Backus & Abano (No 2)
[2022] FedCFamC1F 125
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Backus & Abano (No 2) [2022] FedCFamC1F 125
File number(s): PAC 6827 of 2020 Judgment of: HENDERSON J Date of judgment: 14 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Application by the respondent in the substantive proceedings to stay family law proceedings pending the finalisation of criminal law proceedings commenced in the state courts – Where the applicant is charge with serious sexual assaults against the respondent’s daughters, spanning a number of years – Where there is a substratum of common facts between the family law proceedings and the criminal proceedings – Where the full prosecution brief has not yet been served on the applicant – Where due to the operation of section 128(7) of the Evidence Act 1995 (Cth), a section 128 certificate if granted may not be sufficient to protect the applicants right to silence and not give evidence that may incriminate him – Family law proceedings stayed pending finalisation of the criminal charges which finalisation does not require a verdict or sentence to be passed – Costs reserved Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 4AA(1)(c), 4AA 2(b), (h), 44(3)
Evidence Act 1995 (NSW) s 128
Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Alexander & Cambridge Credit Corp (1985) 2 NSWLR 685; (1985) 10 ACLR 42
Clemett & Clemett (1981) FLC 91-013; [1980] FamCA 90.
Hearne v Street (2008) 235 CLR 125
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; (1986) 61 ALJR 102
McLachlan v Brown(No 9) [2019] NSWSC 10; [2019] ALMD 4069
Reid v Howard [1995] 184 CLR 1; 69 ALJR 863
R v Barbaro (Unreported, Court of Criminal Appeal of New South Wales, Handley JA, Grove and Hulme JJ, 20 July 1998)
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13
Trahn & Long (No.2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 69 Date of last submission/s: 2 March 2022 Date of hearing: 2 March 2022 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Campbell Paton & Taylor Counsel for the Respondent: Mr Lloyd Solicitor for the Respondent: Matthews Dooley & Gibson ORDERS
PAC 6827 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ABANO
Applicant
AND: MS BACKUS
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
14 MARCH 2022
THE COURT ORDERS THAT:
1.The proceedings commenced by Ms Backus in this Court on 18 December 2020 be stayed pending the finalisation of the criminal trial of Mr Abano, which finalisation does not require there be a verdict or sentence passed.
2.The hearing listed to commence on 26 April 2022 seeking a declaration as to the duration of the relationship and leave to commence proceedings out of time if required, be adjourned.
3.Ms Backus may apply to the Courts immediately upon the applicants’ criminal trial concluding for a hearing on the issue of the duration of the relationship and leave to commence proceedings out of time, if required.
4.A final hearing is to be listed within 6 months of the finalisation of the hearing specified in Order 3.
5.The costs of this application and costs thrown away as a consequence of these orders are reserved for both parties to the hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Backus & Abano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by Mr Abano, born in 1952, the respondent in substantive proceedings, to stay the family law proceedings commenced by Ms Backus, born in 1969, pending the outcome of his criminal law proceedings which would necessitate a vacation of the hearing listed on 26 April 2022.
The issues listed for hearing are the duration of the de facto relationship and if necessary, leave to commence the proceedings out of time. Mr Abano asserts the relationship ended in 2012 and Ms Backus asserts it ended in 2020. There is agreement that the parties commenced a de facto relationship in 2009.
When the matter was initially commenced by Ms Backus, Mr Abano’s response was to deny the existence of a de facto relationship and that denial was expressly noted in various directions made in February and March 2021. Sometime in May 2021, Mr Abano accepted that the parties had been in a de facto relationship but he disputed the date Ms Backus asserted the relationship had ended, namely late 2020.
If the Court finds that the de facto relationship continued until 2020 Ms Backus need not seek leave to commence the proceedings out of time as she filed her initiating application on 18 December 2020 which is well within the two year limitation period specified in s 44(5) of the Family Law Act 1975 (Cth)(“the Act”). The determination of the date of separation is important, as if it is not agreed the date of separation falls within a period of two years post the breakdown of the relationship, proceedings in this Court cannot move forward as the Court does not have jurisdiction.
