Self-Incrimination in the Family Court: What is a S128 Certificate?
SELF-INCRIMINATION DEFINITION: It is where a person is not required to answer any question or produce any document if the answer or the document could expose the person to conviction for a crime.
FAMILY COURT JURISDICTION: S128 Evidence Act 1995 (Cth) (EA) provides that,
“A witness may object to giving particular evidence or evidence on a particular matter on the ground that the evidence may tend to prove that the witness:
Has committed an offence against or arising under Australian law or the law of a foreign country; or
Is liable to a civil penalty.”
FAMILY COURT CONTEXT: S128 EA provides that a party may give evidence where s79 (in a marriage) or s90SM (in a de facto relationship) of the Family Law Act 1975 (Cth) require disclosures in financial matters and it cannot be used against that party.
PRACTICAL APPLICATION: When a witness is compelled to answer a question in the Family Court or be guilty of not providing financial disclosure, he or she may have to make admissions that authorities such as the Tax Office or Public Prosecution may wish to pursue. If the witness seeks and is granted a S128 Certificate, then the admission cannot be used against the witness in any subsequent proceedings in another court. It is therefore a form of protection against self-incrimination.
CIRCUMSTANCES WHERE S128 ARISES IN FAMILY LAW
Affidavit and Evidence: The Family Law Rules will require that you provide full financial disclosure or be in contempt of Court. You will therefore have to include the material in your evidence and it may form part of your Affidavit material. However, case law confirms that the Affidavit will not become part of your evidence until they are relied upon by the party at a Hearing.
During Cross-examination: Situations may arise where a client who is unfamiliar with the Court system, such as a self-represented party, may not understand the full implications of some of the answers he or she is giving in response to questioning in Court. Again, case law confirms that if a S128 Certificate is granted, it may be retrospective so that it can protect that witness.
PROCEDURE
In order to seek and to be granted a S128 Certificate by the presiding Judge, you must confirm that:
The party must object to giving evidence;
There must be reasonable grounds for the objection;
The party will give evidence relying on a S128 Certificate;
The evidence is incriminating; and
The interests of justice require the witness to give evidence.
You or your legal representative file an application in a case with a supporting affidavit which outlines the situation.
The Court then determines whether reasonable grounds exist to grant a certificate such as a Financial Statement which adverts to Tax misappropriation.
PRIVILEGE IS NOT ABSOLUTE
Case law confirms that s128 Certificate is not a “golden ticket” and judges have referred parties to the appropriate authorities for criminal conduct such as misappropriating funds and obtaining a benefit for that.
The Family Court offers the protection of a S128 Certificate against self-incrimination but it is not absolute.
The critical element is TIMING: OBTAIN THE CERTIFICATE BEFORE GIVING EVIDENCE
Before signing and filing the Affidavit that you will rely on.
If you are giving evidence in chief, get your legal representative to adjourn the matter and obtain a certificate from the Judge before you give the evidence relevant to the possible difficulties.
CONCLUSION
Each case is decided on its own facts and circumstances. It is important that if you are concerned that financial disclosure in your matter may expose you to potential conflicts, that you seek legal advice: this may involve advice from tax experts as well as family lawyers.
If you need assistance in your family law property case in such circumstances, please do not hesitate to contact us so that we can advise and assist you accordingly.
Note: This article if for information only and does not constitute legal advice.