Abano & Backus (No 2)
[2025] FedCFamC1A 88
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abano & Backus (No 2) [2025] FedCFamC1A 88
Appeal from: Backus & Abano (No 4) [2025] FedCFamC1F 30 Appeal number: NAA 72 of 2025 File number: PAC 6827 of 2020 Judgment of: ALDRIDGE, WILLIAMS & SCHONELL JJ Date of judgment: 15 May 2025 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal from orders of the primary judge discharging a stay of de facto threshold proceedings pending finalisation of the appellant’s criminal trial – Where the appellant is charged with serious historical sexual offences of the respondent’s twin daughters – Consideration of the right to silence – The applicable appellate standard of review – Waiver of the privilege against self-incrimination – Where the primary judge failed to identify the correct test to revisit an interlocutory order – Where the primary judge acted inconsistently with the maintenance of the privilege against self-incrimination and was plainly wrong to conclude the appellant would not be prejudiced if the civil trial preceded the criminal trial – Leave to appeal granted – Appeal allowed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 44, 114Q
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Adam P Brown Male Fashion Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kuang & Kuang [2025] FedCFamC1A 31
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
McLachlan v Browne (No 9) [2019] NSWSC 10
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Woodgate (Trustee) v Northop Hall Pty Ltd (2016) 341 ALR 132; [2016] FCA 370
Number of paragraphs: 96 Date of hearing: 28 April 2025 Place: Sydney Counsel for the Appellant: Mr Walker SC and Mr Alexander Solicitor for the Appellant: Campbell Paton & Taylor Counsel for the Respondent: Mr Williams SC and Mr Lloyd Solicitor for the Respondent: Matthews Dooley & Gibson ORDERS
NAA 72 of 2025
PAC 6827 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ABANO
Appellant
AND: MS BACKUS
Respondent
ORDER MADE BY:
ALDRIDGE, WILLIAMS & SCHONELL JJ
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Orders 1 to 18 made on 28 January 2025 are set aside and Orders 1, 3 and 4 made by Justice Henderson on 14 March 2022 are reinstated.
4.The respondent pay the appellant’s costs of the appeal fixed at $83,024.75, with payment to be deferred until the conclusion of the de facto proceedings in this Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Abano & Backus has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WILLIAMS & SCHONELL JJ:
By an Amended Notice of Appeal filed 14 April 2025, the appellant seeks leave to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) (“the primary judge”) on 28 January 2025 (“the appealed orders”).
At Part D of the Amended Notice of Appeal, the appellant appeals against all the orders made by the primary judge, although the appeal was prosecuted primarily in relation to Order 1 of the appealed orders.
Order 1 of the appealed orders discharged Orders 1 to 4 made by Henderson J on 14 March 2022 (“the stay orders”), which stayed the de facto threshold proceeding in this Court, pending finalisation of the appellant’s criminal trial in the District Court. Orders 2 to 18 of the appealed orders are procedural orders made as a consequence of the discharge of the stay order and include an order listing the trial to commence in April 2025.
The appellant contends the primary judge incorrectly concluded he would not suffer prejudice if the stay orders were discharged and acted inconsistently with maintenance of the privilege against self-incrimination. The appellant contends the appealed orders impugn his right to silence both before and outside his criminal trial, and his right against self-incrimination in his criminal trial, because the effect of the appealed orders is to require the appellant to conduct the civil proceedings in this Court prior to his criminal trial.
The respondent resisted the application for leave to appeal.
For the reasons which follow, leave to appeal will be granted and the appeal will be allowed.
BACKGROUND
Following the breakdown of their relationship, on 17 December 2020 the respondent commenced proceedings in the Federal Circuit Court of Australia (as it then was) for adjustment of the parties’ property interests, pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). The respondent contends she and the appellant were in a de facto relationship from late 2007 until November 2020.