Mr Alexander of counsel acted for Mr Abano and Mr Lloyd of counsel for Ms Backus.
The material I read was as follows:
For Mr Abano
(a)Amended Tender Bundle filed 25 February 2022;
(b)Application in a Proceeding filed 31 January 2022; and
(c)Affidavits filed 28 February 2022 and 5 January 2022.
For Ms Backus.
(a)Response to Application in a Proceeding filed 18 February 2022;
(b)Affidavit filed 18 February 2022; and
(c)Affidavit of Mr Abano sworn on 19 September 2021.
The gravamen of Mr Abano’s application for a stay of proceedings is that he is facing multiple serious criminal charges of indecent assaults upon a minor under the age of 16 years over a number of years, including post the time Mr Abano asserts the de facto relationship ended. The alleged victims are Ms Backus two, now adult female children.
Mr Abano was charged with these offences on 16 August 2021. The matter is again before the state criminal courts at the end of March 2022 and he does not anticipate a trial until 2023. The charges are serious and his Counsel submitted that if he is convicted he is facing a lengthy prison sentence.
Mr Abano’s counsel submitted that to proceed upon any civil hearing in the Federal Circuit and Family Court of Australia (“FCFCOA”), including one to determine when the parties de facto relationship ceased would compromise or put in jeopardy his right to silence to not give evidence that may incriminate him in the criminal proceedings he now faces. As such counsel’s submission was that the family law proceedings commenced by Ms Backus should be stayed until Mr Abano’s criminal matter is finalised.
Ms Backus does not agree with this position and seeks the hearing in April 2022 continue and objects to a stay of the proceedings generally.
The law in relation to the stay of proceedings is well-settled.
There is a long line of authority in relation to the principles surrounding an application for a stay of orders in relation to property and parenting matters as follows Trahn & Long (No.2)[1], Alexander & Cambridge Credit Corp[2], The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd[3], Jennings Construction Limited v Burgundy Royale Investments Pty Ltd[4], Clemett & Clemett[5]. This is an area of law well settled and traversed for hundreds of years in a common law country such as ours.
[1][2008] FamCAFC 194.
[2] (1985) 2 NSWLR 685; (1985) 10 ACLR 42.
[3] (1986) 160 CLR 220; [1986] HCA 13.
[4] 161 CLR 681; (1986) 61 ALJR 102.
[5] (1981) FLC 91-013; [1980] FamCA 90.
A leading decision in this jurisdiction on such a matters is Aldridge & Keaton (“Aldridge”)[6], a Full Court decision particularly in relation to parenting matters and where the stay is sought upon a filing of an appeal.
[6] [2009] FamCAFC 106.
In the decision of Aldridge[7] their Honours set out clearly the principles in a stay application. The statement of the principle of the law is set out in paragraph 18 and is as follows:
[7] Above, note 6.
…The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
*The onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
*a person who has obtained a judgment is entitled to the benefit of that judgment;
*a person who has obtained a judgment is entitled to presume the judgment is correct;
*the mere filing of an appeal is insufficient to grant a stay;
*the bona fides of the appeal
* a stay may be granted on terms that are fair to all parties — this may involve a court weighing the balance of convenience and the competing rights of the parties;
* a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted — this will be a substantial factor in determining whether it will be appropriate to grant a stay;
* some preliminary assessment of the strength of the proposed appeal — whether the appellant has an arguable case;
* the desirability of limiting the frequency of any change in a child's living arrangements;
* the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.
