+61 2 9929 8840

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

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

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

      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.