On 2 February 2021, the appellant filed a Response to the respondent’s Initiating Application. The appellant initially denied a de facto relationship, but subsequently conceded, per Notation C to orders made on 13 May 2021, he and the respondent were in a de facto relationship between 2009 and 2012. Whilst the appellant also agrees the parties were in a relationship between 2013 and 2020, he disputes the characterisation of that relationship as a de facto relationship under s 4AA of the Act.
Consequently, the threshold issue to be determined in this Court is both the commencement and concluding dates of the parties’ de facto relationship. If the relationship concluded in 2012, as contended by the appellant, the respondent requires leave under s 44(6) of the Act. If it is found that the relationship concluded in November 2020, as contended by the respondent, her Initiating Application was filed within the prescribed statutory timeframe (s 44(5)(a)(i) of the Act) and leave is not required.
Prior to their relationship, both parties have previously been married and have children from their prior relationships. Relevantly, the respondent has three children; a son, and twin daughters who were born in 2001 and are now aged 24.
At a procedural hearing on 31 May 2021, the parties jointly requested the matter be listed for a threshold hearing. Nevertheless, orders were made to prepare the matter for trial, which was eventually listed for 26 April 2022.
In mid-2021, the appellant was charged with serious historical sexual assaults of the respondent’s twin daughters. Those charges were to be heard in the District Court of New South Wales (“the criminal proceedings”). Based on the Crown Case Statement, the extant charged matters are alleged to have occurred between early 2013 and 2017 and took place at either or both of the appellant’s property at Town G, and the respondent’s home at Suburb EE. At [12] of the primary judge’s reasons, he sets out with particularity a summary of the charges against the appellant.
At procedural hearings in September 2021, the parties’ legal representatives advised the Court the matter was ready to proceed to trial. On 20 and 21 September 2021, the appellant filed four affidavits, including his trial affidavit, and the respondent also filed documents in compliance with procedural orders.
Prior to the scheduled trial date, on 31 January 2022 the appellant filed an Application in a Proceeding seeking a stay of the threshold proceedings pending finalisation of the criminal proceedings. The application was opposed by the respondent.
On 14 March 2022, Henderson J made orders which stayed the respondent’s proceedings pending finalisation of the appellant’s criminal trial and vacated the hearing fixed for 26 April 2022. Neither party appealed the stay orders.
In mid-2023, the appellant was also charged with domestic violence offences involving the respondent, which were due to be heard in the Local Court of New South Wales in late 2024 (“the Local Court proceedings”). Both parties sought an adjournment of the hearing of those charges until after the conclusion of the criminal proceedings. At [11] of the reasons, the primary judge notably remarks that neither counsel suggested the threshold proceedings should be adjourned pending the outcome of the Local Court proceedings.
On 16 May 2023, the appellant filed an Application in a Proceeding seeking permission to rely upon, produce and/or tender in the criminal proceedings, affidavits filed by the respondent between 17 December 2020 and 18 February 2022. In other words, the appellant sought to be relieved from the principle established in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (see also Hearne v Street (2008) 235 CLR 125 and Kuang & Kuang [2025] FedCFamC1A 31).
The Application in a Proceeding was opposed by the respondent, who sought dismissal of the application, or alternatively, that she be permitted to provide to the New South Wales Office of the Director of Public Prosecutions four affidavits filed by the appellant between February 2021 and February 2022, and an Exhibit Book also filed by him on 19 September 2021 (“the Exhibit Book”).
On 17 May 2023, a senior judicial registrar made orders enabling the parties to rely upon, in the criminal proceedings, specific affidavits filed by and on behalf of the respondent (Orders 1–2), and, if requested by the prosecutor, two affidavits of the appellant sworn on 2 February 2021 and 19 September 2021 in addition to the Exhibit Book (Order 3). The appellant was also required to provide a copy of the orders to the prosecutor. The appellant did not seek to review the orders of the senior judicial registrar within the 21-day time frame prescribed by r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The following week, the appellant was arraigned and pleaded not guilty to each charge on the then indictment. The trial commenced but was subsequently abandoned because the trial judge was ill with Covid-19.