…
This is not an application for stay of judgement, rather a stay of an order listing proceedings for hearing pending the outcome in another court relating to one of the parties. Although many of the principles which are relevant to a stay application of a judgement are not strictly relevant to this stay application, the important principles distilled from the authorities are:
(a)the application before me is discretionary;
(b)Mr Abano has the onus to establish a proper basis to stay the proceedings;
(c)an assessment of his bona fides in bringing his application;
(d)any stay may be granted on terms;
(e)an assessment of the strength of Mr Abano’s case that the de facto relationship ended in 2012;
(f)the time before proceedings in this Court would resume; and
(g)balancing the competing rights of the parties including any hardship or prejudice that may be suffered.
The argument raised by Mr Abano is that he will be exercising his right to silence in the criminal trial. In those circumstances I do not doubt Mr Abano’s bona fides in bringing the application, nor that he has established at a prima facie level, a proper basis to stay the proceedings and thereby vacate the April 2022 hearing.
I was referred to various authorities in relation to the right of a citizen to exercise silence in the face of criminal charges and have the Prosecution prove its case which is the position Mr Abano takes in his matter at this time.
The High Court decision of Reid v Howard (“Reid”)[8] makes it clear that the right to privilege from self-incrimination does not relate merely to a material fact in issue but also collateral matters, which had the witness not been required to answer a question in cross examination would not have been revealed. For example, Mr Alexander submitted that at minimum the following will be facts in issue in the criminal trial namely; where the alleged sexual assaults occurred, at Mr Abano’s property or Ms Backus’s property; whether and which of the children were present at those times; and whether the children were being cared for by Mr Abano alone or was their mother present at all times.
[8] [1995] 184 CLR 1; 69 ALJR 863
Further he submitted that these are facts in issue in the family law proceedings to determine the duration of the relationship namely; in which property the parties cohabitated and for what period of time the parties cohabitated in each other’s properties; what periods of time the children cohabitated with Mr Abano in either property; and whether the children ever cohabitated with Mr Abano alone in either property, or whether he cared for them in the absence of the mother.
That the answer to those questions by Mr Abano in the civil proceedings may lead the Prosecution into another enquiry or line of enquiry which they otherwise would not have been able to engage in had he not been made to answer a particular question. That it is rather more the collateral information or advantage that could be gained by the Prosecution from answers that Mr Abano gives in cross examination that puts his right to silence and the Prosecution proving their case in jeopardy.
At first blush this argument seems difficult to accept when what this Court is being asked to do in the April hearing is determine when a de facto relationship ended. Further as Mr Lloyd, on behalf of Ms Backus submitted that this Court can grant a certificate to Mr Abano under s 128 of the Evidence Act which results in the evidence he gives in this matter being unable to be used in his criminal trial.
As Ms Backus emphasised in her affidavit, none of the children who have made complaint of sexual assault against Mr Abano will be giving evidence in their mother’s case, and neither will her son. The witnesses in the family law proceedings will be; for Mr Abano himself, his son, and a personal assistant; and for Ms Backus herself, and four other friends and relatives, but not her children.
I was referred by Mr Alexander to a decision of McCallum J in McLachlan v Brown(No 9)[9], where her Honour relied heavily upon the High Court’s decision in Reid.
[9][2019] NSWSC 10; [2019] ALMD 4069.
Two important principles were distilled by her Honour, McCallum J from Reid. They are as follows:
The first was its affirmation of the principle that the privilege against self-incrimination ‘is not simply a rule of evidence, but a basic and substantive common law right’: at 11 (Toohey, Gaudron, McHugh and Gummow JJ).
Secondly, it recognised that the common law right provided protection not merely against the use in evidence of compelled admissions, but also against disclosure which may set in train a process leading to other incriminating material: at 6-7 (Deane J, referring to Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 (Lord Wilberforce) and Sorby v The Commonwealth [1983] HCA 10 ; 152 CLR 281 at 294-5.
(as per original)
Mr Alexander submitted that the second point is highly relevant in this matter given it is important in the criminal trial where the alleged sexual assaults occurred, the timing of the assaults and whether Mr Abano had opportunity to commit those assaults namely, whether he was left alone with Ms Backus’s daughters unsupervised. These facts are particularly relevant in the criminal matter given the allegations of assault span many years and are unspecified to particular dates and in part where the alleged assaults occurred but specific as to the nature of the assaults.
