Field & Kingston
[2017] FamCA 208
•7 April 2017
FAMILY COURT OF AUSTRALIA
| FIELD & KINGSTON | [2017] FamCA 208 |
| FAMILY LAW – PROPERTY – Interim Proceedings – Where the wife seeks a certificate pursuant to Section 128 of the Evidence Act – Where there is insufficient evidence in support of the application – The wife’s application be dismissed. |
Evidence Act 1995 Section s 128
Family Law Act 1975 (Cth) s 79
Aitken & Murphy [2011] FamCA 785
Atkinson & Atkinson (1997) FLC 92-728
Ferrall and McTaggart (trustees for Sapphire Trust) v Blyton (2000) FLC 93-054
Jarvis & Pike (2013) 50 Fam LR 593; [2013] FamCAFC 196
| APPLICANT: | Ms Field |
| RESPONDENT: | Mr Kingston |
| FILE NUMBER: | PAC | 2095 | of | 2014 |
| DATE DELIVERED: | 7 April 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 12 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg |
| COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
Order 1 sought by the wife in her Amended Application in a Case filed 4 November 2016 is dismissed.
The balance of the application is adjourned to 2.15pm on 23 May 2017 before Registrar Murdoch for further directions.
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 Field & Kingston 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 PARRAMATTA |
FILE NUMBER: PAC 2095 of 2014
| Ms Field |
Applicant
And
| Mr Kingston |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant wife, in proceedings with her former husband for a property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”), seeks a number of interim property orders. Only one of the orders sought was pressed at interim hearing on 12 December 2016.
Accordingly, this judgment is concerned with the only order sought by the Applicant wife at interim hearing that a certificate be granted to her pursuant to Section 128 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) regarding evidence to be given as to her income and expenditure.
background
The husband, who is 49, and the wife, who is 42, were married in 2002 and have three children who primarily live with the husband in the former matrimonial home.
The parties separated on a final basis in January 2011 and were divorced in July 2014.
The wife commenced property settlement proceedings by Initiating Application filed 4 May 2015. The matter has progressed very little since the initiation of proceedings.
It appears that the matrimonial property broadly consists of the former matrimonial home in Suburb B, a business owned by the husband and a business owned by the wife.
During the marriage the husband ran his own business. In 2008 the husband established a business in which he asserts the wife was not involved.
The wife is the owner and operator of a business which includes among other activities training given by the wife. The business was established by her in 1994 and was run by the wife alone throughout the marriage.
There is no dispute that the former matrimonial home was used by the wife for the purposes of her business from early 2002. However there are factual disputes between the parties as to who paid for various expenses associated with running the business from the matrimonial home.
The wife deposes in her affidavit filed 8 December 2016 that she cannot and does not currently work due to a physical injury and is unable to operate the business from the former matrimonial home due to the conduct of the husband. The wife still operates the business but currently employs a replacement trainer to attend the matrimonial home and conduct the business.
There are significant matters in dispute between the parties regarding financial and non-financial contributions to the relationship.
The husband contends that the wife indulged in an extravagant lifestyle during the marriage and that there are significant discrepancies between the wife’s expenditure and the financial losses of the wife’s business outlined in her business records.
The husband further contends that the wife may have sources of income outside her business that she has not disclosed that allowed her to maintain this high level of expenditure.
In 2015 the parties were ordered to obtain valuation of each of the businesses prior to a conciliation conference being held.
As at the date of interim hearing the valuation was outstanding.
On 22 January 2016 the wife filed an Application in a Case seeking interim property orders and costs.
In June 2016 the parties received correspondence from the single expert engaged for the purposes of valuation requesting further information and documents in relation to each of their businesses in order to progress his valuation.
It appears to be common ground that the wife needs to disclose the information and documents requested by the expert in order to provide full disclosure.