In mid-2024, the appellant’s criminal proceedings recommenced. A jury was empanelled and again the appellant entered pleas of not guilty to each charge on the then indictment. The second trial was also abandoned because one of the respondent’s daughters refused to continue to be cross-examined.
The criminal proceedings pertaining to the respondent’s other daughter are listed for trial to commence in late 2025 and are estimated to continue for 2 to 3 weeks.
On 26 November 2024 when the proceedings were before the primary judge, the respondent foreshadowed her intention to apply to discharge the stay orders. Procedural orders were made pertaining to that application.
On 29 November 2024, the respondent filed the application seeking discharge of the stay orders. The appellant opposed the application and, in his Response, also sought an extension of time to review Orders 3 and 4 of the orders made by the senior judicial registrar on 17 May 2023.
The application was heard by the primary judge on 18 December 2024, when orders were made dismissing the application for an extension of time to review. Ex tempore reasons were delivered pertaining to the extension of time application and judgment was otherwise reserved.
On 28 January 2025, the primary judge made the appealed orders and delivered reasons.
On 31 March 2025, the primary judge stayed the appealed orders by consent and listed the threshold issue for trial before him on 1 December 2025. Order 3 of those orders relevantly permits the parties to make further application to the primary judge upon disposition of the appeal.
The appeal was heard on 28 April 2025.
LEAVE TO APPEAL
In his Amended Notice of Appeal, the appellant correctly sought leave to appeal.
Section 28(3)(e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that leave is required to appeal a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1).
Regulation 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) defines a prescribed judgment as an interlocutory decree (other than a decree in relation to a child welfare matter).
Whether an order is final or interlocutory is determined by applying the following test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney (1976) 180 CLR 213 at 225). In applying that test, regard must be had to the “legal rather than practical effect of the judgment” (Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246 at 248).
The appealed orders are interlocutory because the orders do not finally dispose of the rights of the parties. Rather, the orders enable and set a timetable for the threshold issue to be heard and determined.
Leave to appeal is therefore required.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 (“Medlow”)).
In order to determine whether the decision is attended by sufficient doubt to warrant reconsideration, it is necessary to consider the merits of the appeal by reference to the grounds relied upon (Medlow). We will address the proposed grounds of appeal before returning to the question of leave to appeal.
ISSUES RAISED BY THE APPEAL
In addition to the matters raised by the grounds, the appeal also raises three broader issues. These are whether the primary judge properly applied the correct test to determine whether a reconsideration of an interlocutory order was warranted, whether the current order of the proposed hearings of the criminal and civil trials prevents determination of the appeal on its merits and, if not, the applicable appellate standard of review.
Prior to consideration of the merits of the grounds of appeal, we deal below with each of these issues.
We observe that whether the primary judge applied the correct test to determine if an interlocutory order should be revisited was not the subject of express complaint by either party in the appeal. However, an appeal must entail a genuine evaluation of the first instance decision and error, if it is identified, must be corrected (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]).
Absent parties reaching agreement about interlocutory disputes, the Court should retain control of interlocutory orders, including orders pertaining to management of disputed issues pending a final hearing, as is apposite in this matter (see Woodgate (Trustee) v Northop Hall Pty Ltd (2016) 341 ALR 132 at [31]–[32] per Rares J). Neither party disputed that the stay orders are interlocutory orders.
As to the test to be applied to determine whether an interlocutory order should be revisited, in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178, the High Court per Gibbs CJ, Aickin, Wilson, and Brennan JJ said:
…Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland [(1895) Q.L.J. 163, at p. 165]; Hutchinson v. Nominal Defendant [[1972] 1 N.S.W.L.R. 443, at p. 447]; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. [[1981] 1 W.L.R. 485, at p. 492; [1981] 1 All E.R. 745, at p. 751]. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd. [[1945] 1 All E.R. 103].
Contrary to the correct test articulated above, at [19] of the reasons the primary judge stated that the issue he was required to decide “is whether the proceedings ought to be listed for hearing ‘on the issue of the duration of the relationship and leave to commence out of time, if required, on the earliest possible date’”.
