J and D and Ors

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.