Mr Alexander submitted that having regard to what the Court must consider in determining the existence of this de facto relationship post-2012 and as prescribed in the definition section of the Act at s 4AA, Mr Abano’s right to silence and protection from giving evidence that may incriminate him is in serious jeopardy if the hearing in April and the substantive family law proceedings continue.
Relevantly for these proceedings s 4AA (1)(c) states:
A person is in a de facto relationship with another person if:
…
having regard to all the circumstances of the relationship they have a relationship as a couple living together on a genuine domestic basis.
Section 4AA(2) of the Act sets out the factors the Court may take into account in determining whether a de facto relationship exists, the heading of that subsection is “Working out if persons have a relationship as a couple”. The relevant factors in this matter are at s (2)(b), “the nature and extent of their common residence” and at s (2)(h), “the care and support of children”.
Mr Alexander submitted that in making its enquiry as to whether their de facto relationship continued post 2012 and having regard to s 4AA(1)(c) and s 4AA(2)(b) and (h) of the Act, the Court would require Mr Abano to answer questions such as in which home did he, Ms Backus and the children live in and for how long; whether Mr Abano cared for the children with Ms Backus together, and if so when and for how long; whether Mr Abano cared for the children alone, and if so, where and for how long; questions about the nature and extent of their common residence and the care and support of children and all the circumstances of the relationship. That the answers to these questions by Mr Abano may set in train a process leading to other incriminating material namely, that he was caring for the children unsupervised at the mother’s home at a time when an alleged assault occurred and this will defeat the second principle set out in Reid.
That Mr Abano has not yet been served with the full prosecution brief and although he states in his affidavit of 5 January 2022, paragraph 11:
I have not participated in a record of interview with the police in respect of the criminal proceeding and I am maintaining my right to silence in the criminal proceedings. I do not want to be in a situation the Family Law Act proceedings where I may risk having to give evidence that may prejudice my defence in the criminal proceedings.
(as per original)
That in the absence of knowing the precise case against him, he cannot make an informed decision whether to maintain his right of silence.
It was also submitted that the difficulties which will be created by participating in the hearing in April 2022 goes to the very heart of the interests of justice and that to compel Mr Abano to answer in family law proceedings questions relating to care of the children, the nature and extent of common residence, and all the circumstances of their relationship, may significantly prejudice his right to silence and provide the Prosecution with other lines of enquiry that they may not have otherwise been able to pursue.
That although there will be prejudice to the wife in that she has prepared for this hearing; pleaded difficulty with accommodation; difficulty in having her personal items returned from Mr Abano’s residence; together with the inevitable stress and strain of these proceedings not being dealt with in a timely fashion; and a consequent further delay in the proceedings ultimately being determined, the prejudice to Mr Abano of the matter proceeding and the stay not being granted is a far greater prejudice to him than to the Ms Backus.
Further Mr Alexander submitted that once the criminal proceedings have been dealt with, Ms Backus will be able to rely upon her daughters to give evidence should they choose to do so and that this is an advantage to her.
Importantly, a further aspect going to the very heart of the interests of justice is that a certificate which could be granted under s 128 of the Evidence Act is an insufficient swapping of the right to silence and is a discretionary statutory measure that cannot be compared or substituted for the common law right of privilege against self-incrimination.
A matter not addressed by Mr Alexander but which is apparent is that if his client is found guilty of these serious criminal offences he will be gaoled and that may make the conduct of proceedings in this Court all the more difficult for him. If I determine to stay the proceedings and vacate the April 2022 hearing until such time as Mr Abano’s criminal trial has concluded, but before verdict or sentence is passed and he is ultimately gaoled, it would be unjust, unfair and a prejudice to Ms Backus for Mr Abano to then plead the hearing should be further adjourned whilst he serves a term of imprisonment. This is a potential prejudice to Mr Abano in bringing his application at this time to protect his right to silence and not give evidence that may be incriminating, and there may be consequences. That is matter for another day however.
