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Jacky Campbell, November 2015

Privilege against self-incrimination in family law proceedings

Family lawyers often struggle with the timing of when to seek a certificate for their client under s 128 Evidence Act 1995 (Cth). Section 128 deals with the privilege against self-incrimination. A certificate is commonly sought to protect a client from criminal charges, such as for tax or Centrelink fraud. Recent decisions of the Family Court have looked at this issue and the breadth of the protection offered by a certificate.

What does s 128 Evidence Act say?

A claim for protection under the privilege against self-incrimination can be sought under s  128(1):

“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”.

When to apply for a s 128 certificate?

A common view is that the certificate needs to be sought before an affidavit, which includes evidence which may incriminate the witness, is sworn and filed. Once the evidence has been given, it may be too late to apply for a certificate. There is also a view that the certificate can be sought after the affidavit has been sworn but before it has been filed and served. Another view is that it can be granted before the affidavit is relied on, even if it has already been filed and served.

The usual practice to seek the certificate is to apply in one of the following ways:

  1. Apply for a certificate before filing the affidavit. This application can be made orally on, for example, the First Day of Trial; or
  2. File an Application in a Case seeking a certificate. In the client’s affidavit, exclude the evidence which is sought to be covered by a certificate, but set out that the client will seek a certificate with respect to that issue.
  3. Prepare an affidavit which contains the evidence for which the certificate is sought. Serve an unsworn copy of the affidavit or a proof of evidence on the other party’s lawyers and advise that a certificate will be sought at the next available opportunity – such as the commencement of the trial – but before the affidavit containing the material is sworn. If and when the certificate is granted, the client swears the affidavit.

Justice Thornton in Turner & Brown (No.2)[1] referred to Pt 15.2 Family Law Rules 2004 (Cth) which contains a note that the filing of an affidavit does not make that affidavit part of the evidence, and affidavits only become evidence when they are relied upon by a party at a trial. In that case, the trial had started, but the unrepresented respondent mother had not yet started her case when the trial judge recommended that she seek the advice of counsel. After obtaining advice, the respondent sought certificates. Thornton J granted retrospective certificates in relation to affidavits which had already been filed by the respondent.

Thornton J’s warning to the respondent was consistent with the approach required by the Full Court in LGM & CAM [2] which is:

  • Section 132 of the Evidence Act “imposes an active obligation on a trial judge to be alert to circumstances in which an objection to giving the evidence might arise”;
  • “the guidelines concerning litigants appearing in person superimpose duties on trial judges which comfortably encompass obligations of the kind imposed by s 132”.[3]

In LGM & CAM the husband’s lawyer had sought that the certificate granted to the unrepresented wife not be retrospective, although there were pending contravention and contempt applications. The Full Court of the Family Court set aside the trial judge’s orders and the sentence imposed on the wife. The Full Court said that it was open to the trial judge “at any time to grant a certificate notwithstanding that the evidence had already been given”.[4] The Full Court relied on s 128(6) which states:

“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”.

The Full Court said further in relation to the protection granted by s 128 and the retrospectivity of the section:

“Section 128 is protective in its operation. It seems to us that answers may at the time of being given appear innocuous but later, in the context of other evidence or answers, take on another complexion that require a warning to be given and a certificate considered. To interpret the section in a way so as to limit the power to grant a certificate only to the point in time at which the condemning evidence is given would be to rob the section of its intent”.[5]

This appears to be a misinterpretation of s 128(6) which allows a retrospective certificate to be given only when an objection to giving evidence has been previously overruled. In LGM & CAM the wife did not object to giving evidence at an earlier stage.

Can a certificate be granted for evidence-in-chief?

The issue of whether parties can obtain certificates for evidence in chief was considered by Justice Tree in Churchill & Raske.[6] Justice Tree queried whether or not the practice of giving certificates to cover evidence-in-chief was proper and found that the law on the issue was in an unsatisfactory state.

