PEREIRA & GANGUMI

[2018] FamCA 615

FAMILY COURT OF AUSTRALIA

PEREIRA & GANGUMI [2018] FamCA 615

FAMILY LAW – EVIDENCE – where the applicant sought a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) – basis for issuing s128 certificate not arising until witness is compelled to answer the questions or to give the evidence – application refused.

Evidence Act 1995 (Cth) s 128

Field & Kingston [2018] FamCAFC 145

APPLICANT: Mr Pereira

RESPONDENT: Ms Gangumi

FILE NUMBER: CAC 1057 of 2018

DATE DELIVERED: 13 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robb & Associates

SOLICITOR FOR THE RESPONDENT: No attendance

Orders

1. The application for a s 128 certificate is refused.

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 Pereira & Gangumi 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 CANBERRA

FILE NUMBER: CAC 1057 of 2018

Mr Pereira

Applicant

And

Ms Gangumi

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. An Initiating Application has been filed by the husband seeking a declaration of nullity of marriage between himself and the respondent, being a marriage which took place in 2013. 

2. He has filed no affidavit supportive of that primary relief, although he has filed an affidavit in support of the interlocutory relief that he seeks.

3. That interlocutory relief sought by him is the issue of a s 128 certificate such that a further affidavit might be filed then in support of his primary application. The occasion for the issue of a s 128 certificate has not yet arisen. It is a condition precedent to the issue of such a certificate that there is compulsion of the witness to answer the questions or to give the evidence. Until a witness is compelled either in cross-examination, examination in chief, or to make provision of an affidavit, s 128 does not come into play. See, for example, the recent Full Court decision of Field & Kingston [2018] FamCAFC 145. That is, absent compulsion, a s 128 certificate is not available.

4. For that reason the application for a s 128 certificate is refused. I note, however, that is no bar to a further application being made should compulsion arise to file the material.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 August 2018.

Associate: 

Date:  14 August 2018