AKHTARI & ALGHAZARI

[2017] FamCA 820

FAMILY COURT OF AUSTRALIA

AKHTARI & ALGHAZARI [2017] FamCA 820

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where the wife is seeking a certificate under s 128 of the Evidence Act 1995 (Cth) for evidence in chief – Where authorities state that a certificate can be issued for evidence in chief – Certificate is issued.

FAMILY LAW – INJUNCTION – Where it is ex parte – Where the wife seeks an injunction pursuant to s 114 of the Family Law Act 1975 (Cth) – Where there is reference in the documents to threats or threatening behaviour from the husband and risks associated with people associated with him – Where the balance of prejudice favours granting of the application.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 79, 114, 114AA

Cornwell v The Queen (2007) 231 CLR 260 Ferrall & Blyton (2000) FLC 93-054 Song & Ying (2010) 273 ALR 213
APPLICANT:	Ms Akhtari

RESPONDENT: Mr Alghazari

FILE NUMBER: SYC 5412 of 2017

DATE DELIVERED: 31 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. A Certificate pursuant to s 128 of the Evidence Act (Cth) 1995 is issued in relation to the affidavit of the wife affirmed and filed 31 August 2017 as to paragraphs 78, 103-105 inclusive, 115-118 inclusive, 133 and 135-170 inclusive.

2. The proceedings are adjourned to the judicial duty list at 9.30 am on 18 September 2017 for hearing, if practicable and if sought by the parties, the wife’s application for interim orders contained in her Initiating Application filed 21 August 2017 including the continuation, if sought, of the orders made on an ex parte basis today.

3. The husband be personally served with a copy of the wife’s Initiating Application, her Financial Statement, her affidavit filed today and a copy of these orders by 6.00 pm on 1 September 2017. 

4. Until further order, an order is made in terms of the orders sought at paragraph 5 of the interim orders sought in the wife’s application, as set out hereunder:

   5. Pursuant to section 114 of the Act, the respondent, his servants and/or his agents be restrained from:

   5.1Assaulting, molesting, harassing, threatening or otherwise interfering with the applicant.

   5.2Engaging in conduct that in any way intimidates the applicant.

   5.3Stalking the applicant.

   5.4Coming within 500 metres of any property in which the applicant is living or working.

   5.5Coming within 500 metres of the Suburb C Early Learning Centre.

5. The Court notes that that order is an order for the personal protection of the wife and of H born … 2015 and J born … 2016 and that as a result that order attracts the powers of arrest without warrant to a police officer pursuant to s 114AA of the Family Law Act 1975 (Cth).

6. The husband file and serve a Response, an affidavit in support and a financial statement if practicable by 6.00 pm on 14 September 2017.

7. Leave is granted to either party to apply in relation to the orders made today on giving 24 hours’ notice to the Court and to each other.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5412 of 2017

Ms Akhtari

Applicant

And

Mr Alghazari

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for financial orders, property settlement and spousal maintenance.  The wife’s Initiating Application was filed 21 August 2017.  It was given a return date for some time in the future and the matter came to me on the basis of urgent/ex parte orders sought.  The background involves a wife and husband who are 34 and 36 years of age, respectively.  They were married in 2013 and started to live together in November of that year.  They separated on 19 June 2017 and have two children, H and J, who are two and a half years of age and 15 months. 

2. The applicant wife seeks orders on an ex parte basis and there are aspects of her evidence in respect of which she sought and today obtained a certificate under s 128 of the Evidence Act 1995 (Cth). I did not give any reasons in relation to that decision and will address that issue now. The authorities are not clear in respect of the question of a certificate under s 128 of the Evidence Act 1995 (Cth) issuing for evidence-in-chief. The provision itself, requires an objection to giving evidence as a trigger. In a decision of Ferrall & Blyton (2000) FLC 93-054, the Full Court of this Court, Nicholson CJ, Lindenmayer and Kay JJ, considered that it was appropriate to give a certificate in relation to evidence-in-chief.

3. The High Court in Cornwell v The Queen (2007) 231 CLR 260 addressed the issue in obiter. The High Court was concerned that on the basis that there was not, strictly speaking, an objection to giving evidence, there was no triggering event for a s 128 certificate and that one should not be provided. That discussion has found support in the New South Wales Supreme Court in a Court of Appeal decision of Song & Ying (2010) 273 ALR 213. Those three decisions have all been considered by a number of judges at first instance in this Court.

