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)
Family Law Act 1975 (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

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…

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: [2012] FamCA 1121
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Schwaller-Schroeder (the wife) applied for a certificate under section 128 of the Evidence Act 1995 (Cth) in relation to prospective evidence she was to provide in financial statements and affidavits. Mr Schwaller-Schroeder (the husband) was the respondent. The dispute arose within property settlement proceedings under section 79 of the Family Law Act 1975 (Cth), where the wife faced criminal charges for fraud related to funds potentially subject to the property settlement.

The court was required to determine whether section 128 of the Evidence Act 1995 extended to evidence to be given ahead of a trial, specifically in financial statements and affidavits. Additionally, the court considered the husband's application for disclosure of bank statements and his request to stay the property settlement proceedings pending the resolution of the criminal proceedings against the wife.

Murphy J reasoned that while the privilege against self-incrimination is a fundamental common law protection, section 128 of the Evidence Act 1995 provides a statutory framework for its application. The court noted that the wife's criminal charges were integral to the section 79 proceedings and that the husband's concerns about dissipated funds and the relevance of criminal findings were significant. However, the court found no grounds to stay the property settlement proceedings, citing their commencement over two and a half years prior and the uncertainty regarding the duration of the criminal proceedings. The court also distinguished between prospective evidence in filed documents and oral evidence at trial, stating that the latter is best assessed by the trial judge.

The court ordered that the wife sign authorities for the disclosure of bank statements pertaining to Schroeder Pty Ltd. A certificate under section 128 of the Evidence Act 1995 was issued in favour of the wife in respect of the evidence contained in her amended financial statement and affidavit of evidence-in-chief, to the extent that such evidence might tend to incriminate her. The application for a section 128 certificate in relation to any further oral evidence was dismissed, with that matter reserved for the trial judge. The husband's applications for a stay of proceedings were dismissed.

Orders