Wickham & Baker
[2015] FamCA 1077
•3 December 2015
FAMILY COURT OF AUSTRALIA
| WICKHAM & BAKER AND ANOR | [2015] FamCA 1077 |
FAMILY LAW – EVIDENCE – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) – where the Applicant sought a section 128 certificate in relation to evidence provided by way of affidavit – where the affidavit had already been filed – where leave was given to both the Applicant and the First Respondent to uplift affidavits already filed – where a section 128 certificate was granted in relation to the filing of future affidavit material
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975(Cth) |
Parentage Act2004 (ACT) s 41, 45
Ferral v Blyton [2000] FamCA 1442
| APPLICANT: | Ms Wickham |
| RESPONDENT: | Mr Baker |
| SECOND RESPONDENT: | Ms Maneerattana |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid, ACT |
| FILE NUMBER: | MLC | 6263 | of | 2015 |
| DATE DELIVERED: | 3 December 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 25 November 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Burgess |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wickham & Baker and Anor 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 CANBERRA |
FILE NUMBER: MLC6263 of 2015
| Ms Wickham |
Applicant
And
| Mr Baker |
Respondent
And
Ms Maneerattana
Second Respondent
REASONS FOR JUDGMENT
These are proceedings relating to a surrogacy arrangement which was conducted in Country D as a consequence of which B, born in 2014, was conceived with the genetic material from the Applicant and the First Respondent. The material was implanted into the Second Respondent who carried the baby to term. Subsequent upon his birth the child was brought to Australia and apparently granted Australian citizenship presumably on the basis of descent.
Pursuant to the Parentage Act 2004 (ACT) for parties to enter into a commercial surrogacy agreement is illegal.[1] This extends to those persons who are ordinarily resident in the Australian Capital Territory (ACT) who enter into an agreement wherever it may be in the world.[2]
[1] Section 41.
[2] Section 45.
A number of issues have now arisen but at least in part there is the potential that either or both of the Applicant or the First Respondent might be charged with an offence under the Parentage Act 2004 (ACT).
During the course of a preliminary directions hearing Dr C, on behalf of the Applicant, raised the issue of whether I might grant a Certificate under s 128 of the Evidence Act 1995 (Cth) in respect of any evidence that might be given by her client (and a similar concern was expressed by the First Respondent) which might tend to incriminate her or him in relation to a breach of s 41 of the Parentage Act 2004 (ACT).
The terms of s 128 of the Evidence Act1995 (Cth) are as follows:
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.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(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.
(7) In any proceeding in an Australian court:
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.
(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue; or
(b) had a state of mind the existence of which is a fact in issue.
(11) A reference in this section to doing an act includes a reference to failing to act.
(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
(13) The following are prescribed State or Territory provisions for the purposes of subsection (12):
(a) section 128 of the Evidence Act 1995 of New South Wales;
(b) a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (12).
(14) Subsection (12) applies to:
(a) a proceeding in relation to which this Act applies because of section 4; and
(b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a).
Section 128(1) seems to be predicated on a sequence of events. The section requires that a witness must object to the giving of particular evidence because it may “tend to prove that the witness has committed an offence…”.
Section 128(3) provides that the Court must then determine whether or not there are reasonable grounds for the objection. If the Court determines that there are reasonable grounds the Court will give a Certificate if
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4)…
Once the Certificate has been given, neither the evidence itself nor any information, document or thing obtained as a direct or indirect consequence of a person having given evidence can be used against the person (s 128(7)).
The reason for the Applicant and the First Respondent seeking such a Certificate is fairly obvious.
However, the situation is somewhat complicated by the fact that the Applicant has in an affidavit filed on 6 July 2015 made reference to entering into an agreement which might upon investigation prove to be a commercial surrogacy agreement.
In an affidavit filed on the same day the First Respondent agreed with what had been said by the Applicant.
Neither affidavit at this point has been relied upon in final proceedings and has not in that sense formally been received into evidence.
For reasons which will become apparent I propose to grant leave to each of the Applicant and the First Respondent to withdraw their existing affidavit and to replace it with another, subject to the matters set out below in relation to a Certificate under s 128 of the Evidence Act 1995 (Cth).
