Perjury cases are rare in family law in Australia. Experts say courts need to be better at cracking down on lying
In the family court several years ago, a man wove a web of deceit. He forged bank records and other documents in a lie that would later unravel.
He had launched a case seeking property orders after splitting with his partner.
He later made claims to the court, backed up by documents, about when he sold his business. The claims were strongly in his favour.
But after the original documents were sought, the judge discovered the man had lied, altering dates on bank documents and lying about other matters. The man's deceit was referred to police and he was charged with giving false testimony and fabricating evidence in court. The man was subsequently sentenced to more than a year in jail in a state court.
Prosecutions for perjury – when someone lies under oath to the court – are 'extremely rare' in family court cases, experts say. One lawyer says she hopes the above case will deter people from being deceptive in court in the future.
But experts say courts need to be better at cracking down on people who bend the truth for personal gain – and refer cases to police when perjury is suspected, especially in domestic and family violence matters.
Vivian Galanis, the managing principal solicitor at Wallumatta Legal, says perjury before the family court often involves selective disclosure, omissions or inconsistencies that can be difficult to untangle.
'In my experience, dishonesty often comes up around financial disclosure where one party may downplay assets, debts or income,' she says.
'It's hard to say how often perjury actually happens because unless the other party has the means to investigate and contradict the evidence, it tends to go unchallenged.'
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The family court can't investigate perjury allegations – they need to be referred to the Australian federal police, and someone found guilty faces up to five years in prison.
But there are other powers available to the family court if a judge suspects a party hasn't met their obligation of making a 'full and frank' disclosure, such as the judge awarding a greater share of the assets to the person they believe has told the truth. They can also allow certain documents to be subpoenaed.
Galanis said even when there is a strong suspicion of dishonesty, formal referrals to police are extremely rare in the case of family court cases, and prosecutions for perjury rarer still.
From 2014 to 2019, there were no court referrals to investigate potential perjury offences in the family court, according to a 2021 government report on the family law system. There were no prosecutions for perjury in relation to family court cases during that time.
The same report stated that many submissions to the review suggested there needed to be tougher penalties for false allegations or providing false evidence. But while the report noted concerns about perjury in family court cases were widespread, it said actual cases were relatively rare.
However, Justin Dowd, who is now semi-retired after working in family law for 50 years, says: 'I think sadly the court has, over time, become immune, if not to people telling outright lies, then certainly bending the truth to advance their case.
'Various times when people have lied to the court, particularly by underestimating their finances, the court had penalised them financially, but not referred it on.'
Dowd says even if it is referred, it doesn't mean the AFP will investigate. Sometimes, there are other higher priority investigations.
Resourcing was raised as an issue in the judgment for the man convicted of perjury over his family court case. The investigation began several years after it was referred to the police by the court. The federal police said the delay was due to the pandemic and the redirection of resources.
The judge considered the impact on his family when sentencing the man after receiving character references from other people.
Galanis says dishonesty in the family court is a particular issue for women who have experienced coercive control or financial abuse.
'The family law process can become another battleground,' she says.
'When an ex-partner continues to lie, hide assets or withholds information, it doesn't just undermine the legal process, it re-traumatises, reinforcing the same dynamics of power and control they have fought so hard to escape.
'These clients are often faced with a difficult choice: whether to invest more time, money, and emotional energy in uncovering financial dishonesty, or to accept an outcome that may be incomplete, but allows them to move on. It's a compromise no one should be forced to make, but many do.'
Jess de Vries, director of legal services at Women's Legal Service Victoria, agrees that alleged perpetrators can manipulate the system to their advantage.
'We need the court to be relying on their enforcement mechanisms,' she says. 'We also need to know where there are real concerns about potential perjury, that it is referred to the AFP.'
A woman currently involved in an asset dispute before the family court told Guardian Australia that she suspects her former partner is not being upfront about his earnings – and alleges this is a continuation of his controlling behaviour.
She alleges he claimed in court he has not earned any money since they separated two years ago. However, due to being familiar with the nature of his work as a 'successful businessman' from the time they were together, she doesn't think that can be true. 'The narrative doesn't make sense,' she says.
Getting to the bottom of such disputes can be costly – it can cost thousands of dollars to get financial records subpoenaed.
On Tuesday, there were changes to the Family Law Act so that the duty of separating couples to disclose their finances now falls under that law. Before this, it sat under rules that guide how family law policies are applied.
But de Vries is uncertain about how much of a difference this will make.
'The nature of the duty of financial disclosure will not change, and the consequences for non-compliance have not been updated as part of the amendments,' she says.
She thinks the perjury case outlined above could have consequences, though.
'People are clearer on what the impacts can be if they perjure themselves, and that it can mean prison.'
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