An examination of the transcript demonstrates at the hearing below, the primary judge raised with counsel for the respondent what were the additional matters which he should take into account, prior to suggesting the additional matter was the order of the senior judicial registrar made in May 2023 (Transcript 18 December 2024, p.55 lines 34–39).
Subsequent to that exchange, counsel for the appellant identified five matters which he understood the respondent’s counsel had identified as having occurred since the making of the stay orders. Those matters included the preparation of an affidavit by the appellant in September 2021 (prior to the making of the stay orders), the appellant’s application for release of the respondent’s affidavits, the orders made by the senior judicial registrar and the failure to review those orders, cross-examination of the respondent in voire dire in the criminal proceedings, and the fact that it was in December 2024, and not March 2022 when the stay orders were made.
Despite the above exchanges between the primary judge and counsel, at the hearing below there were no submissions made by either counsel about the factors relevant to revisiting an interlocutory order. Nowhere in the reasons did the primary judge find, nor indeed consider, if the purported new facts were material, nor did he consider if those facts would render enforcement of the stay orders unjust. The primary judge failed to identify the correct task before him at [19] and fell into legal error by erroneously embarking upon an inquiry to reverse the orthodox timetabling of the criminal and civil trials.
At the commencement of the appeal hearing, senior counsel for the appellant properly conceded that as things stood, because the criminal trial was currently listed prior to the threshold trial, the appellant could not contend a substantial injustice would result if leave to appeal were refused, and the appeal may well be moot. The present timetable of the criminal and civil trials presents no danger to the interests of justice, which would continue, unless the current timetabling were reversed. We observe this issue overlaps with the second limb of the test identified in Medlow.
As a result of that concession, with the agreement of senior counsel for the appellant, the Court proposed to adjourn the hearing of the appeal to a date in November 2025, which would enable prior disposition of the appellant’s criminal trial. Senior counsel for the respondent opposed the adjournment of the substantive appeal and the Court thereafter proceeded to hear the appeal.
Subsequent to the appellant filing a Notice of Appeal on 27 March 2025, on 31 March 2025 the primary judge heard and determined an application filed by the appellant which sought a stay of Order 1 of his orders made 28 January 2025. At the hearing of the appellant’s application, the primary judge made orders by consent granting the stay pending determination of the appellant’s appeal, vacating the threshold trial date of April 2025, and granting liberty to apply to relist the proceedings for such further directions as are appropriate (Order 3). Orders were also made listing the threshold hearing for a five-day trial in December 2025.
During the appeal hearing, the Court raised with counsel for both parties what would be the practical effect of Order 3 of the 31 March 2025 orders, supposing the appeal were dismissed. After initially describing Order 3 as an unremarkable procedural order, senior counsel for the respondent advised the Court, if the appeal were dismissed, the respondent would make an application to the primary judge to seek an earlier date for the threshold trial, notwithstanding the appellant’s criminal trial may not be completed.
If the respondent’s proposed course of conduct were successful, the appellant would then find himself facing a threshold trial prior to the conclusion of the criminal trial, which he submits, for the reasons discussed below, would result in substantial injustice to him. The risk that the appellant’s criminal trial would not be disposed of prior to the threshold trial is not a mere hypothetical one, but rather a real possibility which may well eventuate. That in turn would result in the appellant filing a further stay application. The substantive issues raised by the appeal before us should therefore be determined.
We now turn to consider whether the appeal arises from a discretionary judgment or an evaluative factual judgment. Appeals from the latter are determined on the correctness standard.
If the task of the primary judge when determining what the interests of justice require is an evaluative factual judgment, as postulated by the appellant, then the appeal is governed by the “correctness” standard as explained in Warren v Coombes (1979) 142 CLR 531 at 551–552. If it is an appeal from a discretionary judgment, as postulated by the respondent, the principles identifying appealable error as articulated in House v The King (1936) 55 CLR 499 at 504–505 apply.
