Appearances: Mr. Dickson of Counsel for the husband
Mr. O’Shannessy of Counsel for the wife
Mr. Ackman QC with him Mr. Ham of Counsel for the 2^nd, 3^rd and 4^th respondents
Mr. Isaiah of Counsel for the 5^th respondent
No appearance for the 6^th respondent

Family law – self-incrimination in other proceedings – privilege certificate – self-incriminating evidence - burden of proof – s.79, s.106B Family Law Act 1975 – s.128 Evidence Act 1995 – r.15.09 Family Law Rules

INDEX

ISSUE

APPLICATION

AFFIDAVIT
PROCEDURAL ORDERS

SUBMISSIONS

BACKGROUND
ORDERS OF 17 JULY 2006
WIFE’S FURTHER AFFIDAVIT
18 JULY 2006 ORDERS
SECTION 128
HUSBAND’S SUBMISSIONS
SUBMISSIONS ON BEHALF OF SECOND, THIRD AND FOURTH RESPONDENTS
OTHER SUBMISSIONS
BURDEN OF PROOF
S.128 CERTIFICATE
EVALUATION OF EVIDENCE
S.128(1)(a)
REASONABLE GROUNDS FOR OBJECTION – S.128(2)
THE INTERESTS OF JUSTICE – S.128(5)(c)
IDENTIFICATION OF PARTICULAR OFFENCE
OTHER ISSUES
RESTRICTED S.128 CERTIFICATE

ORDER

ISSUE

The husband has applied to the Court for a Certificate pursuant to s.128 of the Commonwealth Evidence Act 1995 (“Evidence Act”) as to evidence he would propose to give by affidavit in the further hearing of the applications before the Court pursuant to s.79 and s.106B of the Family Law Act 1975 (“the Act”). The granting of such a Certificate is supported by the wife but strongly opposed by the second, third and fourth respondents. The fifth respondent has not involved itself in this issue and the sixth respondent has absented himself.

APPLICATION

The husband filed on 11 July 2006 a Form 2 application for the following orders:
(i)that upon the husband being required to swear an affidavit or give evidence in the proceedings a Certificate issue pursuant to s.128 of the Evidence Act (Cth) in relation to the contents of such evidence;
(ii)such further or consequential orders as the Court deems fit.

AFFIDAVIT

That application was supported by an affidavit sworn and filed by the husband on 11 July 2006, the primary paragraphs of which read as follows:
“3.The Orders of 28 January 2004 (“the orders”), finalised matters between the wife and me in relation to the then Section 79 proceedings. Pursuant to the orders, the wife retained any entitlements which our trust had in the development, and continued the application pursuant to Section 106B seeking to set aside the service agreement and realise our trust’s entitlement in the development.
4.I maintained at that time, in my affidavit material, that the service agreement was commercial and appropriate. There were a number of significant and very relevant matters to which I did not refer at the…

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.

Continue reading J and D and Ors

Details

AGLC: J and D and Ors [2006] FamCA 729
Case: [2006] FamCA 729
Decision Date: 27 July 2006

CaseChat Overview and Summary

The case involved the husband applying to the Family Court of Australia for a certificate under section 128 of the Evidence Act 1995 (Cth). This certificate would grant him privilege against self-incrimination concerning evidence he intended to provide in ongoing proceedings under sections 79 and 106B of the Family Law Act 1975. The wife supported the application, while the second, third, and fourth respondents opposed it. The fifth respondent took no part in the issue, and the sixth respondent did not appear.

The primary legal issue before the Court was whether to grant the husband's application for a certificate under section 128 of the Evidence Act. This required the Court to consider whether the evidence the husband proposed to give would tend to incriminate him in a criminal offence, whether it was in the interests of justice to grant the certificate, and whether there were reasonable grounds for the objection. The Court also had to determine the scope of any such certificate, given the context of prior property settlement orders that had been set aside by consent.

Justice Young considered the husband's affidavit, which stated his concern that evidence regarding a service agreement and the structure of a trust would tend to indicate he had committed a criminal offence in previous property proceedings. The Court also had regard to an affidavit from the wife, which detailed conversations with the husband suggesting the service agreement was a sham and that he had an arrangement with another party for a significant sum of money, which he feared might not be honoured. The Court noted that the previous consent orders of 28 January 2004 had been set aside by consent on 17 July 2006, meaning the substantive section 79 proceedings remained before the Court.

The Court ultimately granted a restricted certificate under section 128 of the Evidence Act. This decision was made after considering the husband's stated concerns about potential criminal offending and the wife's evidence, which corroborated these concerns. The certificate was limited to evidence that tended to incriminate the husband in a criminal offence, acknowledging the interests of justice in allowing the husband to give evidence in the ongoing family law proceedings without prejudicing himself in relation to potential criminal matters.

Orders