Schwaller-Schroeder and Schwaller-Schroeder
[2012] FamCA 1121
FAMILY COURT OF AUSTRALIA
| SCHWALLER-SCHROEDER & SCHWALLER-SCHROEDER | [2012] FamCA 1121 |
| FAMILY LAW – EVIDENCE – Where the wife makes an application for a certificate to issue pursuant to s 128 of the Evidence Act 1995 (Cth) in respect of prospective evidence to be contained in a financial statement and affidavit – whether s 128 extends to evidence given ahead of a trial – where s 128 is protective in nature – where order made issuing certificate in respect of the wife’s financial statement and affidavit of evidence-in-chief. |
| Evidence Act 1995 (Cth) Criminal Code Act 1899 (Qld) |
| Aitken & Murphy [2011] FamCA 785 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Kendling & Kendling and Ors (No. 2) [2008] FamCA 296 LGM & CAM [2011] FamCAFC 195 R v Sorby (1983) 152 CLR 281 Reid v Howard (1995) 184 CLR 1 Song v Ying [2010] NSWCA 237 Western Australia v Bond Corporation Holdings Limited (1992) 37 FCR 150 |
| APPLICANT: | Ms Schwaller-Schroeder |
| RESPONDENT: | Mr Schwaller-Schroeder |
| FILE NUMBER: | BRC | 10372 | of | 2009 |
| DATE DELIVERED: | 18 December 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 18 December 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Sayers |
| SOLICITOR FOR THE APPLICANT: | N R Barbi Solicitors |
| THE RESPONDENT: | Self Represented |
Orders
IT IS ORDERED BY CONSENT THAT
The Applicant wife shall sign all such authorities and any other documents as might be necessary so as to facilitate immediate disclosure of any and all bank statements pertaining to the corporation Schroeder Pty Ltd trading as B Pty Ltd and/or the business B Pty Ltd whether those documents are held by the liquidator, a bank or any other person or financial institution.
IT IS ORDERED THAT
In support of her Initiating Application filed 22 April 2010, the Applicant wife file and serve an Amended Financial Statement and Affidavit of Evidence-in-Chief in support of her Initiating Application, in accordance with Rules 13.04 and 13.05 of the Family Law Rules 2004 (Cth), on or before Friday 1 February 2013.
Pursuant to section 128 of the Evidence Act 1995 (Cth) a Certificate issue in favour of the Applicant wife in relation to the evidence to be given by her in the Amended Financial Statement and Affidavit required by paragraph 2 (two) of these orders insofar as any such evidence pertains to any facts or circumstances in respect of which she claims that the answer might tend to incriminate her.
A sealed copy of the Certificate pursuant to section 128 of the Evidence Act 1975 (Cth) remain on the Court file.
Any Amended Financial Statement or Affidavit filed and served by the Applicant in these section 79 proceedings containing evidence the subject of the section 128 Certificate have attached a sealed copy of the Certificate.
The costs of the Application in a Case filed on 9 November 2012 by the Applicant Wife be reserved to the trial judge.
The issue of a section 128 certificate in favour of the wife in respect of any further hearing of this matter be reserved to the trial judge.
The orders sought in the Response filed by the Respondent Husband on 23 November 2012 be dismissed.
It is certified that this matter is one proper for the attendance of counsel.
IT IS FURTHER ORDERED THAT
The hearing of any questions in respect of trial directions shall be heard at the Directions hearing listed before a Registrar at 10.30am on 26 February 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Schwaller-Schroeder & Schwaller-Schroeder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10372 of 2009
| Ms Schwaller-Schroeder |
Applicant
And
| Mr Schwaller-Schroeder |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By an application in a case filed 9 November 2012, the wife seeks a number of orders, the gravamen of which is the issue of a certificate pursuant to section 128 of the Evidence Act 1995. That application is made in the context of other orders that would see the wife filing material in advance of the final hearing of an application pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Paragraph 1 of the orders sought refers to the filing of a financial statement and affidavit of evidence-in-chief. The terms of the section 128 certificate sought by the wife are also contained in that application as follows:
1.In support of her Initiating Application filed 22 April 2010, the Applicant file and serve an amended Financial Statement and Affidavit of Evidence in Chief in support of her Initiating Application, in accordance with Rules 13.04 and 13.05 of the Family Law Rules 2004 (Cth), on or before Friday, 1 February 2013.
2.Pursuant to section 128 of the Evidence Act 1995 (Cth) a certificate be given to the Applicant in relation to the particular evidence given willingly by her in these section 79 proceedings insofar as that evidence may tend to prove that the Applicant has committed an offence or is liable to a civil penalty pursuant to any State or Commonwealth legislation and only as contained in the amended Financial Statement and Affidavit referred to in Order 1 herein and any further amended Financial Statement and Affidavit of the Applicant in these section 79 proceedings.