On 14 July the husband filed a Response to the wife’s Application in a Case opposing the orders sought by the wife and seeking orders as to costs. The husband asserts that the wife has failed to provide full and frank disclosure of her financial circumstances.
The Application
The wife by way of Amended Application in a Case filed 4 November 2016 seeks an order that pursuant to Section 128 of the Evidence Act she be granted a certificate regarding evidence to be given by her in the proceedings in relation to her income and expenditure.
In her affidavit filed 6 October 2016 the wife deposes that providing particulars as requested by the husband may tend to prove that she has committed an offence against or arising under Australian law or is liable to a civil penalty. The wife deposes that the particulars requested by the husband are in respect of the following matters:
a)The discrepancy between the business records produced by the wife and her level of expenditure in the period 30 June 2011 to 30 June 2013;
b)The income derived by her from her business and other sources;
c)A substantial unexplained source of funding in respect of the financial year ending June 2014;
d)Inaccuracies in her income tax returns for the years 2005 to 2015 inclusive.
At interim hearing the only evidence the wife relied upon in support of her application for a Section 128 certificate was her own affidavit filed 6 October 2016 where she deposes the following:
[3] By his affidavit filed on 14 July 2016 the husband makes numerous allegations against me in relation to my financial disclosure. These allegations include the following:
a) At [50] that there is a discrepancy between the business records of the business [Company C] produced by me and my level of expenditure in the period 30 June 2011 to 30 June 2013;
b) At [51] that I have not revealed all of the income derived by [CC] and possibly have not disclosed income from sources other than [CC];
c) At [57] and [60] – [63] that I have a substantial source of funding that I have not explained in respect of the financial year ending June 2014;
d) At [64] – [101] that my income tax returns for the years 2005 to 2015 inclusive are inaccurate.
[4] The husband has requested particulars in respect of the above matters. So far as I am able I wish to provide a response to the husband’s allegations and requests. I seek to do so by providing a further affidavit in relation to these matters. However, before doing so, I seek that the Court grant me a certificate under Section 128 of the Evidence Act on the basis that it may be possible that the information I provide in that affidavit may tend to prove that I have committed an offence against or arising under an Australian law or am liable to a civil penalty.
Counsel for the wife submits that the wife was not required to provide the actual evidence or a draft of that evidence which necessitates the protection of the Section 128 certificate.
When asked to identify the evidence she contends may tend to prove she had committed an offence or was liable to a civil penalty, counsel for the wife submitted that paragraph [4] of the wife’s affidavit outlined her concerns.
Counsel for the husband submits that the husband is “neutral” on the wife’s application for a Section 128 certificate provided that the Court is satisfied such a certificate is required. However, it is the husband’s case that the court ought not grant the certificate on the basis that the wife has not identified how the evidence she would provide may tend to prove she had committed an offence.
During the course of submissions the Court raised that the authorities indicate that the applicant for a certificate is required to identify the particular offences for which the applicant may be liable. Only then did the wife produce a draft certificate in respect of evidence provided in these proceedings “as that evidence may tend to prove that she has committed an offence under Division 2 of Part 3 of the Tax Administration Act 1953 (Cth), Division 4 of Part 7 of the Crimes Act 1900 (NSW) or Section 268.102 of the Criminal Code Schedule to the Criminal Code Act 1995 (Cth).”
Counsel for the husband objected to a Section 128 certificate being granted in these terms on the basis that these terms are too broad.
Counsel for the husband further submitted that the usual procedure when making an application for a Section 128 certificate is that the applicant provide to the court an unsigned or unfiled affidavit outlining the evidence to be given requiring the protection of the certificate. Such an affidavit is then considered by the court to determine whether the applicant has reasonable grounds for objecting to giving the evidence.
No further evidence in the form of a draft affidavit or otherwise, was provided by the wife even when the Court indicated a continuing difficulty in identifying how the wife’s evidence supported the contention that the information she would provide may tend to prove she had committed an offence.
