Paviello and Paviello - [2019] FamCA 735

FAMILY COURT OF AUSTRALIA

PAVIELLO & PAVIELLO

[2019] FamCA 735

FAMILY LAW – EVIDENCE – Whether a section 128 certificate should be issued to a 3^rd party for an affidavit ordered to be filed by him and oral evidence to be given in the proceedings.

Crimes Act 1900 (NSW) s 35
Evidence Act 1995 (Cth) s 128

Field & Kingston [2018] FamCAFC 145
Reid v Howard (1995) 184 CLR 1
Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547
Ross v Internet Wines Pty Ltd (2004)

APPLICANT:

Ms Paviello

FIRST RESPONDENT:

Mr A Paviello

SECOND RESPONDENT:

Mr B Paviello

FILE NUMBER:

SYC

2323

2017

DATE DELIVERED:

17 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

9 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Jordan Djundja Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms Bunn

SOLICITOR FOR THE FIRST RESPONDENT:

Blanchfield Nicholls Partner

COUNSEL FOR THE SECOND RESPONDENT:

Mr Dura

SOLICITOR FOR THE SECOND RESPONDENT:

Parker Law

Orders

The Court certifies under section 128 of the Evidence Act 1995 (Cth) that Affidavit evidence filed in compliance with Order 4 made on 16 May 2019 and oral evidence given in relation to that Affidavit in these proceedings by Mr B Paviello concerning his interest in properties at 1 and 2 D Street, Suburb E and the Paviello Trust and R Trust at the time of proceedings number SYC3563/2014 is covered by a certificate pursuant to section 128(3) and the evidence given is evidence to which section 128(7) of that Act applies.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paviello & Paviello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2323 of 2017

Ms Paviello

Applicant

And

Mr A Paviello

First Respondent

And

Mr B Paviello

Second Respondent

REASONS FOR JUDGMENT

This is an application by the second respondent who has been joined in family law proceedings by his former sister-in-law in proceedings between his brother and sister-in-law.
The second respondent’s application is for a certificate to be issued to him under section 128 of the Evidence Act 1995 (Cth) prior to him filing an Affidavit in and or giving oral evidence.
The certificate he has sought is in the following terms and is attached to his Affidavit:
The court certifies under section 128 of the Evidence Act 1995 (Cth) that Affidavit and oral evidence in these proceedings given by Mr B Paviello in a…

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.

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Details

Case: [2019] FamCA 735
Decision Date: 17 October 2019

CaseChat Overview and Summary

In the matter of *Paviello and Paviello*, Henderson J of the Supreme Court of New South Wales was required to determine whether certain affidavit and oral evidence provided by Mr B Paviello concerning his interests in specific properties and trusts should be covered by a certificate pursuant to section 128(3) of the *Evidence Act 1995* (Cth). The dispute arose in the context of proceedings numbered SYC3563/2014.

The central legal issue before the Court was the application of section 128 of the *Evidence Act 1995* (Cth), specifically whether the evidence given by Mr Paviello regarding his interests in properties at 1 and 2 D Street, Suburb E, and in the Paviello Trust and R Trust, at the time of the earlier proceedings, qualified for a certificate under section 128(3). This section governs the use of evidence that might otherwise be inadmissible due to privilege against self-incrimination.

Henderson J reasoned that the evidence provided by Mr Paviello met the criteria for certification under section 128(3). The Court found that the affidavit evidence filed in compliance with a prior order and the subsequent oral evidence given in relation to that affidavit were indeed covered by the requisite certificate. Consequently, the Court ordered that the evidence given by Mr Paviello was evidence to which section 128(7) of the *Evidence Act 1995* (Cth) applies, meaning it could not be used against him in criminal proceedings, except in limited circumstances.

Orders

Orders of the court

The Court certifies under section 128 of the Evidence Act 1995 (Cth) that Affidavit evidence filed in compliance with Order 4 made on 16 May 2019 and oral evidence given in relation to that Affidavit in these proceedings by Mr B Paviello concerning his interest in properties at 1 and 2 D Street, Suburb E and the Paviello Trust and R Trust at the time of proceedings number SYC3563/2014 is covered by a certificate pursuant to section 128(3) and the evidence given is evidence to which section 128(7) of that Act applies.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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