3.A sealed copy of the certificate pursuant to section 128 of the Evidence Act 1995 (Cth) remain on the Court file.
4.Any amended Financial Statement or Affidavit filed and served by the Applicant in these section 79 proceedings containing evidence the subject of the section 128 certificate have attached a sealed copy of the Certificate.
5.The Respondent pay the Applicant’s costs of and incidental to the hearing of this Application on an indemnity basis.
6.All extant Applications be otherwise listed for case management and directions before Registrar Stoneham on a date to be fixed.
7.Such further or other orders this Honourable Court may deem appropriate.
The parties to these proceedings separated in about October 2008 and proceedings in respect of, relevantly, settlement of property were filed in
April 2010 in the Federal Magistrates Court. This application is, then, being heard some two and a half years after the initiating application was filed.
The affidavit material filed on behalf of both parties but, in particular, the wife indicates that alleged conduct on the part of the wife is to be the subject of criminal proceedings. She deposes that, on 19 July 2012, she was charged with one count of fraud pursuant to the Criminal Code Act 1899 (Qld) in respect of conduct allegedly committed between February 2008 and September 2008.
The conduct, the subject of that charge, relates to alleged actions in respect of funds that might otherwise be the subject of the proceedings pursuant to
section 79 of the Act in this Court. Thus, those funds, and the criminal charges in relation to those funds, can be seen to be integral to the section 79 proceedings.
In that respect, the husband, who represents himself before me today, asserts that there is, as a result of the wife’s conduct, missing funds such that he says he risks “being left chasing ghosts” in the sense of funds not being available to satisfy any section 79 order that he might obtain.
As can be seen, the events the subject of the fraud charge go back now almost five years. The affidavit filed by the wife also refers to the possibility of further criminal or quasi-criminal actions being taken, for example, by the Australian Securities and Investments Commission.
It is in that context that the application for a section 128 certificate is made.
The self-represented husband has filed a response in which he seeks, effectively, three orders. The first is to oppose the granting of a section 128 certificate. The second is to seek an order for disclosure and the third is, in effect, to seek a stay of any trial of the section 79 proceedings pending the resolution of the criminal proceedings and, perhaps, any further criminal or quasi-criminal proceedings of the type to which I have just referred to.
The second and third of the matters to which I have just referred can, I think, be dealt with briefly.
First, I propose to make an order, effectively by consent, requiring the wife to sign all such documents and authorities as might be necessary so as to facilitate disclosure of documents, and in particular bank statements the subject of the specific concern raised by the husband before me.
The second matter refers to what is sometimes called the “felony-tort rule”. In Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 and, more recently, in Western Australia v Bond Corporation Holdings Limited (1992) 37 FCR 150, French J, as his Honour the Chief Justice of Australia then was, held as follows (at 172):
Consistently with that statement the Court will ordinarily allow proceedings in which its jurisdiction has been properly invoked to progress to trial and determination unless legitimate the interests of the parties and the administration of justice require otherwise. The judgment to be made is essentially normative and requires a balancing of factors of the kind referred to in the judgment of Wootten J [in McMahon v Gould (1982) 7 ACLR 202].
(See, also, Kendling & Kendling and Ors (No. 2) (2008) FamCA 296 at [264] and the cases there cited).
Here, nothing to which the self-represented husband points persuades me that the proceedings currently on foot in this Court should be effectively stayed, or indeed delayed, pending the resolution of the current criminal proceedings or any mooted further proceedings of that nature.
I take particular account of the following matters. These proceedings started some two and a half years ago. They started in the Federal Magistrates Court and there have been some consequent delays. Thirdly, there is no evidence before me as to how long the criminal proceedings might take to reach a resolution (I note that they are yet at the committal mention stage); the affidavit evidence reveals that a committal mention was to take place on 19 November 2012. I can, I think, take judicial notice of the fact that there is likely to be a significant delay before those proceedings are brought to a conclusion.
The husband submits before me that he is concerned that money will be dissipated and that the criminal proceedings will establish matters that might be relevant to the proceedings in this Court. Whilst those matters are plainly enough matters of significant concern to him, it seems to me that neither address the issue of whether the interests of justice require these proceedings to be stayed whilst those other criminal proceedings are dealt with. He is free to raise all such relevant matters as he might in the proceedings in this Court.
There are no factors which persuade me that these proceedings should be stayed or delayed until such time as the current or mooted criminal or quasi-criminal proceedings are concluded.