Ms Backus argument was that in his affidavit of 19 September 2021 at paragraph 110 which she has relied upon in this matter, Mr Abano, has admitted that the parties were in a relationship up to 2020. At paragraph 109 under the heading “Breakdown of the relationship”, Mr Abano stated “In [late] 2020 Ms Backus’s daughter X rang me...”, and at paragraph 110, “I rang Ms Backus who did not deny this and we agreed to go our separate ways. I then asked Ms Backus to leave the property”.
That Mr Abano has admitted in this affidavit that the relationship was ongoing up to 2020. This is clearly an issue upon which Mr Abano will be cross examined as he will be on all other aspects of his assertions in his affidavit, such as at paragraph 85, where he states, “I was never involved or assisted with her children’s schooling or any activities in which they are involved”, and at paragraph 84, “I do not support Ms Backus’s children financially”, and other such matters that go to the nature of the relationship between the parties and the specific matters that the Court may consider in determining whether the de facto relationship continued up until October 2020.
I accept the submission of Mr Alexander that saying a relationship ended is not necessarily a concession that a party was in a de facto relationship at the time of ending. However this is a matter together with the evidence of the parties and their witnesses that will be tested at the hearing in April.
Mr Abano’s affidavit of 19 September 2021 is littered with admissions by him of times he, Ms Backus and her children were together at functions at his home and at paragraph 80 he states:
When I was recovering from my neck injury at [Suburb B] property in 2017, [Ms Backus] would often leave home early in the morning and be out for the day. [Ms W] (sic [Mr Abano]’s daughter) would come and visit me and brought me some food.
That paragraph may well support an assertion that Ms Backus was living at Mr Abano’s property in 2017 and this may be an admission to the length of the relationship.
I accept that Mr Abano will not be relying upon this affidavit in these proceedings as Mr Alexander indicated and consistent with the Harman principal as established in Harman v Secretary of State for the Home Department[10], and confirmed by the High Court of Australia in Hearne v Street (2008)[11], that affidavit could not form part of the criminal trial unless this Court gave leave for that affidavit to be produced in those proceedings. However, Ms Backus will be clearly relying upon what she asserts are admissions made by Mr Abano in the family law proceedings.
[10] [1983] 1 AC 280.
[11] 235 CLR 125.
In light of these admissions Mr Lloyd submitted that Mr Abano’s case that the de facto relationship ended in 2012 is weak and this is a consideration in these proceedings for a stay application, as it is in all applications of this nature.
I accept that submission generally. If however I find that to not grant the stay would place Mr Abano in jeopardy vis-à-vis his right to silence and to not give evidence that may incriminate him in pending criminal charges, the strength or otherwise of his case in this Court would not be a factor that would outweigh the protection of this important common law right all citizens enjoy.
I accept the submission of Mr Lloyd on behalf of Ms Backus that if this issue was determined, namely the date of the ending of the relationship, thus confirming the jurisdiction of the FCFCOA this would give the parties a better opportunity to resolve the proceedings by such means as a financial conference or mediation.
It is apparent to me on the facts and until Mr Abano’s criminal proceedings are finalised, final proceedings in this Court could not go to trial. It would clearly place Mr Abano’s right to silence, right not to self-incriminate himself by the giving of evidence in jeopardy, and may significantly impact upon his defence to the Prosecution’s case as a consequence of the result of in-depth cross examination of the totality of the parties’ relationship including the relationship with Ms Backus’s children and the nature and extent of their common residence. The issues for determination at a final hearing are far more extensive than are the issues for the determination of an end date of a de facto relationship.
Mr Abano’s evidence is that the criminal trial may be concluded sometime in 2023. On this evidence it would not be until sometime in 2023 that a final hearing in this matter could take place if this Court was found to have jurisdiction at the April 2022 hearing.