The mother sought a certificate to cover certain evidence which she wanted to give by way of an affidavit which had not yet been filed. The mother had obtained material by accessing the father’s email account without his authority.  Her conduct might have been an offence under      s 478 of the Criminal Code (Cth). Tree J referred to the decision of the Full Court of the Family Court in Ferrall & Blyton[7] as authority for the proposition that a s 128 certificate can be given to cover evidence-in-chief given by a party by way of affidavit. However, he also referred to Cornwell v The Queen[8] where the High Court doubted, without deciding, in the context of criminal proceedings, whether a witness could object to giving evidence when it was part of the material they were attempting to adduce by way of evidence-in-chief from themselves.

The New South Wales Court of Appeal in Song v Ying[9] decided that a witness who was compellable by way of subpoena or other process, may obtain the benefit of a certificate under s 128 by virtue of that compulsion. However, the Court of Appeal considered that when parties gave evidence in answer to questions from their own counsel, the element of compulsion was not present.

Young J in Aitken & Murphy,[10] after analysing the authorities including Ferrall and Cornwell, preferred the reasoning of the New South Wales Court of Appeal in Song v Ying. He found that there was compulsion upon the party who sought the benefit of a s 128 certificate by virtue of the disclosure obligations on parties to proceedings involving the division of property, under s 79 or s 90SM, which require the disclosure of all relevant information and documents.

In Churchill & Reske, because it was a parenting case, Tree J observed that the obligation of disclosure which attached to property matters did not apply. He also noted that when the Full Court of the Family Court looked at the question of the width or breadth of s 128 in Jarvis & Pike[11] and decided that a s 128 certificate could cover evidence-in-chief, it did not refer to CornwellSong v Ying or Aitken & Murphy.

Tree J considered that unless and until the High Court determined that decisions of the Full Court such as Ferrall & Blyton and Jarvis & Pike were incorrect, he was obliged to follow them[12]. If Song v Ying was the correct or preferable approach, Tree J raised the possibility that:

“perhaps statutory reform of s 128 might be necessary, at least in relation to family law proceedings involving children…”.[13]

Although he did not want it to be thought that he did not see merit in s 128 certificates being available to evidence-in-chief in parenting proceedings, Tree J considered that the language of s 128 made it a difficult construction to apply s 128 to evidence-in-chief because of the requirement that the witness “object” to giving evidence.

Is the protection absolute?

The decision by Justice Cronin of Vasilias & Vasilias [14] is a reminder that s 128 does not provide a “golden ticket” to freedom from prosecution. Cronin J said:

“I am left with an unusual dilemma which is that the parties have benefited from the Commonwealth unreasonably, inappropriately and presumably, illegally. I find therefore that directly or otherwise, the parties’ current financial circumstances are such that they have assets which they may not otherwise have but for that inappropriate conduct. Leaving aside any question of criminal conduct and its consequences, I am being asked to divide up the financial resources of the parties including an unquantifiable sum that should not belong to them”.[15]

Cronin J was concerned about the conflict between s 128 and the consequence of a certificate potentially precluding the Commonwealth from recovering in any criminal or civil action. He cited cases confirming that the Court had the power to report an offence to the relevant authorities (e.g Malpas & Malpas[16]), which, in this case was Centrelink.

Cronin J considered whether there were any options available to him, such as to:

  • Quarantine an amount from the pool and direct that it be returned by the parties to Centrelink. Cronin J decided that this was inappropriate as he lacked knowledge of the quantum, including interest and penalties;
  • Adjourn the proceedings to enable the issue to be clarified by the relevant Commonwealth authorities. This was impermissible due to s 128(7)(b) which provides that the evidence in respect of which a certificate has been given “cannot be used against the person”;
  • Report the matter to the relevant authorities in the knowledge that they would be constrained by s 128 in the use it could make of the affidavit.

Cronin J took that last approach and ordered that the Registry Manager refer a copy of the reasons for judgment to the Centrelink Investigations Unit to do the best they could within the constraints imposed by the s 128 certificate.

