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…
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CaseChat Overview and Summary
The case of Backus & Abano (No 2) involved the parties, Ms Backus and Mr Abano, in a family law dispute. The central issue in this case was whether a certificate under section 128 of the Evidence Act, which is meant to protect witnesses from self-incrimination, would shield Mr Abano from potential repercussions in criminal proceedings. The court was required to decide whether the certificate, if granted in the family law proceedings, would protect Mr Abano from criminal liability related to the veracity of his evidence. This required the court to interpret the provisions of section 128 of the Evidence Act, particularly in the context of the potential falsity of evidence given by Mr Abano.
The court meticulously examined the legal framework of section 128 of the Evidence Act, which provides a privilege against using evidence given by a witness against them in certain circumstances. The court acknowledged that while such a certificate protects against the direct use of the evidence, it does not extend to criminal proceedings concerning the falsity of the evidence. The court referenced previous case law, such as McLachlan v Brown (No 9) and R v Barbaro, to support its interpretation that the certificate does not offer protection against charges of providing false evidence in criminal proceedings. This decision was crucial in determining that the evidence obtained in the family law proceedings, including the contentious issue of the length of the de facto relationship, could still be scrutinized for its veracity in a criminal context.
Ultimately, the court concluded that a certificate under section 128 of the Evidence Act, even if granted in the family law proceedings, would not protect Mr Abano from potential criminal charges related to the falsity of his evidence. This decision underscores the limited scope of protection offered by the Evidence Act in such situations, emphasizing that while it prevents the direct use of the evidence, it does not shield the witness from criminal liability for providing false evidence. This nuanced understanding of the law was critical in resolving the dispute between Ms Backus and Mr Abano.
The court’s final orders, while not explicitly detailed in the text, would likely involve the allowance of certain evidence in the family law proceedings, subject to the limitations imposed by the interpretation of section 128 of the Evidence Act. This decision highlights the importance of careful consideration when granting certificates under section 128, particularly in complex family law cases where the evidence may have far-reaching implications beyond the immediate proceedings.
The court meticulously examined the legal framework of section 128 of the Evidence Act, which provides a privilege against using evidence given by a witness against them in certain circumstances. The court acknowledged that while such a certificate protects against the direct use of the evidence, it does not extend to criminal proceedings concerning the falsity of the evidence. The court referenced previous case law, such as McLachlan v Brown (No 9) and R v Barbaro, to support its interpretation that the certificate does not offer protection against charges of providing false evidence in criminal proceedings. This decision was crucial in determining that the evidence obtained in the family law proceedings, including the contentious issue of the length of the de facto relationship, could still be scrutinized for its veracity in a criminal context.
Ultimately, the court concluded that a certificate under section 128 of the Evidence Act, even if granted in the family law proceedings, would not protect Mr Abano from potential criminal charges related to the falsity of his evidence. This decision underscores the limited scope of protection offered by the Evidence Act in such situations, emphasizing that while it prevents the direct use of the evidence, it does not shield the witness from criminal liability for providing false evidence. This nuanced understanding of the law was critical in resolving the dispute between Ms Backus and Mr Abano.
The court’s final orders, while not explicitly detailed in the text, would likely involve the allowance of certain evidence in the family law proceedings, subject to the limitations imposed by the interpretation of section 128 of the Evidence Act. This decision highlights the importance of careful consideration when granting certificates under section 128, particularly in complex family law cases where the evidence may have far-reaching implications beyond the immediate proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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