There is an inevitable delay in the finalisation of these proceedings in any event. In order to minimise that delay I can by order direct that as soon as Mr Abano’s criminal trial is finalised, and prior to any verdict or sentence being pronounced, that this application regarding the end date of the relationship, and if necessary leave to proceed out of time, be listed forthwith as a matter of priority. In the event it is determined this Court has jurisdiction I can by order direct a final hearing be listed within a further six months.
In such a scenario there would be minimal delay for Ms Backus in having her matter finalised by this Court in the event the parties are unable to reach their own resolution of the matter. I do accept that the determination of the end date of the relationship would assist in resolution but it is not a necessity to have a determination by a Court in order for the parties to come to their own agreement.
In relation to the question of delay and costs, it is true that the allegations made relate to serious sexual assaults commencing in 2010 and continuing up until sometime prior to 2020. It is correct that the complaint initially made by Ms Backus and later by her two daughters were only made at their earliest in August 2021.
Mr Alexander submitted that Ms Backus was aware of allegations by her daughters that Mr Abano had exposed his penis to her children as early as 2010. Annexure A in Mr Abano’s tender bundle in these proceedings is an affidavit of his dated 17 August 2010 in proceedings between Ms Backus and her former husband, and father of her children, Mr Backus.
At paragraph 27 of that affidavit Mr Abano says as follows:
I crave leave to refer to the Affidavit of [Mr Backus] sworn 15 July 2010 and say as follows in relation to the paragraphs of that Affidavit which are numbered and indented hereunder:-
49. I deny calling [Ms Backus] “Mother Pig”. I call her “Mother Cow” as a joke between [Ms Backus] and I and the children. I have heard [Mr Backus] call [Ms Backus] “Mother Pig” in front of the children and other people on several occasions. I deny have ever exposed my penis to any of the children.
…
(As per original)
In light of this affidavit Ms Backus was aware of these allegations in 2010 and any delay in the April hearing as a result of the criminal complaint and charges now laid lies at her feet and has little to do with Mr Abano. This is a correct statement of fact. However I accept Mr Lloyd’s submission that a delay in bringing historical sexual assault charges in respect of minors is not uncommon and there are many well documented psychological reasons why this is so.
Mr Abano has delayed in bringing the adjournment application as he was charged with the serious offences in August 2021 and did not file his application for an adjournment until February 2022.
In those circumstances if the adjournment is granted the costs of this application and costs thrown away as a consequence of an adjournment of the April hearing will be reserved for both parties to the hearing.
Finally Mr Lloyd submitted that the giving of certificate under s 128 of the Evidence Act in the family law proceedings would protect Mr Abano’s right to silence in his criminal proceedings.
GIVING OFA CERTIFICATE UNDER SECTION 128 OF THE EVIDENCE ACT
The giving of a certificate under s 128 of the Evidence Act may not protect Mr Abano from “setting in train a process leading to other incriminating evidence”[12] for the following.
[12] McLachlan v Brown (No 9) [2019] NSWSC 10; [2019] ALMD 4069, see paragraph 10.
Section 128 the Evidence Act is as follows
128 Privilege in respect of self-incrimination in other proceedings
(1) this section applies if a witness objects to giving particular evidence or evidence on a particular matter on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under Australian law or law of a foreign country or
(b) is liable to a civil penalty
….
(7) In any proceedings in an Australian court:
(a) evidence given by person in respect of which a certificate under this section has been given; and
(b) evidence of any information document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However this does not apply to a criminal proceedings in respect of the falsity of the evidence.
A certificate under s 128 of the Evidence Act if granted by the Court in the April proceedings would not protect Mr Abano in the criminal proceedings in respect of the falsity of the evidence. The salient evidence in the April proceedings will be all the circumstances of the parties’ relationship, including but not limited to the nature and extent of their common residence, the care and support of the children, financial independence, the commitment to a shared life, and the ownership use and acquisition of property.
