DE LUCA & MARTINELLI - [2016] FamCA 207

FAMILY COURT OF AUSTRALIA

DE LUCA & MARTINELLI

[2016] FamCA 207

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the applicant seeks that the trial be vacated and the proceedings be stayed until the criminal proceedings are determined by South Australian Police – where the applicant’s concern is self-incrimination – where there is no criminal investigation pending – where consideration is given to the guidelines as set out in McMahon v Gould – where the application is dismissed.

FAMILY LAW – EVIDENCE – certificate pursuant to section 128 of the Evidence Act 1995 (Cth) – where consideration is given as to whether it is in the interests of justice that the witness should be given a certificate – where a certificate is granted in respect of any evidence the applicant intends to give by way of affidavit, evidence in chief or under cross examination.

Family Law Act 1975 (Cth) s 34, 75
Evidence Act 1995 (Cth) s 128

McMahon & Gould (1982) 7 ACLR 202
Reid v Howard (1994) 184 CLR 1
Re K (1994) FLC 92-461
Schwaller-Schroeder & Schwaller-Schroeder [2012] FamCA 1121
Western Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150
X7 v Australian Crime Commission & Anor (2013) 298 ALR 570

APPLICANT:

Ms De Luca

RESPONDENT:

Mr Martinelli

FILE NUMBER:

ADC

388

2014

DATE DELIVERED:

5 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

22 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Powell QC

SOLICITOR FOR THE APPLICANT:

Bambrick Legal

COUNSEL FOR THE RESPONDENT:

Mr Lindsay

SOLICITOR FOR THE RESPONDENT:

Diane Myers Pty Ltd

UPON NOTING that all applications for final orders have been listed for final hearing commencing 4 July 2016 and that the parties have previously filed trial affidavits

Orders

The matter is listed for mention at 9.15am on 16 June 2016.
That by 4pm on 6 May 2016 the husband file and serve upon all other parties:
(a)an amended application (if required) setting out with precision the orders to be sought;
(b)any additional affidavits of evidence in chief of all witnesses including the applicant relied upon; and
(c)a financial statement that complies with Chapter 13 of the Family Law Rules.
That the husband pay all setting down and trial fees (if required) by 4pm on 6 May 2016.
That by 4pm on 17 June 2016 the wife file and serve upon all other parties:
(a)an amended response (if required) setting out with precision the orders to be sought;
(b)any additional affidavits of evidence in chief of all witnesses including the respondent relied upon;
(c)a financial statement that complies with Chapter 13 of the Family Law Rules.
That no party file any further material other than as provided by these orders without leave of the Court.
That prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties outline…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DE LUCA & MARTINELLI [2016] FamCA 207
Case: [2016] FamCA 207
Decision Date: 5 April 2016

CaseChat Overview and Summary

In the matter of *De Luca & Martinelli*, Berman J of the Family Court of Australia considered an application by the husband seeking to vacate the trial and stay proceedings until the determination of potential criminal proceedings by South Australian Police. The husband's primary concern was the risk of self-incrimination. However, the Court noted that no criminal investigation was currently pending.

The legal issues before the Court were whether the proceedings should be stayed due to the risk of self-incrimination, and whether a certificate should be granted under section 128 of the *Evidence Act 1995* (Cth) to protect a witness from the adverse consequences of giving evidence. The Court considered the guidelines established in *McMahon v Gould* regarding stays of proceedings.

Berman J dismissed the husband's application for a stay, finding that the circumstances did not warrant such an order, particularly in the absence of an active criminal investigation. The Court also considered the granting of a certificate under section 128 of the *Evidence Act 1995* (Cth). The Court determined that it was in the interests of justice to grant such a certificate to Ms De Luca in respect of any evidence she intended to give by way of affidavit, examination in chief, or under cross-examination, specifically concerning allegations related to business funds and matters detailed in various affidavits. The Court also made detailed procedural orders regarding the filing of documents, setting down fees, and the preparation for trial.

Orders

Orders of the court

The matter is listed for mention at 9.15am on 16 June 2016.

That by 4pm on 6 May 2016 the husband file and serve upon all other parties:

(a) an amended application (if required) setting out with precision the orders to be sought;

(b) any additional affidavits of evidence in chief of all witnesses including the applicant relied upon; and

That the husband pay all setting down and trial fees (if required) by 4pm on 6 May 2016.

That by 4pm on 17 June 2016 the wife file and serve upon all other parties:

(a) an amended response (if required) setting out with precision the orders to be sought;

(b) any additional affidavits of evidence in chief of all witnesses including the respondent relied upon;

That no party file any further material other than as provided by these orders without leave of the Court.

That prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties outline of case.

That the parties have liberty to approach the Registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.

That the practitioners for the parties file and serve electronically to by 4pm on 29 June 2016 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;

(d) a list of objections to evidence upon which rulings are required; and

(e) a bullet point summary of argument in relation to the issues in dispute.

That each party provide to the Court at the commencement of the hearing a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

10.

That the Application in a Case filed 15 March 2016 is dismissed.

11.

That Ms De Luca is granted a certificate under section 128 of the Evidence Act 1995 (Cth) in respect of any evidence that she intends to give by way of affidavit, examination in chief or under cross examination in respect of the following matters:

(a) the allegation of the husband that the wife accessed funds from his business namely, Martinelli Pty Ltd without his approval, knowledge or consent;

(b) the matters raised in paragraphs 55 to 61 of the husband’s trial affidavit filed 28 January 2015; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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