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      Fraud, Crime & Misconduct – How the Family Law System can deal with these issues 1024 685 Dorter

      Fraud, Crime & Misconduct – How the Family Law System can deal with these issues

      Most people are aware that family law proceedings are generally protected by a variety of laws and principles to ensure the privacy of the parties. Section 121G of the Family Law Act and the principles such as those set in the matter of Harman v Secretary of State for Home Department [1983] 1 AC 280 respectively confirm that parties to family law proceeding cannot be publicly identified, nor can material produced in the family law proceeding be used for any other extrinsic purpose.

      However, it is important to note that there are exceptions to these rules which can lead to serious consequences for not only litigants to a family law matter, but also the solicitor or barrister representing them.  

      Referral of Parties

      Whilst the privacy of parties is generally protected in family law proceedings, and material produced in such proceedings is not allowed to be used for other purposes, there are occasions where the Court can order that the Court file or transcript (sometimes both) is to be provided to an external body or institution.

      One common circumstance when the Court may make a referral in respect of a party is when the Court becomes aware that one, or both, of the parties has potentially committed a criminal offence which the Court cannot deal with as it does not have jurisdiction.  The Court may therefore order that the Court Registry provide to a government agency, such as the Department of Public Prosecution, the Court file as well as the Court transcript. For example, in the matter of Jsing & Kong [2016] FamCA 288, Justice Forster referred the husband to the Commonwealth Department of Public Prosecution after it was determined that the husband had either willingly or reckless committed an act of bigamy. In that matter, his Honour ordered that a copy of his orders, part of the Court file, and his Honour’s reasons for judgment be provided to the Commonwealth Department of Public Prosecution so that the question as to whether the husband should be prosecuted could be dealt with.

      Another common circumstance where the Court may consider referring a party, is where that party may have committed a fraud against the Commonwealth, usually with respect to taxation or a social security entitlement payment, and an investigation is warranted. For example, in the matter of Owens & Owens [2015] FCCA 2823, Judge Reily referred the matter to Centrelink for investigation of whether the wife had defrauded the Commonwealth by receiving a pension she was not entitled to, and whether an associate of hers has aided and abetted in the potential fraud. In this case, her Honour ordered that the Registrar of the Court refer the matter for investigation and that Centrelink be granted access to any document that they may require to complete their investigation.

      Referral of Legal Practitioners

      It is not just parties that are at risk of being referred by the Court. As Officers of the Court, legal practitioners such as solicitors and barristers can also be referred if the Court believes there are grounds to do so.

      As officers of the Court, solicitors and barristers have obligations to the Court, and when those obligations are not met, the Court can refer the practitioner to their regulatory body, such as the NSW Bar Association or the Office of the Legal Services Commissioner. For example, In the matter of Kamano & Kamano [2015] FamCAFC 111, the Full Court referred a barrister to the Queensland Bar Association for making misleading (and thus false) assertions about the integrity of a judge which was an “abdication of Counsel’s paramount duty to the administration of justice”.

      Solicitors have also not been immune from the Court referring them to a regulatory body. In the matter of Percival & Percival (No 3) [2023] FedCFamC2F 670, Judge Coates referred a solicitor to the Legal Services Commission of Queensland due to the solicitor appearing to file a case which fell short of the standard of competence and diligence that members of the public, including the litigants being represented, were entitled to reasonably expect of a reasonably competent solicitor. Importantly for all practitioners to remember, his Honour noted that it is “not the solicitor’s role to merely repeat any and every allegation that a client gives, the role is to represent them and prepare a case with regard to the particular claim the court has jurisdiction to determine”.

      Whilst there is a degree of protection for parties and practitioners in family law proceedings, it is clear that the Court has the discretion to refer matters to external bodies where a person has not acted as they otherwise should.  It is vital to have an experienced team to assist with your family law matters to anticipate, and then handle, any possible issues which could give rise to a potentially ruinous referral to an external body. If you believe you may be at risk of being referred as a result of your family law proceedings, please contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9100 0633 and we will give you appropriate advice and assist you to resolve your family law proceedings.

        Multiple Jurisdictions 1024 683 Dorter

        Multiple Jurisdictions

        Litigation of issues across multiple jurisdictions involving the same subject matter and parties is becoming increasingly common, particularly in family law. It will often involve a careful analysis of which jurisdiction or Court is preferred and consideration of whether the issues or proceedings can be transferred or consolidated.