The Law and Discussion
Section 128 of the Evidence Act 1995 (Cth) provides 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 an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this Section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c)of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this Section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this Section if:
(a) the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an Australian court:
(a)evidence given by a 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 proceeding in respect of the falsity of the evidence.
Note:Subsection 128(7) differs from subsection 128(7) of the NSW Act. The NSW provision refers to a NSW Court instead of an Australian Court.
(8)Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
…
(11)A reference in this Section to doing an act includes a reference to failing to act.
…
A Section 128 certificate may be granted for evidence required to be given by a party under cross examination or evidence given in chief.[1]
[1] Ferrall and McTaggart (trustees for Sapphire Trust) v Blyton (2000) FLC 93-054.
It was stated by the Full Court in Atkinson & Atkinson[2] that “significant latitude” must be afforded to the party claiming privilege under Section 128 as the party is “in a better position than the court to know where the line of inquiry might lead.” This was confirmed by the Full Court in Jarvis & Pike[3].
[2] (1997) FLC 92-728.
[3] (2013) 50 Fam LR 593; [2013] FamCAFC 196.
Importantly, as the protection provided by a Section 128 certificate is broad one, the Full Court held in Aitken & Murphy[4] at [88] that:
… it is important to identify and circumscribe the particular evidence or evidence of a particular matter in s 128(1) to which the certificate attaches.
[4] [2011] FamCA 785.
While the party claiming the privilege should not be required to fully explain or disclose matters causing the party to seek a Section 128 certificate, the Full Court in Atkinson emphasised at [7.22] that:
Before a claim for privilege may be upheld the court must be satisfied that there is a bona fide apprehension of prosecution for some particular offence on reasonable grounds. It is not sufficient, to properly raise an objection under s128 of the Evidence Act, for the litigant to merely say, as the husband did, that he or she declines to give the relevant evidence on the ground that it may incriminate them.
At interim hearing the wife sought only to rely on the statements made in her affidavit of 6 October 2016.
Those statements amount to the wife merely declining to provide the relevant information on the ground that “it may be possible” that the information may incriminate her and do not provide sufficient evidence for me to determine whether there are reasonable grounds for the wife objecting to providing the evidence.
The circumstances of this case appear to be similar to the factual background in Aitken & Murphy. In that case the applicant was seeking a certificate with respect to evidence that he had under-declared his income to the Australian Taxation Office (ATO). The applicant sought a Section 128 certificate in respect of his Financial Statement and affidavits on the grounds that that information would tend to prove that he had committed certain tax law offences. However, that case may be distinguished as the applicant had already provided voluntary disclosure to the ATO and had annexed his updated tax assessments to his affidavit.
The wife has not, in evidence before this Court, disclosed to any regulatory body that she has committed any offences, nor has she provided documentation in the form of updated income tax assessments or otherwise that would provide an indication of the information that may tend to prove she is liable for an offence or subject to a civil penalty.
She has also provided only a broad indication of Sections of three pieces of legislation under which she may be liable for any number of offences (which are not specified).
In my view, the wife in this application has provided so little evidence that I cannot even engage with an assessment of whether she has reasonable grounds to object to providing the particulars sought by the husband.
At this time, the wife, even given significant latitude, has not produced sufficient information for me to determine whether the evidence she objects to providing may tend to prove she has committed an offence under Australian law or is liable to a civil penalty. Accordingly, there is no evidence upon which I can assess whether there are reasonable grounds for such an objection.
While the wife’s application for a Section 128 certificate currently lacks sufficient evidence to support it being granted, I note that Section 128(6) provides that in the circumstances of an objection to evidence being overruled and the court finding there were reasonable grounds for objection subsequent to that evidence being given a certificate will be issued.
Conclusion
The wife’s application for a Section 128 certificate is dismissed.
Accordingly, the orders I make are those set out at the forefront of these reasons for Judgment.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 April 2017.
Associate:
Date: 7 April 2017
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