Relevantly, in the context of appropriate appellate review and identification of the difference between a discretionary judicial decision and an evaluative factual judgment, the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 (“GLJ”) at [16] said:
The reasoning in House v R applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a “discretion” is “apt to create a legal category of indeterminate reference”, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”. The line separating discretionary decisions (in which appellate review is confined to the House v R standard) and other decisions (in which the “correctness standard” applies) was identified as that between questions lending “themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions” in which event “it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance”, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
(Footnotes omitted)
Senior counsel for the appellant submitted GLJ mandates this Court to conclude that the issue before the primary judge required an evaluative factual judgment.
Conversely, senior counsel for the respondent relied upon Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (“Zhao”) as authority for the proposition that the decision before the primary judge was discretionary. In Zhao, the issue was whether the accused should be granted a temporary stay of forfeiture proceedings pending a criminal trial.
Senior counsel for the respondent relied upon [35] of Zhao where it was observed the Court will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. To warrant a stay, it must be apparent that a person is at risk of prejudice in the conduct of his or her defence in the criminal trial. He submitted that observation indicated the decision was discretionary.
Further, because of the use of the word “discretion” at [41] in Zhao, the respondent contended this Court should accept the decision to grant a stay is discretionary.
Senior counsel for the respondent sought to distinguish the two authorities. The issue in GLJ was whether a permanent stay should be granted because of an abuse of process, and he agreed, there would logically be one legally correct answer to the question posed.
In Zhao, as in this matter, the issue was a temporary stay pending determination of criminal proceedings, which required a balancing of considerations to determine what is in the interests of justice and therefore involves exercise of discretion.
We accept that in order to reach a conclusion as to whether or not the interests of justice mandate a stay of the civil proceeding, the primary judge was required to weigh and balance competing factors. Those factors include the appellant’s right to silence and privilege against self-incrimination and the rights of the respondent to have the civil proceedings determined with due expedition.
Nonetheless, the appealed judgment was not a discretionary judgment, but rather an evaluative factual judgment, because the question for determination had one legally permissible answer, even if that answer involved a value judgment, which it clearly did. There could not possibly be differences of opinion, within a given range, which could be legitimate and reasonable answers to the question posed. Either it is in the interests of justice to stay the civil proceeding until the conclusion of the criminal proceeding, or it is not. The appellate standard of review is therefore the correctness standard.
Notwithstanding the legal error of the primary judge by failing to apply the correct test to revisit an interlocutory order, we now turn to the proposed grounds of appeal.
Ground 1(a): The primary judge erred in concluding that the appellant would not suffer prejudice if the stay were lifted
Under this ground, the appellant first complains that the primary judge’s conclusion at [44] and [46] of the reasons, namely that the appellant would not suffer prejudice if the civil trial preceded the criminal trial, is erroneous.
Senior counsel contended in the appeal that the primary judge ignored the real prejudice to an accused facing both a civil and criminal trial, if the civil trial were heard before the criminal trial which would subject an accused to inappropriate and unfair pressure in the conduct of two sets of proceedings.
Such a dilemma was identified by McCallum J (as her Honour then was) in McLachlan v Browne (No 9) [2019] NSWSC 10 (“McLachlan v Browne”) at [41]:
…He is on the horns of a dilemma. If the stay is not granted he will either have to conduct the defamation action with one hand tied behind his back, and likely lose, or waive his privilege against self-incrimination.
In this case, it was submitted the appellant would have to conduct the threshold proceeding with one hand tied behind his back and not adduce any evidence in chief, which would likely result in him being unsuccessful in the civil proceeding. He would be deprived of the opportunity to otherwise adduce relevant evidence in the civil proceeding.
Alternatively, the appellant could adduce evidence in chief and be cross-examined with the risk of prejudicing the conduct of the criminal proceeding.
If the appellant adopted the latter course of action, he would forfeit his right not to be questioned about those matters at the criminal trial.
If the appellant were asked, during cross-examination in the civil trial, questions relevant to the criminal trial, there is no impediment to the respondent providing a copy of the transcript of that evidence to the prosecutor, which could then both be tendered as an admission of evidence and inform the prosecutor’s preparation and conduct of the criminal proceeding, and thereby potentially lead to a derivative chain of enquiry.
