Turner and Brown (No 2) - [2014] FamCA 226

FAMILY COURT OF AUSTRALIA

TURNER & BROWN (NO. 2)

[2014] FamCA 226

FAMILY LAW – EVIDENCE – where the respondent and witness make an application in respect of s 128 of the Evidence Act 1995 (Cth) – certificates granted.

Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth) ss 128, 132
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Turner

RESPONDENT:

Ms Brown

INDEPENDENT CHILDREN’S LAWYER:

T J Mulvany

FILE NUMBER:

MLC

4102

2009

DATE DELIVERED:

3 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

3 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Benjamin

SOLICITOR FOR THE APPLICANT:

Berry Family Law

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

T J Mulvany

Orders

Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the respondent in relation to the evidence given willingly by her contained in her affidavit filed 25 February 2014 and any further evidence she gives during the proceeding and any question she asks of witnesses as that evidence may tend to prove that she has committed an offence against or arising under Australian law.
Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the witness, Ms A, in relation to the evidence given willingly by her in cross-examination and re-examination this day as that evidence may tend to prove that she has committed an offence against or arising under Australian law.

AND THE COURT NOTES THAT

It is noted that both Certificates do not apply to a criminal proceeding in respect of the falsity of the evidence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Brown (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 4102 of 2009

Mr Turner

Applicant

And

Ms Brown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

An issue has been raised in relation to the giving of evidence in the current proceedings before me, which concern the parenting arrangements for the three children of the relationship B, aged nine years, J, aged six years, and T, aged three years.
Both the respondent and a witness for the applicant have objected to the giving of evidence which may subject them to prosecution, particularly pursuant to the Crimes Act 1914 (Cth). The respondent mother and the witness both make an oral application under s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in connection with the giving of evidence on the ground that the evidence may tend to prove that they have committed an offence under an Australian law or are liable to a civil penalty

The respondent mother

Pursuant to s 132 of the Evidence Act, I have brought to the respondent’s, Ms Brown’s, attention last Friday that there may be grounds for her making…

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.

Continue reading Turner and Brown (No 2)

Details

AGLC: Turner and Brown (No 2) [2014] FamCA 226
Case: [2014] FamCA 226
Decision Date: 3 March 2014

CaseChat Overview and Summary

In *Turner and Brown (No 2)*, the respondent and a witness, Ms A, applied for certificates under section 128 of the *Evidence Act 1995* (Cth). The proceedings concerned family law matters.

The central legal issue before the court was whether to grant certificates to the respondent and Ms A under section 128 of the *Evidence Act 1995* (Cth). This section provides protection against self-incrimination for evidence given willingly by a person that might tend to prove they have committed an offence against or arising under Australian law.

The court determined that certificates should be granted to both the respondent and Ms A. The respondent received a certificate in relation to the evidence contained in her affidavit filed on 25 February 2014, as well as any further evidence she might give and any questions she might ask of witnesses. Similarly, Ms A received a certificate concerning her evidence given willingly during cross-examination and re-examination on the day of the hearing.

The court ordered that pursuant to section 128 of the *Evidence Act 1995* (Cth), a certificate be given to the respondent and to the witness, Ms A, in relation to their respective evidence, as that evidence may tend to prove that they have committed an offence against or arising under Australian law.

Orders

Orders of the court

Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the respondent in relation to the evidence given willingly by her contained in her affidavit filed 25 February 2014 and any further evidence she gives during the proceeding and any question she asks of witnesses as that evidence may tend to prove that she has committed an offence against or arising under Australian law.

Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the witness, Ms A, in relation to the evidence given willingly by her in cross-examination and re-examination this day as that evidence may tend to prove that she has committed an offence against or arising under Australian law.

AND THE COURT NOTES THAT

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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