There is a hot contest in this matter regarding the length of the parties’ de facto relationship. The determination of that issue will involve findings as to the length of shared residences, the time that Ms Backus children lived with Mr Abano and Ms Backus, the times Ms Backus children were in an unsupervised setting with Mr Abano, amongst other matters. Either Ms Backus is correct or Mr Abano is correct. They cannot both be correct and one, or either of them may be found to have given false evidence by way of affidavits filed in the proceedings and/or under cross examination. The consequences of Ms Backus evidence being found not correct or false is that she may not be able to bring proceedings under the Act.
The consequence of Mr Abano’s evidence not being found to be correct and/or false in the family law proceedings is that s 128 certificate granted to him may not offer him protection in his criminal proceedings.
Thus although a s 128 certificate, consistent with the principles set out in Reid, protects not only direct evidence being used in other proceedings but also indirect evidence set in train by the giving of the direct evidence, the protection of a certificate does not apply in criminal proceedings in respect of the falsity of the evidence. The decision of Handley J in R v Barbaro (Unreported, Court of Criminal Appeal of New South Wales, Handley JA, Grove and Hulme JJ, 20 July 1998)[13] is an unreported decision of the NSW Court of Criminal Appeal dated 20 July 1998 concerning an Appeal by the Crown from a decision of Armitage DCJ to stay a respondent’s retrial until after the retrial of a third party. His Honour said:
It is not appropriate for anything final to be said about the operation of s 128 of the Evidence Act in the circumstances of this case. It is sufficient to note that it is arguable that a certificate granted pursuant to s 128 (6) would not protect Mr McKenzie from the risk of further incrimination in respect of the same evidence having regard to the provisions of s 128(7).
[13](Unreported, Court of Criminal Appeal, Handley JA, Grove and Hulme JJ, 20 July 1998)
Relevantly in these proceedings, s 128(7) of the Evidence Act 1995 (NSW) is in the same terms as s 128(7) of the Commonwealth Evidence Act.
This possibility is a significant risk to Mr Abano’s right to silence to not give evidence that may incriminate him in his criminal proceedings. Thus although at first blush the giving of a s 128 certificate would protect Mr Abano in his criminal proceedings, if he is found to have given false evidence the certificate may not protect him and this is a real possibility given there is a significant substratum of common facts to be found in both the family law proceedings and the criminal law proceedings.
Mr Abano has not relied upon his 19 September 2021 affidavit in this hearing, consistent with the Harman principal, that an affidavit cannot be used in criminal proceedings unless the FCFCOA gives leave for it so to be used. If leave is not granted and the family law proceedings are stayed and the April 2022 proceedings adjourned, Mr Abano’s right to silence and to not give evidence that may incriminate him is as assured as it can be.
Even if leave is granted to provide that affidavit in the criminal proceedings Mr Abano can still maintain his right to silence requiring the Prosecution to prove its case and that affidavit will form one part of the factual matrix to be determined in those proceedings.
There will be a delay in the finalisation of the ultimate proceedings in any event whether the April hearing proceeds or not as Mr Abano is facing serious charges which if he is convicted of is likely to result in him being gaoled for a significant period of time.
In all of the above circumstances to maintain the hearing in April 2022 significantly jeopardises Mr Abano’s right to silence and common law right and protected by legislation to not give evidence that may incriminate him.
On the basis of these findings I have formed the view that the family law proceedings should be stayed and the April 2022 hearing adjourned until such time as Mr Abano’s criminal trial has concluded, but there need be no verdict or sentence before family law proceedings commence. To not stay the proceedings and adjourn the hearing is to potentially seriously jeopardise Mr Abano’s right to silence and his defence to the criminal prosecution and that is the balance of convenience as I have found it to be.
I will order that the hearing in 26 April 2022 be adjourned and the family law proceedings stayed pending the finalisation of Mr Abano’s criminal trial which finalisation does not require there be a verdict or sentence passed on Mr Abano.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 14 March 2022
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