Seaton and Seaton (No. 2) - [2018] FamCA 1101

FAMILY COURT OF AUSTRALIA

SEATON & SEATON (NO. 2)

[2018] FamCA 1101

FAMILY LAW – PRACTICE AND PROCEDURE – Leave granted for a subpoena to issue – Wife’s application adjourned to a fixed date – Orders and directions made for the filing of affidavit material.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Song & Ying [2010] NSWCA 237

APPLICANT:

Ms Seaton

RESPONDENT:

Mr Seaton

FILE NUMBER:

SYC

3756

2017

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

27 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ayliffe SC

SOLICITOR FOR THE APPLICANT:

C Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Karras Lawyers

Orders

These proceedings be adjourned to 9.30 am on Thursday 6 December 2018 at Hobart.
Leave be granted for the wife to cause a subpoena to be issued directly to Mr B Seaton requiring him to attend court to give evidence at 9.30 am on Thursday 6 December 2018 at the Hobart Registry of the Family Court.
Leave be given for the solicitor for the respondent husband to attend by video-link from Sydney to Hobart on 6 December 2018.
Four (4) days prior to 6 December 2018 Mr B Seaton make, file and serve any affidavit upon which he wishes to rely in support of any application that he intends to make for:-
(a)the granting of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth); and
(b)a direction that his evidence in chief be given by affidavit which he is to make, file and serve on or before 18 December 2018.
Costs of both parties be reserved.
BY CONSENT order 5 made 21 November 2018 be varied that the husband make, file and serve a Response to the applicant’s Notice of Facts, Issues and Contentions within forty eight (48) hours of the date that the affidavit of Mr B Seaton is filed and served or 19 December 2018, whichever is the later.

IT IS DIRECTED

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

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior 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 (No. 2) 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 3756 of 2017

Ms Seaton

And

Mr Seaton

EX TEMPORE REASONS FOR JUDGMENT

An application was filed by the wife on 19 November 2018 in response to an application in a case filed by the husband on 21 September 2018. In that response the wife seeks orders:-
(a)that a subpoena issued to a son of the parties requiring him to attend court in a proximate date;
(b)that seven days prior to that date, the parties’ son file and serve any affidavit on which he wishes to rely in support of any application he intends to make for the granting of a certificate under s 128 of the Evidence Act 1995 (Cth); and
(c)a direction that his evidence-in-chief be given by affidavit which he is to make, file and serve before 18 December 2018.
What does all this mean? What is agreed between the husband and wife in this case is that they have been married for a long time, that there is a considerable amount of money involved, and that a consent order was made in the Sydney Registry of the Family Court. It is not an issue that the wife has applied under s 79A of the Family Law Act 1975 (Cth) for an order setting aside that consent order.
In support of that application, the wife has filed a Notice of Facts Issues and Contentions, which is attached to her Response to an Application in a Case. In that she complains that the consent order was obtained by the misleading and deceptive conduct of the husband and/or one or other members of the family. She sets that out in that document.
The wife has now filed an affidavit on 23 November 2018 providing the facts upon which she asserts the matters contained in the Notice of Facts, Issues and Contentions. She asserts, albeit some of it by way of hearsay, that steps were taken to conceal from her the nature and effect of the consent orders. I do not intend to make any findings or make any further comments in relation to those except to note that they are there.
The wife also relies upon an affidavit of her solicitor, Mr C, who provides evidence in the form of an exchange of correspondence between his office on behalf of the wife, and the office of another practitioner in Tasmania who acts for the parties’ adult son, requesting information, and that correspondence notes that the parties’ adult son is unwilling to give the information unless he is protected by a certificate under s 128 of the Evidence Act 1995 (Cth).
And his solicitor sets out in a letter annexed to Mr C’s affidavit a process which she believes would offer her client protection in the event that he is compelled to provide evidence. The reason the wife wants the evidence made available now is, according to her senior counsel, twofold: first, to provide some support for her overall claim, and with a view, to bring about a consent to the setting aside of the orders, and; second, a contention, particularly having regard to paragraphs 75 to 79 of the wife’s affidavit, to remove the pressure from the parties’ son in terms of giving that affidavit, of him being caught, according to counsel, in the vernacular, somewhere between a rock and a hard place.
I will now address the two mechanical issues. First, this Court last week made orders anonymising the name of these proceedings as publication of the parties’ name in a court list in Tasmania would readily identify the parties and; second, the wife swore the affidavit in the anonymised name where, whilst the parties’ names remained anonymised, it seems to me that if a party swears an affidavit, it should be in their own name rather than in an anonymised form.
Mr Schonell SC who represents the husband indicated today that he would not take any technical objection in relation to that matter. The problem with s 128 of the Evidence Act 1995 (Cth) insofar as the family law jurisdiction is concerned has been a long time coming. The Full Court of the Family Court in Ferrall and McTaggart (As Trustees for the Sapphire Trust) & Ors v Blyton; (2000) FLC 93-054, provided two bases in relation to the issue of s 128 certificate: First, that it could apply in relation to evidence-in-chief, and second, that it required no compulsion, simply a request saying, “I want the information and I would like the certificate, please.” That has been the subject of some criticism, not the least in the recent decision of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2018) FCAFC 4, where it concluded that the decision in Ferrall (supra) could not be accepted as being correct.
It did not, as I understand it, impeach Ferrall (supra) in terms of evidence-in-chief as distinct from evidence in cross-examination. The criticism was that there needed to be some compulsion. That criticism reflected concerns raised by Young J in Aitken & Murphy [2011] FamCA 785 and reflected again in a decision of Tree J in Churchill & Raske [2014] FamCA 848.
Both Young and Tree JJ approved of the reasoning of the New South Wales Court of Appeal in Song & Ying [2010] NSWCA 237 where that court agreed at paragraph 20:-
20. Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give.
I note that Tree J observed at paragraph 4 in his decision of Churchill & Raske (supra) that Song was plainly correct and should be followed, and went on to make some other comments. As luck would have it, the Full Court of the Family Court had occasion to revisit the jurisprudence in Ferrall (supra) in the recent decision of Field & Kingston (2018) FamCAFC 145, and they adopted the reasoning of the Federal Court’s Full Court decision in Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (supra), and that’s where the circumstances lie at the present time.
The process which is sought to be put in place by the wife at this time seems to fit in with the logic contained in those cases, and in particular, the approach adopted by the Supreme Court of New South Wales in Ross v Internet Wines Proprietary Limited & Ors (2004) NSWCA 195, particularly paragraphs 81 onwards to which I have had regard.
There is, in my view, no doubt that this Court can order that affidavit material be filed at any particular time, provided there is some sound and just reason for doing so and provided that it does not give rise to procedural unfairness to one party or another. Mr Ayliffe quoted a number of rules and I have had regard to those, in particular, having regard to the power to make such rules in those circumstances under s 128 of the Evidence Act 1995 (Cth). Further, the Court must have inherent power to control its own processes and ensure that affidavits can be filed at appropriate times. An example of that may be where a witness was unwell and not likely to survive or something along those lines.
In this case there are sensible reasons for that witness to be required to give evidence sooner rather than later, and I adopt the submissions of Mr Ayliffe SC in that respect.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 November 2018.

Associate:

Date: 19 December 2018