The provision of the transcript to the prosecutor in the criminal proceeding would not constitute a communication “to the public”, contrary to s 114Q(1) of the Act.
We accept and agree with the appellant’s submissions both as to the manner in which he would be restricted in adducing evidence in the civil proceeding, if it were to occur prior to the conclusion of the criminal trial, and the ramifications of the appellant adducing evidence and subjecting himself to cross-examination in a civil trial. We conclude both pathways would cause considerable prejudice to him.
Secondly, the appellant contended the conclusion of the primary judge at [49] that the progression of the civil trial before the criminal trial would not disclose something the prosecutor does not already know, is wrong.
The appellant contended the topics relevant to the threshold proceeding include considerations referred to in s 4AA(2)(b) of the Act, the nature and extent of a common residence, s 4AA(2)(h), the extent to which the appellant may have had the support and care of the respondent’s children, and s 4AA(1)(c), whether the parties were a couple living together on a genuine domestic basis which might include consideration of the extent to which the appellant and the respondent spent time with the respondent’s immediate family including her children.
Arising from these relevant considerations, the appellant postulates that questions may be asked during cross-examination in the civil proceedings, which may inform the enquiry about the duration of the de facto relationship. These questions may include the frequency of the concurrent presence of the appellant and the remaining complainant at the Suburb EE property from 2013 to late 2015, the frequency of their concurrent presence at the Town G property from 2014 to 2017, whether the respondent was also present with the appellant or whether he was unsupervised with the remaining complainant, whether at times of concurrent presence the appellant was caring for the respondent’s children and if so how and to what extent, and whether at any time during 2013 to 2017 the appellant cared for or supported the respondent’s children, including the complainant, and whether such time was shared with the respondent or otherwise.
Answers to the above questions may also have obvious relevance to the criminal proceedings to establish opportunities for the appellant to have unsupervised concurrent time with the complainant, including specific dates which the appellant may be forced to concede during cross-examination and whether those dates and times align with the prosecutor’s case.
At [42] of the reasons, the primary judge rejected the contention that the appellant would be entitled to argue any adjustment in his favour because of his care of the children or that evidence about the children’s time with him will have a material impact on the length of the de facto relationship. At [43], the primary judge concluded it is difficult to apprehend that the appellant’s interaction with the children will be a major area of cross-examination in civil proceedings.
The difficulty with the reasoning of the primary judge is that it cannot possibly be established with any certainty what questions will or will not be asked of the appellant during cross-examination in the civil trial, although he may speculate about the likelihood of the focus of cross-examination.
We do not accept, as the primary judge did at [45] of the reasons, that a trial judge could necessarily prevent questions being asked of the appellant, as referred to at [44] of the reasons, which could impugn the appellant’s criminal proceedings. It may well be, as submitted by the appellant, that such questions could be relevant to the determination of the threshold proceedings and permissible, and the Court cannot simply rule that relevant questions cannot be asked during cross-examination. We also reject the conclusion at [49] that it was incumbent upon the appellant to identify in the hearing before the primary judge what would likely occur in the civil proceedings which would disclose to the prosecutors something not previously known.
We consider it is not possible to definitively conclude that there would not be questions during cross-examination in a civil trial which would prejudice the appellant. There remains a risk, even if remote, because of the overlap of the factual matrix of both proceedings, that cross-examination in the civil proceedings may adversely impact the appellant’s criminal trial and his privilege against self-incrimination.
As identified by her Honour McCallum J in McLachlan v Browne at [47], and we agree, the weight to be afforded to the privilege against self-incrimination is paramount and the privilege must be assessed in the context that the accused’s liberty is at stake.
The primary judge was plainly wrong to conclude that the appellant would not be prejudiced if the civil trial preceded the criminal trial, when he obviously would be, and could further be in the future.
There is merit in this ground.
