Family Court bungle hits de factos as error throws property settlements into doubt
Thousands of Family Court orders relating to de facto couples, including property settlements and maintenance agreements, have been cast into doubt by a major federal government blunder.
The government neglected in 2009 to arrange for the Governor-General to proclaim a start date for legislation that handed power to the Family Court to handle property and maintenance disputes between de facto couples. The mistake, which Attorney-General Nicola Roxon last night labelled an “unfortunate administrative error”, means all such property and maintenance orders by the Family Court and Federal Magistrates Court between March 2009 and February 11 this year are now uncertain.
Ms Roxon said the government was working to fix the issue as soon as possible, but the opposition seized on the blunder as an “astonishing act of incompetence” that reinforced the view that the government could not get anything right.
Previously, heterosexual and same-sex de facto couples had their property matters dealt with by the state courts.
In 2009, the states referred their powers to the commonwealth, for the first time enabling de facto couples to have their property disputes dealt with by the Family Court as married couples do. However, no start date for the proclamation was arranged.
It is understood this oversight occurred within the Attorney-General’s Department, when Robert McClelland was attorney-general. This meant the changes failed to begin.
The result is that since 2009 the Family Court has been making orders relating to de facto couples for which it had no jurisdiction.
Ms Roxon said she had directed her department to put its full attention to fixing the problem as quickly as possible. “This is a very unfortunate administrative error where a small mistake can have extensive consequences,” she said.
The blunder was detected only earlier this month during Family Court proceedings in Melbourne. The case was adjourned until the issues with the legislation could be resolved.
A proclamation by Governor-General Quentin Bryce was rushed through on February 9 and the changes to the laws finally took effect on February 11.
This means that any orders made from February 11 cannot be challenged.
However, any orders made between March 1, 2009, and February 11 this year are potentially invalid because the Family Court did not have jurisdiction to make them.
The chairman of the family law division of the Law Council of Australia, Geoff Sinclair, said the Family Court and Federal Magistrates Court were trying to ascertain how many cases were involved, but he believed they were in the thousands.
“We are looking to see whether there can be retrospective legislation to deal with those cases . . . I think that is certainly doable” Mr Sinclair said. “We are urging the Attorney-General to take whatever steps are necessary, as soon as possible, to make sure legislation is enacted.”
He said about 90 per cent of family orders were made by consent so he hoped they would not be challenged by the parties.
“It doesn’t matter whether parties are in a de facto relationship or a marital relationship; when the relationship breaks down there’ll often be a lot of emotion from both sides” he said.
“We certainly don’t want a position where people have to go back and revisit issues that have occurred in the past, when hopefully people have put things behind them.”
Opposition legal affairs spokesman George Brandis said: “This is an astonishing act of incompetence at the heart of government. It reinforces every impression the Australian people must already have that this government cannot get anything right.”
However, it is understood a similar oversight occurred under the Howard government in 2006 when the Family Law Act was amended to give the Family Court jurisdiction to consider appeals from family law magistrates in Western Australia.
A proclamation was made to fix this oversight. Senator Brandis said the opposition would support legislation to fix the current problem.
Former Family Court chief justice Alastair Nicholson said the oversight was serious: “If those settlements are called into question, it’s obviously very significant for the people involved.
“It seems the government has no real choice but to pass legislation retrospectively approving them.”
NSW Attorney-General Greg Smith said it was disappointing the federal government had failed to deliver the reforms properly.
(Source: Nicola Berkovic, The Australian, 22/12/2012)
About Rushmore Forensic
Andrew Firth is a director of Rushmore Group. He has conducted numerous investigations and other forensic accounting engagements in Australia, Singapore, the UK, Thailand, Hong Kong, Vanuatu, and the USA.
He specialises in assisting people going through divorce and providing other forensic accounting services for commercial disputes. He is a member of the Institute of Chartered Accountants and has appeared as an Expert Witness in numerous jurisdictions.