Section 128 of the Evidence Act provides:
Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
…
(6)The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled; and
(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
As has been the seen the certificate sought by the wife comprises two parts. It is sought in respect of the amended financial statement and affidavit of evidence-in-chief which will be required to be filed by the wife pursuant to the first of the orders to be made by me advancing this matter toward a trial. The second part of it concerns “evidence given willingly by her in these section 79 proceedings…”
I am not persuaded that I should anticipate questions which may or may not be asked, or indeed their content or context, against which the decision to which the requirements of subsections (3) and (4) of section 128 of the Evidence Act are directed and must be made by the Court. That is, in my view, quintessentially within the province of the trial judge who will be versed with the issues and, thus, better able to decide what the interests of justice might require as the section demands.
In that respect, I note that in Aitken & Murphy [2011] FamCA 785, a decision of Young J referred to me by Dr Sayers, counsel for the wife, his Honour, despite granting certificates in respect of affidavit evidence and financial statements to which I make further reference in a moment says at paragraph 130 of the reasons:
It is unnecessary to now extend the coverage of the section 128 certificate to oral evidence given by the applicant … as he has the right to claim privilege under section 128 at the time he gives oral evidence in relation to questions posed to him in examination-in-chief, cross examination and re-examination at the trial of these proceedings …
His Honour, there, with respect, makes, as it seems to me, the same point to which I have just referred.
What I have called the “second component” of the application for the certificate will be dismissed.
The first of the matters sought to be covered by a certificate is, in my view, in a different category. It raises the question of whether any decision can, or should be, made by me sitting in a judicial duty list ahead of the trial.
Dr Sayers has referred the Court to the decision of the Full Court in LGM & CAM [2011] FamCAFC 195. That decision makes the point that section 132 of the Evidence Act places positive obligations upon a court dealing with proceedings. That section provides:
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself … that the witness or party is aware of the effect of that provision.
While casting a specific duty upon the Court that section, as it seems to me, reflects what has been referred to in the authorities as the closely guarded common law protection of the privilege against self-incrimination. The Full Court in LGM & CAM refers to that topic in considering something of the history of the privilege. In particular, their Honours referred to the comments of Deane J in Reid v Howard (1995) 184 CLR 1 at [5]. His Honour, citing R v Sorby (1983) 152 CLR 281, said:
“The privilege against self-incrimination is deeply ingrained in the common law”. It reflects “a cardinal principle” which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or over-ridden by the courts.
(Emphasis added).
Hodgson JA in Song v Ying [2010] NSWCA 237 held at [26]:
In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence …
The decision of the Full Court in LGM & CAM involved, broadly speaking, the privilege against self-incrimination being invoked in the context of protracted proceedings in which a certificate was issued to cover prospective answers given during cross-examination but failed to cover answers given to similar questions at an earlier stage in the hearing. The situation here is, in my view, significantly different. Having said that, however, the Full Court in any event said at [159]:
Section 128 is protective in its operation. It seems to us that answers may at the time of being given appear innocuous but later, in the context of other evidence or answers, take on another complexion that require a warning to be given and a certificate considered. To interpret the section in a way so as to limit the power to grant a certificate only to the point in time at which the condemning evidence is given would be to rob the section of its intent.
The terms of section 128 contemplate, in my view, its operation in the context of proceedings that essentially involve the giving of vive voce evidence and cross-examination in respect of that evidence.
Plainly enough, however, the section is not confined to proceedings of that type. Proceedings in this Court rely upon evidence-in-chief being given ahead of the trial by way of affidavit. The fact that evidence is deposed to ahead of the trial is, in my view, an important circumstance in considering the application of section 128 to any such evidence.
There is a positive requirement upon the parties to litigation in this Court to depose to all such matters as are relevant to the issues live between the parties. Here, Dr Sayers submits, and I agree, that it could not be said that issues lying at the heart of what might broadly be described as alleged fraud will not be at the heart of the section 79 proceedings. Indeed, the husband concedes as much in what he says from the bar table. Accordingly, there is a requirement upon each of the parties, including importantly the wife, to depose to matters which might be the subject of a claim of privilege if that evidence was being given vive voce at a trial.
Accordingly, it seems to me that the provisions of section 128 can be seen, and ought be seen, to apply to evidence given ahead of the trial pursuant to the obligation to provide evidence-in-chief by way of affidavit.
That interpretation of the section, in my view, gives proper weight to the authorities to which I have just referred and to what, for example, Deane J has said about the nature of the privilege within the general context of the law to which I have earlier referred.
The view that I have taken of the section is, respectfully, consistent as it seems to me, with the view taken earlier by Young J in Aitken & Murphy.
In my view the interests of justice require a certificate to be issued pursuant to section 128 in favour of the wife in respect of the evidence contained in her amended financial statement and her affidavit evidence-in-chief which she will be required to file pursuant to the orders that I will make today and I so order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 December 2012.
Associate:
Date: 23 January 2013
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