No provision occurs in the Act permitting a party to in effect seek a Certificate and to only give evidence if the Certificate is forthcoming.
The sequence contemplated by the Act appears to be an objection taken, a determination as to the reasonable grounds for the objection, a determination as to whether or not the witness might be obliged to give evidence in accordance with s 128(4) and then the issuing of a Certificate.
The process would not seemingly allow, on its face, the granting of a Certificate in respect of evidence that had been given prior to the objection having been taken or indeed retrospectively generally. In other words, although the oral application made with leave by Dr C was for a Certificate in relation to the material already filed and any evidence that had been given to that point there does not appear on the face of it to be a basis upon which a Certificate could so be granted given the wording of s 128.
However, s 128(6) contemplates a situation where after an objection has been overruled, if the judge decides that there are reasonable grounds for the objection, a certificate must be given which it seems would have retrospective effect. It is however predicated on the jurisdiction sequence set out above which requires an “objection” as the starting point.
Indeed the section seems to be principally directed to oral evidence and the ordinary course of a trial. Notwithstanding that, the word objection is not necessarily in my opinion, to be understood as a formal objection made on behalf of a party or a witness by his or her counsel. The fact that the witness, himself or herself, is referred to as objecting to giving particular evidence suggests that it is the word “object” is given its ordinary meaning of someone expressing an opposition to something.
In family law proceedings where there is an obligation at law to make a full and frank disclosure and certainly to convey to the Court any matters that might bear upon a decision in a case involving children and as to the best interests of the children, frequently the relevant information will be contained in an affidavit filed before there would be an opportunity for any formal objection to be taken.
It seems to me that the appropriate way to proceed in such matters would be for the application to be filed and then an application made before the filing of any affidavit which raised the proposition that the Applicant (and subsequently the Respondent perhaps) would wish to object to the giving of evidence in relation to some matter that may be otherwise disclosable on the grounds that the giving of such evidence might tend to prove that the party had committed an offence.[3] I propose to follow that procedure in this matter.
[3] See Ferral v Blyton [2000] FamCA 1442, 39[89]-[90].
To enable that situation to be achieved, however, the existing affidavits, at least so far as they relate to the Applicant and the First Respondent, should be withdrawn and fresh material filed in an appropriate form in due course after any issue relating to self-incrimination has been resolved and potentially a Certificate granted under s 128.
In respect of the issue of whether a witness might be compelled to give evidence (under the umbrella of a Certificate) as was contemplated by s 128(4) I draw attention to the provisions of s 128(4)(a) which requires the Court to be satisfied that the evidence “does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty, under a law of a foreign country”. This provision has a common sense basis to it in that any Certificate granted by an Australian court to provide immunity from prosecution as a result of the evidence the subject of the Certificate could not be binding on a foreign court. In most cases where the only possible offence would occur within Australia this would not constitute a problem.
However, in a matter such as this, if the act of surrogacy occurred in Country D and that was, in whatever form it was undertaken, an offence in accordance with the law of Country D then it would seem that the Court loses, under s 128(4), the power to compel the witness to give the evidence with the benefit of a Certificate. The removal of the power of compulsion on the part of the Court would not however prevent a party (or a witness) from determining that he or she would give such evidence voluntarily in any event and if that were to occur then a Certificate would be granted in any event under s 128(3).
It remains questionable whether a party having made objection declines to give evidence might be the subject of adverse inference as to that failure to give evidence from the trial judge.
While I doubt the power of the Court to give a Certificate which would operate retrospectively in respect of evidence already given because of the wording of the Act and the apparently sequential nature of the steps to be undertaken, if the course of action that I have suggested above is followed then the opportunity to object prospectively will be restored.
It is unfortunate that the drafting of s 128 while following what would seem to be logical steps in the course of an ordinary hearing may have perhaps inadvertently (or perhaps not) imposed jurisdictional barriers in respect of evidence given without the preliminary steps set out in the Act being undertaken. It would be significantly unfortunate if a failure to follow the relevant procedural steps resulted in the invalidation of the Certificate and consequential exposure of the deponent to criminal charges on his or her own evidence.
I propose therefore to follow the steps set out above.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 3 December.
Associate:
Date: 3 December 2015
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