Aitken & Murphy

In the matter of *Aitken & Murphy*, Young J considered an application by the applicant for a certificate under section 128 of the *Evidence Act 1995* (Cth) in relation to evidence provided in section 90SM proceedings. The respondent had also sought to strike out the applicant's Initiating Application for want of prosecution due to alleged failures in complying with discovery procedures.

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.