications between parties to a dispute in relation to attempts to negotiate a settlement to the dispute;
- documents prepared in connection with an attempt to settle the dispute.
However, the provision sets out a number of exceptions to this rule including:
- Where the parties have consented to the evidence being adduced;
- Where the information has already been disclosed by consent;
- Where the communication included a statement that it was not to be treated as confidential;
- Where the communication affects a person’s rights;
- Where evidence has been adduced in the proceeding that is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence.
The section is not discretionary and confers an absolute privilege over relevant communications unless one of the exceptions applies.
On appeal, the wife in Phe v Leng argued that the text message should not have been allowed into evidence as it was a privileged communication. The court rejected this argument. The court had heard evidence from the wife that the money belonged to the husband. In this context, the wife’s text message fell into the exception under Section 131(2)(g), where evidence of a communication is needed to contradict evidence that would otherwise be likely to mislead the court.
The court found that the message was needed for the judge to make the finding that he did and that in its absence the court would have been likely to have been misled. Accordingly, the wife was not entitled to claim privilege in relation to the text message and her appeal was dismissed.
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