        In a family law context it is becoming more common to see third parties, such as Mum or Dad or grandparents, seek repayment of monies they may have advanced to one or both parties or an argument that real estate is held “on trust” for a third party following separation. In these situations a third party may assert certain legal rights to pursue repayment of monies or declarations that the third party is the beneficial owner (real owner) of real estate. What follows is that multiple jurisdictions (or Courts) may have the jurisdiction to decide the issue e.g. Federal Circuit and Family Court of Australia and Supreme Court of New South Wales. Our previous article on “Accrued Jurisdiction” provides an overview on such jurisdiction existing between different Courts and can be found here – What is Jurisdiction and Accrued Jurisdiction?.

        In these circumstances it is necessary to seek specialist advice about:

          1. Which jurisdiction (or Court) may be preferred to determine the issue;

          2. Whether the issue can be cross-vested, or transferred, between jurisdictions (or Courts);

          3. When and how to apply for a transfer of proceedings;

          4. How to deal with different Judicial Officers in different Courts; and

          5. What to do if the transfer does not succeed.

        Dorter Family Lawyers and Mediators specialises in family law disputes that involve multiple areas of jurisdiction and/or multiple Courts. If you require any assistance with the above we can assist.

        This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us on (02) 9929 8840.

        Andrew Johnson
        Partner

        Rebekah Dorter
        Principal

        family-law-property-settlement-australia
          Unsafe at Home 1024 495 Dorter

          Unsafe at Home

          When being at home may not be the safest place …

          As Australia and the world are working tirelessly towards stopping the spread of the Coronavirus by imposing several restrictions on the movements of citizens, those restrictions together with social isolation and economic pressure create a petri dish for an increase in domestic and family violence.

          It has been reported that Google searches on domestic violence have surged by up to 75 percent since the first recorded Coronavirus case. In these difficult times it is important to raise awareness about domestic violence and the support available for victims.

          If you are feeling unsafe at home, there is help available for you – from police, counsellors and lawyers.

          What is domestic violence and family violence?

          Domestic and family violence is an abusive behaviour in which one person seeks to control and coerce another person in a family or domestic relationship.

          It can take many forms and can include:

          • Sexual violence;
          • Psychological violence including intimidation, gaslighting, threatening, verbal abuse;
          • Coercive and controlling behaviour;
          • Social violence such as controlling or limiting social activities, isolating a partner from family or friends;
          • Financial and economic abuse;
          • Abuse based on spiritual views.

          What relationships are considered “domestic”?

          • Intimate relationships: husband and wife, de facto partners, boyfriend and girlfriend, same sex relationships;
          • Family relationships: older parents and their children, other family members including step-parents; and
          • Other relationships: such as person with a disability and their carer.

          How can you be protected – what is an Apprehended Domestic Violence Order?

          An Apprehended Domestic Violence Order (ADVO) is an order made by the Court against a person (referred as defendant) in order to protect you from future abuse. An ADVO can be adapted to your particular circumstances to provide you with the best possible protection from violence and also extends to other persons with whom you have a domestic relationship, such as your children or a new partner. If a defendant disobeys the orders in an ADVO it can lead to criminal charges.

          How can I apply for an ADVO?

          1. Police can apply for an ADVO on your behalf. Many police stations have designated Domestic Violence Liaison Officers who can assist you with the application;
          2. A lawyer can apply for an ADVO on your behalf; and
          3. You can also make an application at your local court.

          What if you need immediate protection?

          If you need immediate protection the police can apply for a provisional or interim ADVO for your protection which will last until it is revoked or until an interim or final order is made.

          Importance of safety planning

          If you are experiencing domestic violence or family violence it is crucial that you have a safety plan in place. It is helpful to seek help from a professional such as a counsellor in preparing your safety plan. Safety planning is about taking control over your life and taking proactive steps towards living life without fearing for your and your children’s safety.

          Some things to consider when preparing your safety plan

          1. Identify a ‘safe room’ in your home where you can wait for the arrival of the police. If the room cannot be locked, consider installing a lock to make it more secure.
          2. The most dangerous rooms at your home are the rooms where the person who is violent has access to weapons such as the kitchen or the bathroom. If you sense that your partner could become violent remove yourself from the ‘dangerous areas’.
          3. Prepare an escape plan and an ‘escape bag’ with a few essential belongings and the most important documents and hide it in a safe place.
          4. Have a second phone (if possible) hidden and fully charged and ensure that your safe room has sufficient phone coverage.
          5. Teach your children how to call the police and how to give their full name and address.
          6. Have a ‘code word’ you can use on the phone without attracting attention and let your friends and family know that the word means that you are feeling unsafe.
          7. Keep your friends and family informed about your circumstances.

          Domestic Violence and Family Violence Services

          For more help and support please visit:

          Are you experiencing domestic violence in your home?

          We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators, family lawyers based in North Sydney and McMahons Point, on (02) 9929 8840 or book online here for a confidential discussion.

          Tim Russell

          Solicitor

          Rebekah Dorter 

          Principal

          This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.