Ground 1(b): The primary judge erred in concluding that the appellant had acted inconsistently with the maintenance of the privilege against self-incrimination
Under this ground, the appellant complains the primary judge’s conclusion at [50], [56] and [60], that the appellant has acted inconsistently with the privilege against self-incrimination, is wrong for multiple reasons. The inconsistencies found were the application to use the respondent’s affidavit in the trial and the cross-examination of one of the daughters.
First, the finding by the primary judge at [50] regarding the appellant’s counsel’s cross-examination of the respondent about her affidavits filed in this Court, which occurred in an aborted criminal trial, is wrong and cannot be considered either a waiver by the appellant or manifest conduct inconsistent with the maintenance of the privilege against self-incrimination. That is because an accused person is entitled to preserve the right to silence whilst asking questions of a complainant or witness in a prosecution case, both during a committal and a criminal trial. An accused is entitled to vigorously pursue his defence without being deemed to have waived the privilege against self-incrimination. In taking that matter into account, senior counsel for the appellant submitted the primary judge had regard to an irrelevant consideration, which is an error of principle.
Secondly, as to the orders of the senior judicial registrar made in May 2023, the primary judge failed to explain how an order of the Court can underpin a finding that the appellant has behaved in a manner inconsistent with maintenance of the privilege against self-incrimination.
Thirdly, the primary judge’s statements at [56] that the appellant’s failure to review the orders of the senior judicial registrar underpins a finding that the appellant did not genuinely and reasonably apprehend a danger from being compelled to give evidence is wrong. That is because the appellant’s subjective belief is an irrelevant consideration to the maintenance or waiver of the privilege and in any event, at that time the appellant had the benefit of the stay orders, so that the criminal trial would be concluded prior to the civil proceedings in this Court.
We agree with and accept the above submission of the appellant’s senior counsel and conclude that by those actions, the appellant could not possibly be considered to have waived the privilege against self-incrimination.
In reaching his conclusion as to the appellant’s inconsistent conduct, the primary judge also concluded at [52] that the appellant’s failure to apply to the Court to discharge procedural orders made in anticipation of trial, in particular between 16 August 2021 and 23 September 2021, when he filed a trial affidavit and his legal representatives advised the Court the matter was ready to proceed, did not persuade him that the appellant was then concerned about the prospect of giving evidence, as he now asserts to be so.
Senior counsel for the respondent submitted the appellant had waived his privilege against self-incrimination as early as 21 September 2021, when he filed his trial affidavit after he had been charged with the criminal offences pertaining to the respondent’s daughters.
He also contended as at September 2021, the appellant could have decided not to file an affidavit on the basis of his right against self-incrimination, but rather elected to file a 131-paragraph affidavit traversing his relationship with both the respondent and the complainants, and thereby waived his privilege against self-incrimination.
Even if the appellant’s filing of an affidavit in September 2021 can be considered as inconsistent with the maintenance of the privilege, and could be construed as a partial waiver about the matters deposed to therein, which we do not necessarily accept, that does not address the issue of what additional evidence might emerge from a civil trial in this Court which could prejudice the appellant’s criminal trial, and possibly lead to a derivative chain of enquiry.
There is merit in this ground.
CONCLUSION AND COSTS
As noted earlier, it is necessary to return to the issue of leave to appeal.
For the reasons above, we are satisfied that the appellant has established a reasonable prospect of success; the reasons of the primary judge are attended by sufficient doubt to warrant reconsideration by the Full Court and that substantial injustice would result if leave were refused. The application for leave to appeal and the appeal will be allowed.
Both senior counsel agreed if leave to appeal were granted, the respondent should pay the appellant’s costs, in accordance with his Schedule of Costs filed 22 April 2025, and if leave to appeal were refused, the appellant should pay the respondent’s costs, in accordance with her Schedule of Costs filed 22 April 2025.
We will therefore order that the respondent pay the appellant’s costs of the appeal fixed at $83,024.75, with payment to be deferred until the conclusion of the de facto proceedings in this Court.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Williams & Schonell. Associate:
Dated: 15 May 2025
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