False invoice scam nets $650,000 from Curtin University, Perth
A Perth woman has been jailed and another is facing a similar outcome for their respective roles in a “criminal enterprise” that netted about $650,000 from Curtin University.
Joy Angela Sanderson, 47, from Maylands, was today sentenced to 18 months behind bars for laundering more than $100,000 from the university, two years ago.
Her accomplice Tania Carter is facing an even longer jail-term after pleading guilty to 401 charges of stealing a total of about $650,000.
The court heard Ms Carter – Sanderson’s former business manager – drew up false invoices on behalf of Sanderson’s company and submitted them to Curtin University.
The university unwittingly paid the invoices, with the money transferred to Sanderson’s company.
Sanderson then passed on majority of the money to Ms Carter, but retained $22,796 to pay for a holiday and some bills, the court heard.
The ongoing fraud was not detected for nine months, before the university lodged allegations with the Corruption and Crime Commission.
During Sanderson’s sentencing today, District Court Judge John Wisbey said the pair had been involved in a criminal enterprise and imprisonment was the only suitable punishment for Sanderson.
Ms Carter is yet to be sentenced, with her next court appearance scheduled for Friday.
(Sourced: Courtney Trenwith, WA Today, February 14, 2012)
About Rushmore Forensic
Andrew Firth is a director of Rushmore Group. He has conducted numerous investigations and other forensic accounting engagements in Australia, Singapore, the UK, Thailand, Hong Kong, Vanuatu, and the USA.
He specialises in assisting people going through divorce and providing other forensic accounting services for commercial disputes. He is a member of the Institute of Chartered Accountants and has appeared as an Expert Witness in numerous jurisdictions. Rushmore provides services to clients located in Perth and surrounding areas.
Perth council employee jailed for fraud
A local government employee in Perth who contracted $45,000 worth of council work to his company without disclosing he owned it has been given a 14-month jail sentence.
Antony John Patrick Greenwood, 46, pleaded guilty to committing 20 fraud offences when he worked at the town of Cottesloe between March 2010 and May 2011.
His admission came after the council referred the matter to Western Australia’s Corruption and Crime Commission for investigation.
The District Court in Perth heard that Greenwood was the council’s maintenance and conservation officer and in that position had prepared purchase orders and arranged contracts for his own company, Full Circle Design and Construction (FCDC).
Some of the $45,000 worth of contract work Greenwood completed, other work was completed by other contractors, and some of the work was not done, despite being paid for, the court heard.
Greenwood did not tell his employer that FCDC was his firm, though he had signed a code of conduct form saying he would seek permission to do any work outside his council job.
Greenwood has since reimbursed the council for money he received for work that was not completed.
In the District Court on Wednesday, Judge Allan Fenbury told Greenwood he had been involved in serious misconduct, abuse of trust and corrupt behaviour over a 14-month period and his offending warranted a jail sentence.
“This type of deceptive behaviour or corruption is difficult to detect and causes untold financial harm to our society” he said.
Judge Fenbury said he took into account Greenwood’s payment of restitution to the council but said suspending a jail sentence could give the impression that people might be able to buy their way out of prison.
He sentenced Greenwood to four months in jail on six of the fraud counts, 10 months’ jail on another 10 counts and 14 months on the last four counts, all terms to be concurrent.
With an effective sentence of 14 months, Greenwood will be eligible for parole in seven months.
(Source: WA Today, AAP, February 8, 2012)
About Rushmore Forensic
Andrew Firth is a director of Rushmore Group. He has conducted numerous investigations and other forensic accounting engagements in Australia, Singapore, the UK, Thailand, Hong Kong, Vanuatu, and the USA.
He specialises in assisting people going through divorce and providing other forensic accounting services for commercial disputes. He is a member of the Institute of Chartered Accountants and has appeared as an Expert Witness in numerous jurisdictions. Rushmore provides services to clients located in Perth and surrounding areas.