FAMILY COURT OF AUSTRALIA
| AITKEN & MURPHY | [2011] FamCA 785 |
| FAMILY LAW - EVIDENCE – Where the applicant sought a certificate under s 128 of the Evidence Act 1995 (Cth) in respect of particular evidence in s 90SM proceedings – Whether s 128(1) and (2) were satisfied – Whether the applicant should be given a certificate under s 128 in respect of particular evidence sought to be provided in affidavits, financial statements and in oral evidence in the proceedings FAMILY LAW - DISCOVERY – Where the respondent argued that the applicant’s Initiating Application should be struck out for want of prosecution given a failure to comply with discovery procedures generally and pursuant to consent orders – Whether the applicant’s Initiating Application should be dismissed for want of prosecution FAMILY LAW - CERTIFICATE – Form of certificate given to the applicant attached |
| Crimes Act 1914 (Cth), s 6 Criminal Code 1995 (Cth), ss 11.1, 11.4, 11.5, 136, 137 Family Law Act 1975 (Cth), ss 4, 4AA, 79, 90SM Family Law Rules 2004 (Cth), rr 1.12, 2.02, 11.06, 12.02, 13.01, 13.04, 13.05, 13.07, 13.13, 13.22, 15.09 Evidence Act 1995 (Cth), s 128 Evidence Amendment Act 2008 (Cth), s 63 Income Tax Assessment Act 1997 (Cth), s 995-1 Taxation Administration Act 1953(Cth), ss 8A, 8C, 8D, 8K, 8L, 8N, 8Q, 8T, 8U |
| Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, discussed Atkinson & Atkinson (1997) FLC 92-728, discussed Briginshaw v Briginshaw (1938) 60 CLR 336, cited Ferrall & Blyton (2000) FLC 93-054, applied J v D & Ors (2006) FLC 93-280, discussed Sheikholeslami v Tolcher [2009] NSWSC 920, discussed Triplex Safety Glass Co Ltd v Lancegaye [1939] 2 KB 395, cited |
| APPLICANT: | Mr Aitken |
| RESPONDENT: | Mr Murphy |
| FILE NUMBER: | MLC | 11907 | of | 2010 |
| DATE DELIVERED: | 12 October 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 15 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bartfeld QC |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | T.J. Mulvany & Co |
ORDERS
IT IS ORDERED:
That in support of his Initiating Application filed 22 December 2010 the applicant file and serve an amended Financial Statement and affidavit fully detailing his financial circumstances, in accordance with rules 13.04 and 13.05 of the Family Law Rules 2004 (Cth), on or before 4.00pm Monday 7 November 2011.
That pursuant to s 128…
Continue reading Aitken & Murphy
Sign in free to access the full text
- AGLC
- Aitken & Murphy [2011] FamCA 785
- Case
- [2011] FamCA 785
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the conditions for issuing a certificate under section 128(1) and (2) of the *Evidence Act 1995* (Cth) were met, and consequently, whether such a certificate should be granted in respect of evidence provided by the applicant in affidavits, financial statements, and oral testimony. Additionally, the court had to consider whether the applicant's Initiating Application should be dismissed for want of prosecution.
Young J reasoned that a certificate under section 128 of the *Evidence Act 1995* (Cth) should be given to the applicant. This certificate would apply to evidence willingly given by the applicant in the section 90SM proceedings, specifically where that evidence might tend to prove an offence under Division 2 of the *Taxation Administration Act 1953* (Cth), section 6 of the *Crimes Act 1914* (Cth), or sections 11.1, 11.4, or 11.5 of the *Criminal Code 1995* (Cth). The certificate was to be in relation to evidence contained within the applicant's amended financial statement and affidavit detailing his financial circumstances, and any further amended financial statements or affidavits. The court also ordered that the applicant file and serve an amended financial statement and affidavit fully detailing his financial circumstances in accordance with the *Family Law Rules 2004* (Cth) by a specified date.
The court ordered that a sealed copy of the section 128 certificate be placed on the court file and attached to any relevant amended financial statements or affidavits. The respondent's Application in a Case was otherwise dismissed, as was the applicant's Response to an Application in a Case. Costs were reserved pending further submissions, and parties were directed to file written submissions on costs. All extant applications were listed for case management and directions. The court also certified that the matter reasonably required the attendance of Senior Counsel for the applicant and Counsel for the respondent.
Orders
Orders of the court
IT IS ORDERED:
1.
That in support of his Initiating Application filed 22 December 2010 the applicant file and serve an amended Financial Statement and affidavit fully detailing his financial circumstances, in accordance with rules 13.04 and 13.05 of the Family Law Rules 2004 (Cth), on or before 4.00pm Monday 7 November 2011.
2.
That pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the applicant in relation to the particular evidence given willingly by him in these s 90SM proceedings insofar as that evidence may tend to prove that the applicant has committed an offence under Division 2 of the Taxation Administration Act 1953 (Cth), s 6 of the Crimes Act 1914 (Cth) and ss 11.1, 11.4 or 11.5 of the Criminal Code 1995 (Cth) and only as contained in:
(a) the amended Financial Statement and affidavit fully detailing the applicant’s financial circumstances referred to in paragraph 1 of these orders; and
(b) any further amended Financial Statement and affidavit of the applicant in these s 90SM proceedings.
3.
That a sealed copy of the certificate pursuant to s 128 of the Evidence Act 1995 (Cth) remain on the court file.
4.
That any amended Financial Statement or affidavit filed and served by the applicant in these s 90SM proceedings containing evidence the subject of the s 128 certificate have attached a sealed copy of the certificate.
5.
That the respondent’s Application in a Case filed 26 May 2011 be otherwise dismissed.
6.
That the applicant’s Response to an Application in a Case filed 24 June 2011 be otherwise dismissed.
7.
That the parties costs of and incidental to the hearing of this application be reserved pending further submissions.
8.
That the parties file and serve written submissions as to the basis and quantum of costs not to exceed five pages in length within seven (7) days.
9.
That all extant applications be otherwise listed for case management and directions before Registrar Sikiotis on a date to be fixed.
IT IS CERTIFIED
10.
That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Senior Counsel for the applicant and Counsel for the respondent.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.