VIC Family Law - Considered Perverting the Course of Justice?

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Familylaw101

Well-Known Member
25 January 2019
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121
Hi everyone,

Thanks in advance, I would just like to know if the following scenario is considered to be "Perverting the course of Justice".

1. Individual "A" has a Family Parenting Order made in January 2018 with Individual "B".

2. Individual "A" has an intervention order taken out against them by the police for serious misconduct to do with their children and the intervention order also suspends the Family Parenting Order made in January 2018 under section 68r of the Family Law Act so that only Individual "B" has parental responsibility.

3. Individual "A" writes in an affidavit for court on Monday that they acknowledge the parenting order of 2018 has been suspended by section 68r of the family law act under the intervention order. This is also signed by Individual "A".

4. Individual "A" then visits the police station where breaches of the intervention order by the children's school have been reported to stating that the parenting plan of 2018 overrides the intervention order (despite acknowledging in their affidavit that the parenting order is suspended) of 2019 and somehow convinces a constable that they are correct, the constable believes them. This allows Individual "A" to breach the intervention order by stalking their children until one of the children notify individual "B" that they are scared of individual "A" who they have noticed is following them.

5. Individual "A" prior to visiting the police station also states to the school that the Family Parenting order of 2018 overrides the intervention order of 2019 (despite what is mentioned in point 3).

Is this an example of Perverting the Course of Justice by admitting that the Family Order is suspended in their signed affidavit prior to visiting the police station and convincing the police officer not to charge them?
 

Familylaw101

Well-Known Member
25 January 2019
30
0
121
Point 4 should state:

4. Individual "A" then visits the police station to answer to breaches noted by the children's school which have been reported to the police where individual "A" also stated that the parenting plan of 2018 overrides the intervention order (despite acknowledging in their affidavit that the parenting order is suspended) of 2019 and somehow convinces a constable that they are correct, the constable believes them. This allows Individual "A" to breach the intervention order by stalking their children until one of the children notify individual "B" that they are scared of individual "A" who they have noticed is following them.
 

Tremaine

Well-Known Member
5 February 2019
183
31
514
Some questions and comments.

First, does the intervention order explicitly state the parenting order is suspended? If it's silent on this, then no part of the parenting order has actually been suspended. Such a suspension requires an explicit order, it's not inferred merely by the making of an intervention order.

Second, there are some limitations on state court powers in relation to s 68R:

In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:

(a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or​

I may be wrong (and someone please correct me if I am), but my understanding of that law is that a state court cannot revive, vary, discharge or suspend an entire parenting order, only the parts of the order about a child spending time with the other parent. Parental responsibility does not fit into this category.

It's also immaterial that Parent A wrote an affidavit 'acknowledging' they lost parental responsibility as a result of the intervention order. An affidavit contains only information which they believe to be true at the time of deposition, and even so, their beliefs do not change the operation of the law, in any case.

So, in short, no, I don't believe this could be classed as an example of a person perverting the course of justice.
 

Familylaw101

Well-Known Member
25 January 2019
30
0
121
Some questions and comments.

First, does the intervention order explicitly state the parenting order is suspended? If it's silent on this, then no part of the parenting order has actually been suspended. Such a suspension requires an explicit order, it's not inferred merely by the making of an intervention order.

Hi,

The intervention order does state that the Parenting order made in 2018 is suspended under 68r of the Family Law Act.


Second, there are some limitations on state court powers in relation to s 68R:

In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:

(a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or​

I may be wrong (and someone please correct me if I am), but my understanding of that law is that a state court cannot revive, vary, discharge or suspend an entire parenting order, only the parts of the order about a child spending time with the other parent. Parental responsibility does not fit into this category.

Yes you are correct with what you said about the time spent with the child, which in my opinion means if that is suspended then an intervention order is in place that would be a breach of the intervention order if it states to stay 250 meters away from the said person at all times, especially given the scenario.

It's also immaterial that Parent A wrote an affidavit 'acknowledging' they lost parental responsibility as a result of the intervention order. An affidavit contains only information which they believe to be true at the time of deposition, and even so, their beliefs do not change the operation of the law, in any case.

So, in short, no, I don't believe this could be classed as an example of a person perverting the course of justice.

Parent A wrote in the affidavit that they acknowledged they were suspended from being able to have access to the children and that the intervention order was in place against them and then presented the parenting order of 2018 that was suspended which parent A knew about to the police officer at the time so that charges could not be laid against them for the 7 to date breaches of the intervention order.

So if they acknowledged it to be true 4 days prior to doing what I mentioned above but because an affidavit is known to be true at the time the following scenario is still considered to be perverting the course of justice?

Thank you for your response as well, great hear different people's insights and opinions regarding this.
 

Scruff

Well-Known Member
25 July 2018
902
133
2,389
NSW
A few other things to consider...

1. Perverting the course of justice has to be intentional - which means it can be very difficult to prove.

2. In this case, it would come down to the relevant definition. I don't know about VIC, but in NSW, the definition of Perverting the course of justice (s312 of the Crimes Act) includes "preventing" the course of justice. The "course of justice" is generally considered to be indictment onwards, so it would include court actions, but would not include Police investigations. However under the NSW definition, if a person intentionally misleads the Police for the purpose of avoiding indictment, then they have attempted to "prevent" the course of justice and their actions therefore meet the definition at s312. As such, they can be charged with Perverting the course of justice under s319 even though the "course of justice" never even began.

3. If a person intentionally provides false information to Police for any reason, then it is usually dealt with under other provisions of the law, such as those that deal with impeding a Police investigation. In this case, it may be better to look at those provisions.

Remember that you don't have to research the law here and you don't have to be right. If you suspect that a person has mislead the Police for any reason, intentionally or otherwise, then you can simply let the Police know about it and let them sort it out. If you're wrong, then no harm done - but if you're right, the Police can take action in regard to both the original complaint, as well as the conduct relating to the provision of misleading information.
 
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