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Beware what you declare is true

23 September 2014

In a recent court case for property settlement, the defacto wife (wife) alleged that there had been a de facto relationship of some 17 years. This was disputed by the defacto husband (husband) who said that there had never been a relationship that could be categorised as a de facto relationship under the Family Law Act.

A preliminary issue which the Judge had to deal with was the impact of evidence that the wife had, at all relevant periods when she said she was in a defacto relationship with the husband, declared to Centrelink and the Australian Tax Office (ATO) that she was single and not in a relationship.

The husband argued that as a matter of legal principle all evidence of the wife which sought to assert a position opposite to what she had told Centrelink and the ATO, ought to be rejected and found inadmissible.  The husband claimed that (according to established legal principle) a person who repeatedly makes a declaration of fact to the relevant authorities for financial gain should not to be able to assert to a court that it should find the facts to be different than he or she hasrepeatedly claimed them to be.

At a preliminary hearing, the Judge decided that in the circumstances of this case the relevant legal principle should not exclude the wife’s evidence or preclude the husband from leading evidence contrary to statements made by her in documents submitted to Centrelink and the ATO, for the following reasons:

  • The wife’s case, was that she had, with the full knowledge of the husband, made statements to Centrelink and the ATO which were false;
  • Taken at its highest, the wife’s evidence would potentially establish the existence of a de facto relationship of some 17 years’ duration;
  • The wife’s case was that the husband had been aware of representations made to those agencies and aware that they were false and therefore both parties had gained inappropriate financial advantage from the representation;
  • In circumstances where the wife suggested knowledge of the statements at the time they were being made by the parties jointly, the exclusion of that evidence would have far greater potential for injustice, inequity and offence of public policy than its admission;
  • To allow the admission of the evidence did not prevent the testing of the wife’s evidence and her credibility, and if her assertions were found wanting the evidence could be rejected and cost orders made.

When the case was ultimately heard, the Judge determined that the parties had not been in a de facto relationship for the purposes of the Act, and one of the key pieces of evidence to support his findings was the inconsistent statements given by the wife to Centrelink and the ATO.

If the Judge had found that the parties were in a defacto relationship, and that the declarations the wife had made to Centrelink and the ATO were therefore false, then the court had the ability to, and was likely to, refer the case to the relevant agencies to enable them to consider taking action to recover entitlements that should not have been paid or to seek the imposition of penalties.

2019-04-23T14:45:24+10:00

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