In this case, Cronin J seemed to regret having granted the s 128 certificate and, although he did not expressly say so, he appeared to be attracted to the approach taken by Young J in HMP Industries Pty Ltd v Robert Graham,[17] where Young J was concerned that the issuing of a s 128 certificate would impede criminal proceedings. Young J said:

“… it seems to me that these orders [in relation to the issuing of a s 128 certificate] should also be brought to the attention of the prosecuting authorities, as it may be they would wish to be heard as to whether it would be better to have no affidavit which might impede the investigation of criminal proceedings. If they take that view then I think that all copies of the affidavit may have to be destroyed. They are not parties to the proceedings, but I think in the public interest I should hear them as amicus curiae”.

Other Family Court judges, such as Watts J in Lambert & Jackson,[18] have taken a broader view than Cronin J. Watts J considered that a s 128 certificate guaranteed a complete and satisfactory remedy. He also felt himself bound by the Full Court in Ferrall and that a certificate was available for evidence-in-chief. His view was that the affidavit should be sworn, but not filed and served, before the certificate was obtained. Until it had been filed, it had not been published.

Conclusion

Due to the uncertainty of the interpretation of s 128, the safest course is probably not to file and serve a sworn affidavit until a certificate has been granted. It is also safer to assume that a certificate cannot be granted with retrospective effect unless an objection to giving evidence without the protection of a certificate has been previously over-ruled.

Lawyers should be wary when applying for a s 128 certificate and give clients appropriate advice. The state of the law is unclear as to the time at which a certificate should be sought, whether it can cover evidence-in-chief (particularly in parenting matters), and the breadth of the protection.

[1]    [2014] FamCA 226

[2]    (2011) FLC 93-481

[3]    at paras 140 and 142

[4]    at para 158

[5]    at para 159

[6]    [2014] FamCA 848

[7]    (2000) FLC 93-054

[8]    [2007] HCA 12; (2007) 231 CLR 260

[9]    [2010] NSWCA 237

[10]    [2011] FamCA 785

[11]    [2013] FamCAFC 196

[12]    at para 9

[13]    at para 12

[14]    [2008] FamCA 34

[15]    at para 60

[16]    (2000) FLC 93-061)

[17]    [1996] NSWSC 371

[18]    [2011] FamCA 275

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Jane Bentley

Senior Associate

University Qualifications

Masters of Applied Law (Family Law), College of Law

Bachelor of Laws, Victoria University

Bachelor of Science, University of Melbourne

Email Jane Bentley

jbentley@fortefamilylawyers.com.au

Other Qualifications

Accredited Family Law Specialist, Law Institute of Victoria

Jane is a Senior Associate at Forte Family Lawyers. Jane is an Accredited Family Law Specialist as a recognised by the Law Institute of Victoria. Accredited Specialists demonstrate superior knowledge, experience and proficiency in their specialist area of law.

Additionally, Jane has undertaken a Masters of Applied Law in Family Law.

Prior to joining the firm, Jane has worked in both the private and community sectors where she worked on both complex parenting and property matters, regularly appeared in the Family Law Courts and through her work at a commercial firm Jane was able to build and enhance her commercial skills. Throughout her career, Jane has worked collaboratively with commercial lawyers providing advice where both family and commercial law intersect, as well as working directly with professionals on family law matters including psychologists, mediators, accountants and financial advisors.

Jane has a wide range of experience in different family law matters including financial agreements, family violence, parenting, IVF issues, matters involving grandparents, Hague Child Abduction Convention, child support, property and spousal maintenance.

Jane prides herself on her ability to communicate effectively with her clients during an emotional and challenging time. Jane builds strong relationships with her clients as she recognises that the legal system can appear complex and daunting and works with her clients to guide them through the process.

Jane is a member of the Courts Practice and the Property and Maintenance Committees of the Law Institute of Victoria which ensures that she is appraised of recent developments in family law and at the Family Law Courts. Jane is also a member of the Family Law Section of the Law Council of Australia.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

Connect on LinkedIn

Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.