4. Certificates have been granted for evidence-in-chief at first instance. Reference has been made to comments of Hodgson J in the Court of Appeal where a link is made not so much to the question of an objection for the purposes of s 128 but to the question of compellability. The argument in favour of giving a certificate for evidence-in-chief runs that a combination of the nature of proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and the fact that the parties are obliged to make disclosure of certain matters, means that there is, in effect, a compellability about certain evidence and the very serious mischief that s 128 seeks to avoid, the right against self-incrimination, can be invoked to apply s 128 to evidence-in-chief.

5. It may be that this argument will be run again before the Full Court or the High Court and there may either be a refinement or a reversal of the Full Court’s decision in Ferrall & Blyton.  Meanwhile, in my view I am bound by that authority.  Here the certificate is sought in respect of particular paragraphs in the general category of evidence potentially about questions of revenue fraud or questions of obtaining money by deception, which could lead to a civil penalty. 

6. Turning to the substance of the matters pressed today, the wife seeks orders on an ex parte basis under s 114 of the Act restraining the husband, or people engaged or representing him, from assaulting, molesting, harassing, threatening or otherwise interfering with the wife; engaging in conduct that intimidates her; stalking her; coming within 500 metres of any property in which the wife is living or working; coming within 500 metres of the child care – the early learning centre that’s attended by one of the children.

7. And the wife would like that order identified as an order for personal protection and she has referred, in an order sought at paragraph six, to the assistance of the police. Section 114AA of the Act provides that in relation to orders for personal protection, a power of arrest without warrant is implied. These are orders of a civil court but where an injunction is in force under s 114 of the Act for the personal protection of a person and a police officer believes, on reasonable grounds, that there has been a breach of the injunction by doing something, then the police officer can arrest the respondent without a warrant.

8. The evidence is horrifying.  It is the wife’s evidence that both parties are professionals.  The wife says that the husband’s business involves connections with criminals.  She refers to him reporting to her that there was violence in relation to his parents’ home which he represented to her as being something arising out of a dispute; that, in a number of conversations, the husband is said to have made reference to people being killed.  By implication, there were references to her being killed if she did not deal with him appropriately or manage the breakdown of their marriage appropriately or whatever.  The wife assisted him in respect of criminal proceedings involving violence to which he was subjected in Country Y.  She refers to him making what she calls gunshot gestures in conversations with her.  Ironically, she says that he was the first one to say, “Well, we’re going to be divorced”.  And then she recites a number of conversations where he seemed to be concerned about the consequences of them being divorced.  The consequences about which he seemed most concerned were about financial arrangements rather than parenting arrangements. 

9. The wife gives some evidence about inappropriate dealings involving the husband and his clients, cash takings and so on.  There is ample reference in the documents to threats or threatening behaviour from the husband, risks associated with people associated with him and so on.  As I said earlier today, the utility of an order in this context from a civil court must be brought into question.  The fact that an order is sought of this nature from a civil court suggests perhaps that the wife may have overstated her concerns.  A person who would murder someone would presumably not be deterred because that action would also be a breach of an order of a civil court.  That said there is ample justification for granting the wife’s application.  The categories of conduct sought to be restrained are things that are not permitted in any event.  The husband is not permitted to assault, molest, harass, threaten or otherwise interfere with the wife.  He is not permitted to intimidate her.  He is not permitted to stalk her.  On the other hand a restraint upon attending within 500 metres of her property or 500 metres from a learning centre does impinge on his rights.  However, the balance of prejudice, for a short time, favours granting of the application. 

10. An order made on an ex parte basis must be the subject of a hearing on the merits as soon as the respondent would like and, in any event, the matter has to come back to Court in short order.  Whereas such an order might be expressed to be until further order, but only on the basis that there would be a hearing on the merits as soon as practicable, unless the parties otherwise agree.  The husband, in this case, will be able to bring the matter back, say, on 24 hours’ notice if there is some issue. 

11. The trouble with orders like this is that the husband’s best mate might live 475 metres from the Suburb C Early Child Care Centre. We just do not know. It might be that his medical appointments are near one of the addresses or whatever. But as I say, the balance of prejudice favours granting the orders. The evidence is worrying, to be euphemistic about it. So it seems to me that the order should be noted to be an order for personal protection which does the job of attracting s 114AA of the Act.

12. A raft of other orders will be pressed on an interim basis but that is the order that is sought on an urgent basis.  There is no financial aspect to it.  So normally in ex parte orders, there would be an undertaking as to damages but I do not think there is anything that requires that here.  We have an officer of the Court having given her sworn evidence it seems to me that that is sufficient for the time being. 

13. Sometimes ex parte orders have to be made.  They are not a good start for proceedings.  Hopefully the problems are not exacerbated with these orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 31 August 2017.

Associate: 

Date:  16 October 2017