Beware the criminal consequences of false allegations of sexual abuse

In Huda & Huda the Court considered circumstances when the family courts may refer a matter for criminal prosecution – that is, the Father was referred for lying that the mother sexually abused her children.

In Huda & Huda (No.2) [2020] FCCA 1804 (2 July 2020) there had been final orders made by consent on 18 May 2016 with respect to two children born 2005 and 2007.

A Hearing took place in relation to property settlement issues but that judgement was subsequently appealed by the Husband (and the the then intervener Mr Laham). The appeal was allowed on 18 May 2018. By the time of the rehearing on 29 July 2019, the intervener was no longer a party to the proceedings but parenting issues were again a live issue and both parties sought a change to the final parenting orders. The trial proceeded over ten days and judgement was then delivered on 9 April 2020. In the reasons for judgement, the court made findings against Mr Huda. In view of the findings made by the Court against the Mr Huda, “…in particular, having regard to the findings made by the Court concerning the husband’s false allegations against the mother of sexual abuse of the children.” the Court gave to the parties an opportunity to make a submission as to whether or not the Court should refer Mr Huda (and the Court papers) to the Commonwealth Attorney-General for investigation and possible prosecution. The cases where the court considered to determine whether or not a referral should be made were:

In a case entitled In the Marriage of P & P (1985) 9 Fam LR page 1100 – Lindenmayer J stated from page 1108:-

 

“The first question which this poses for my consideration is whether I have a duty to refer the papers in this matter to the Commonwealth Attorney-General for consideration by him or his officers of whether proceedings should be commenced against either or both parties for the recovery of the income tax avoided and/or any penalties arising therefrom, or whether I should take any other, and what, steps designed to ensure the recovery of the unpaid taxes. The second question is, what effect, if any, should the fact that one or both parties may be liable to prosecution for income tax evasion have upon my determination of these proceedings.

Mr Warnick, for the wife…went on to submit that the making of a referral in a case such as this does not involve the exercise of any inherent jurisdiction of the court. In support of this submission he relied upon the statement by Gibbs J (as he then was) in Taylor v Taylor [1979] HCA 38; [1979] FLC 90-674 at 78-590 that ‘the [Family] Court would not have any inherent power except such as might be necessary to enable it to do justice within the limits of the jurisdiction which the Act confers upon it’. Again, I agree with that submission.

However, in my opinion the issue for my consideration in this case is not one of jurisdiction or power, but one of duty or obligation. In my opinion, all courts of law, including the Family Court of Australia, in exercising their jurisdiction or powers, have certain fundamental duties. For example, all courts have a duty to act judicially and not arbitrarily or capriciously. Likewise, all courts have a duty (subject to certain specified and limited exceptions) not to make orders without hearing, or giving an opportunity to be heard to, any persons whose rights are affected by such orders. Admittedly, those duties arise in and for the purpose of proceedings in the court, and breaches of them may be enforced by way of appeal or, in some cases, by prerogative writ. Assuming that this court has a duty to make a referral in certain cases of breach of the revenue laws, a failure to carry out that duty would seem incapable, or at least unlikely, of enforcement at the instigation of either of the parties. In my opinion, however, the absence of any mechanism for enforcement does not itself negate the existence of a duty, and the question whether such a duty exists must be determined by reference to other criteria, including the historical origins of courts and an analysis of the composition, functions and place in society of those courts.”

At page 1114 of the decision In the Marriage of P & P (supra) Lindenmayer J concluded:-

“I am of the opinion that this court, as a Federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth. That duty extends to requiring this court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants or others who come before it.

Where, as in this case, the evasion is by a party and has already occurred, the steps which the court might take in fulfilment of its duty are limited. It might, I suppose, upon becoming aware of the relevant evasion, adjourn or stay the proceedings and refuse to proceed further until satisfied that the party in question has made a full disclosure to the Commissioner of Taxation. Such a course, however, may work an injustice upon the other party. Furthermore, such a course may be seen as putting the offending party in the position of either being obliged to incriminate himself or being denied a hearing of his case by the court. I think that it would not be appropriate for a court of law to place him in that position.

Lindenmayer J concluded that the Court, in that case, had a duty to refer the conduct of the litigants involved. This question was considered again Malpass & Mayson [2000] FamCA 1253 by the Full Court of the Family Court. At paragraph 31 the Full Court came to the conclusion that the Court does have the power to refer the commission of possible offences to relevant authorities – but the Court is not always under a duty to make such a referral or report. At paragraph 31 of the decision the Full Court stated:-

“31. Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly. It does not arise here for there is no dispute as to the Court’s power to make such a reference, as his Honour did.”

Of particular note in in the decision of Malpass & Mayson (supra) is the reference by the Full Court to the fact that, “questions of degree must be relevant”. In other words, every case is different.

In Huda & Huda, the court made findings that the Father had falsely accused the Mother of sexually abusing the children. The Court’s findings against the Father related to his allegations that:

1. That Ms Huda engaged in sexual intercourse with a man in front of the children (note paragraphs 56 and 57 of the Reasons for Judgment);
2. That Ms Huda masturbated in front of the child D (paragraph 71 of the Reasons for Judgment); an
3. That Ms Huda had engaged in sexual relations with the children since the children were born (paragraph 129 of the Reason for Judgment).

His Honour came to the conclusion that the father made these allegations even though he knew them to be false. He also determined that the allegation that a parent has engaged in sexual abuse of their own child is an allegation of the most serious kind and therefore should be referred to the Commonwealth Attorney General for the purpose of considering whether or not criminal proceedings should be commenced.