Legal Research
Cases
Khoi & Khoi

Khoi & Khoi

Case [2022] FedCFamC2F 932 10 June 2022

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khoi & Khoi [2022] FedCFamC2F 932

File number: MLC 9955 of 2021

Judgment of: JUDGE TURNBULL

Date of judgment: 10 June 2022

Catchwords:
FAMILY LAW – PROPERTY – jurisdiction

EVIDENCE LAW – PRIVILEGE – self-incrimination – certificate under s 128(3) – where affidavit material read into evidence prior to any objection

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth)

Cases cited:
Cornwell v The Queen (2007) 231 CLR 260

Ferrall v McTaggart [2000] FamCA 1442

Field v Kingston [2018] FamCAFC 145

Forlan v Forlan [2017] FamCA 58

Lewis Securities Ltd v Carter [2017] NSWSC 412

LGM v CAM [2011] 328 FLR 227

Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354

Ross v Internet Wines Pty Ltd [2004] NSWCA195

Shanahan v Jatese Pty Ltd [2018] NSWCA 1097

Song v Ying [2010] NSWCA 237

Secondary sources: Stephen Odgers, Uniform Evidence Law (Lawbook, 16^th ed, 2021)

Division: Division 2 Family Law

Number of paragraphs: 43

Date of hearing: 19-20 May 2022, 8 June 2022

Place: Heard in Hobart, delivered in Launceston

Counsel for the Applicant: Ms Wilson

Solicitor for the Applicant: Doan Legal

Counsel for the Respondent: Mr Rothschild

Solicitor for the Respondent: Brendan Rothschild Legal Group
ORDERS

MLC 9955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KHOI

Applicant

AND:
MS KHOI

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

10 JUNE 2022

THE COURT ORDERS THAT:
1.Pursuant to section 128 of the Evidence Act 1995 (Cth) a Certificate issue in regard to the Applicant’s evidence, under cross-examination, given from 11.28 a.m. on 20 May 2022.
2.The matter remain listed for final hearing commencing 21 November 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Khoi & Khoi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TURNBULL

These are ex tempore reasons for judgment.
Mr Khoi, the Applicant, initiated financial proceedings on 8 September 2021 against Ms Khoi, the Respondent. The Applicant seeks interim orders as to disclosure and certain injunctions against the Respondent dealing with property. He has not yet particularised the final orders sought under pt VIIIAB of the Family Law Act 1975 (Cth). The parties disagree as to the jurisdictional…

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 Khoi & Khoi

Details

AGLC: Khoi & Khoi [2022] FedCFamC2F 932
Case: [2022] FedCFamC2F 932
Decision Date

CaseChat Overview and Summary

This case concerns a dispute between Mr Khoi and Ms Khoi regarding a possible de facto relationship and financial proceedings under the Family Law Act 1975 (Cth). The parties disagree as to whether they were in a de facto relationship at any time. The case came before Judge Turnbull for a final hearing on 19 and 20 May 2022 and further adjourned part-heard to a date in November for a further five days. Submissions in relation to a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) were finalised on 8 June 2022. The court was asked to determine whether a certificate should issue in relation to evidence that the Applicant was asked to provide in response to questions under cross-examination regarding a certain Centrelink document. The Applicant's evidence at paragraph 11 of his 17 May 2022 affidavit, and the annexure, provides a reasonable ground to apprehend danger to the witness. It is also arguable that the Applicant was compelled to give the evidence as contained in paragraph 11 of his 17 May 2022 affidavit. The difficulty is, however, that no objection was taken to the provision of that evidence before it was given. The making of an objection to the giving of the evidence is, in my view, fundamental to the operation of s 128. The section starts with the words "This section applies if a witness objects to giving particular evidence". However, a different conclusion was reached by the Full Court of the Family Court of Australia in LGM v CAM. I am mindful that the Full Court is an intermediate Court of Appeal and that, unless I consider it to be plainly wrong, I should follow it. In my respectful opinion, the Full Court was plainly wrong that it was open to the trial judge at any time to grant a certificate notwithstanding that the evidence had already been given. The sequence contemplated in s 128(6) is that there has been an objection, the objection has been overruled, the evidence has then been given and the court then finds that there were reasonable grounds for the objection after all. In other words, if after the evidence is given, it becomes apparent from that evidence that the objection which was overruled should have been upheld, a certificate is given. The operation of the section is predicated on the fact that the evidence, once given, reveals that an earlier objection taken and overruled should have been upheld. It is protection against an incorrect ruling, not against no ruling. As the High Court said in Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at [47]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself." The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. It may be accepted that s 128 is protective in its operation, but that operation is to be determined in accordance with the text of the section. The Applicant's evidence at paragraph 11 of his 17 May 2022 affidavit provides a reasonable ground to apprehend danger to the witness being compelled to give the evidence. The difficulty is that the witness gave the evidence without objection. As such, s 128(1) cannot apply to the Applicant's evidence at paragraph 11 of that affidavit, nor to annexure 6. As a result, a certificate will not issue in relation to that evidence. I am asked by the Applicant, without opposition, to provide a certificate pursuant to s 128 to the evidence to which the Applicant objected giving whilst being cross-examined in relation to his representations made to Centrelink. The questions from Mr Rothschild, in this respect, began at 11:28am on 20 May 2022, on the second day of the hearing. An objection was made by Ms Wilson at the time the questions were being asked. In my view, the evidence the Applicant is asked to provide under cross-examination may incriminate him. As such, there is a reasonable ground for the objection and I will provide a certificate pursuant to s 128 of the Evidence Act 1995 for the Applicant's evidence from 11:28am on 20 May 2022.

Orders