Seaton and Seaton

[2018] FamCA 1100

FAMILY COURT OF AUSTRALIA

SEATON & SEATON [2018] FamCA 1100

FAMILY LAW – EVIDENCE – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) – Where parties’ adult son sought a section 128 certificate in relation to evidence provided by way of affidavit – Where affidavit has already been filed – where a section 128 certificate was granted.

APPLICANT: Ms Seaton

RESPONDENT: Mr Seaton

FILE NUMBER: SYC 3756 of 2017

DATE DELIVERED: 6 December 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 6 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ayliffe SC

SOLICITOR FOR THE APPLICANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT: Mr Karras

SOLICITOR FOR THE RESPONDENT: Karras Partners

Orders

1. The Court issues a certificate in favour of Mr B Seaton (a pseudonym but impacting upon him in accordance with his real name) pursuant to s 128 of the Evidence Act 1995 (Cth) to file and serve an affidavit on the legal practitioner for the first respondent and second respondent, on or before 17 December 2018, such affidavit to address a number of issues:-

   (a)the question of the adequacy or otherwise of the list of assets and liabilities contained in the application for consent orders which led to the orders made 11 July 2017 and his part in relation to any issues in that regard; and

   (b)any response or evidence he has in regard to the matters asserted, by the wife, as to the circumstances leading up to the making of the consent orders made 11 July 2017 and as set out the affidavits of Mr C filed 19 November 2018 and the affidavit of the wife filed 23 November 2018.

2. Costs of all parties be reserved.

IT IS DIRECTED

1. A copy of the affidavits be served upon the legal practitioners for the applicant and respondent.

2. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Senior Counsel and Counsel to attend.

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 Seaton & Seaton 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 HOBART

FILE NUMBER: SYC 3756 of 2017

Ms Seaton

Applicant

And

Mr Seaton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Ms Seaton (‘the wife’) and Mr Seaton (‘the husband)’. Those names are pseudonyms in relation to an application to set aside property orders pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act’). The wife has filed an affidavit asserting a number of points upon which she bases her application to set aside consent orders which were made in 2017. She asserts, first, that there has been a gross underestimation of the property of the parties or property controlled by the parties. Second, she asserts that there was a fraud, abuse of process or some other illegal behaviour which gave rise to the consent orders being entered into and from which she now disassociates herself, saying that she had no idea that they were consent orders.

2. That evidence is, of course, wholly untested, and it is not the role of this Court to either at this time to make any findings one way or the other. The parties’ son, Mr B Seaton, and I will use that as a pseudonym, was approached by the wife to give evidence in relation to the events which she says were it given it may assist her case. Mr B Seaton engaged his own legal advisors and indicated to the Court that he would not provide that evidence unless he was compelled to do so, and if he was compelled to do so, he would seek a certificate under s 128 of the Evidence Act 1995 (Cth). He filed an affidavit dated 3 December 2018, but which did not set out any of the evidence which he may have been compelled to give.

3. When the matter came before the Court on the last occasion, which was 27 November 2018, the Court directed the issue of a subpoena. Mr B Seaton attended at Court in response to that subpoena and was represented by learned counsel who made clear the process in place. In this case, it is important that this evidence come before the Court. It may or may not survive cross-examination, and it will, of course, be untested evidence; however, given the significant financial impact on both the husband and the wife in these proceedings, it seems to me that it is appropriate to give justice to both parties that this material be filed. The only way it can legitimately be filed is through the compulsion of the subpoena, and, as such, I intend to issue a certificate under s 128 of the Evidence Act 1995 (Cth).

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 December 2018.

Associate:     

Date:              19 December 2018