Field & Kingston

[2018] FamCAFC 145

FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON [2018] FamCAFC 145

FAMILY LAW – APPEAL – EVIDENCE – Privilege – Where the wife sought a certificate pursuant to s 128 of the Evidence Act1995 (Cth) (“the Evidence Act”) in relation to the wife’s proposed evidence in chief – Where the primary judge dismissed the application on the basis that there was insufficient evidence to determine whether the wife had reasonable grounds for objecting to giving the evidence.

FAMILY LAW – APPEAL – EVIDENCE – Compellability – Where a witness must be “required” or compelled to give the evidence to which the objection is made – No distinction between oral and affidavit evidence – Whether the duty to give full and frank disclosure under the Family Law Rules 2004 (Cth) (“the Rules”) compels a party to give evidence which may abrogate from the privilege against self-incrimination – The Rules as per the “principle of legality” evince no intention to impinge on a party’s privilege against self-incrimination – Preliminary view that if a party is directed to file an affidavit on a specific subject matter, such circumstances may contain the requisite degree of compulsion to permit the issuing of a certificate – Where there is no basis on which the certificate could have been granted to the wife in this case as the element of compulsion was lacking.

FAMILY LAW – APPEAL – EVIDENCE – Reasonable grounds for making an objection – Where the “objection” under s 128(2) of the Evidence Act refers to giving evidence that “may tend” to prove that the witness has committed an offence or is liable to a civil penalty – Where the primary judge took the view that in order for a s 128 certificate to be granted the wife had to provide to the court the evidence that was objected to – Where the primary judge erred by focussing on identifying the evidence as opposed to considering whether there were reasonable grounds for the wife’s objection – Where the primary judge was nevertheless correct in refusing to grant a s 128 certificate as it was not available for the wife’s proposed evidence in chief – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the order dismissing the wife’s application did not finally determine her rights in relation to a s 128 certificate – Where leave to appeal is therefore necessary.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 123
Family Law Rules 2004 (Cth) rr 13.01 – 13.06

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)
Law Reform Commission, Evidence (Final), Report No 38 (1987)

Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Chao v Chao [2008] NSWSC 584
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner