Field & Kingston

In the case of Field & Kingston, the wife sought a certificate under section 128 of the Evidence Act 1995 (Cth) to avoid giving evidence that might incriminate her. The Federal Circuit and Family Court of Australia was tasked with determining whether the wife had reasonable grounds for objecting to giving this evidence. The wife's application was dismissed by the primary judge, who concluded that there was insufficient evidence to establish that she had reasonable grounds for her objection.

The legal issues before the court were whether a witness must be compelled to give the evidence in question for the privilege to apply and whether the duty to give full and frank disclosure under the Family Law Rules 2004 (Cth) compels a party to give evidence that may abrogate from the privilege against self-incrimination. The court held that the Rules do not intend to impinge on a party’s privilege against self-incrimination. It was also established that the objection must be based on evidence that may tend to prove that the witness has committed an offence or is liable to a civil penalty.

The court found that the primary judge erred in focusing on identifying the evidence rather than considering whether there were reasonable grounds for the objection. However, the court upheld the dismissal of the wife’s application for a certificate as it was not available for her proposed evidence in chief. The appeal was dismissed, but the wife was granted leave to appeal due to the order not finally determining her rights in relation to a section 128 certificate. There was no order as to costs.