False allegations, fraud and perjury in family court and IVO cases

The Legal Position

Parents often arrive at “fraud” and “perjury” after reading an IVO application, a police facts sheet, or an affidavit they say is untrue. Those documents can be allegation-source material. A criminal charge is a different instrument: someone must commence it, the elements must be capable of proof beyond reasonable doubt, and a public prosecutor may take the matter over or decline it. In the Federal Circuit and Family Court of Australia the live questions remain best interests (s 60CA / s 60CC), including safety and family-violence order history, and — if costs are later in issue — conduct under s 114UB(3)(c). This guide maps how charges are brought, where private prosecutions sit, how the labels interact with IVO/AVO and parenting proceedings, and why framing the other parent as a criminal without a competent finding can damage the record you are trying to protect.

1. Three labels that are not interchangeable

An allegation is a claim that has not been converted into a finding by competent process. An IVO or ADVO application, a police narrative, and an untested affidavit are allegation-source material unless a court has actually found the facts (Amador at [94]–[96]).

Perjury (state) and giving false testimony (Commonwealth) are criminal offences with mental elements. In Victoria, Crimes Act 1958 (Vic) s 314 requires wilful and corrupt perjury. In New South Wales, Crimes Act 1900 (NSW) s 327 requires a false statement on oath, material to a judicial proceeding, knowing it to be false or not believing it to be true. In a federal judicial proceeding — including the Federal Circuit and Family Court of Australia — the Commonwealth offence is giving false testimony under Crimes Act 1914 (Cth) s 35: false testimony, material to the proceeding, in or intending to institute a federal judicial proceeding.

Fraud, in criminal law, is a dishonest obtaining of property or a financial advantage by deception under the applicable state Crimes Act or Commonwealth Criminal Code. A parenting or family-violence narrative you say is untrue is not, by that disagreement, a fraud charge. Using “fraud” as a slogan for “she lied” collapses a financial-deception offence into a parenting credibility dispute.

2. How criminal charges are actually brought

In Victoria, a criminal proceeding is commenced under Criminal Procedure Act 2009 (Vic) s 5 by filing or signing a charge-sheet in accordance with s 6, by filing a direct indictment, or by a direction under s 415 that a person be tried for perjury. Section 6 requires a written charge-sheet signed by the informant personally. The informant is the person who commences the proceeding in the Magistrates’ Court. In practice that person is almost always a police officer or other public official.

In New South Wales, police and public officers ordinarily commence proceedings by court attendance notice under Criminal Procedure Act 1986 (NSW) ss 172–175. Those commencement hooks are not a substitute for reading the charge sheet or CAN actually issued in a case.

A family-law judgment that disbelieves a witness is not a conviction. Referral of papers to a Director of Public Prosecutions is not a finding of guilt and is not an exercise of judicial power to convict. Criminal actions run between the State (or the Commonwealth) and the accused — not between the two parents as prosecutor and accused (Best & Best at [18]).

3. Private prosecutions: possible, gated, and often taken over

Victoria: because the informant is “a person who commences a criminal proceeding,” a private person may file a charge-sheet under s 6. That is the private-prosecution gate. It is not a promise that the charge will be listed, heard, or continued. The Director of Public Prosecutions may take over and conduct any proceeding for a summary or indictable offence under Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii), and may then conduct or withdraw it. The Director’s published policy treats reasonable prospect of conviction and the public interest as reasons to take over and discontinue.

New South Wales: a person other than a police officer or public officer may commence a private prosecution by issuing a court attendance notice signed by a registrar (Criminal Procedure Act 1986 (NSW) s 174). A registrar must not sign the notice if it does not disclose grounds, is not in the required form, or a rule ground for refusal applies. Perjury has a further statutory lock: Crimes Act 1900 (NSW) s 338 — prosecution only by the DPP, at the direction of the Attorney General, or by another person with leave of the judicial officer who constituted the tribunal (or, if that is impossible or impracticable, leave of the Supreme Court), and notice to the DPP. The DPP may take over a prosecution under Director of Public Prosecutions Act 1986 (NSW) s 9.

Other states and territories have their own commencement and DPP-takeover machinery. This guide does not invent those section numbers. If your proceeding is not Victorian or New South Wales, the local Criminal Procedure Act or Criminal Code and the local Director’s functions must be read on their face.

4. IVO, ADVO, DVO and FVRO: the state protection-order track

A family violence intervention order (Victoria), ADVO/AVO (New South Wales), DVO (Queensland) or FVRO (Western Australia) is a state protective order. The application sets out allegations and proposed conditions. Being served is not a finding that the particulars occurred. An allegation in a police narrative or application is not a finding; the order’s existence is context until tested (Amador at [94]–[96]).

In Victoria, Family Violence Protection Act 2008 (Vic) s 78(1) allows the court to make a final order by consent or non-opposition without being satisfied of the matters in ss 74 and 76. That path is not an admission of the application particulars. Treating a consent IVO as a perjury or fraud admission is a category error.

If a person swears or affirms a false statement in a state judicial proceeding, state perjury provisions may be engaged (Victoria s 314; New South Wales s 327). That is a criminal question for police or a prosecutor — or, in the gated circumstances above, a private informant — not something the Magistrates’ or Local Court “converts” automatically from a dismissed or consented protection-order application.

A live protection order still binds. Breach is a separate criminal offence (for example Family Violence Protection Act 2008 (Vic) s 123). Contesting the underlying narrative while breaching the face of the order creates a new charge that does not prove the original particulars were false.

5. The federal parenting track: s 35, Amador, and what the family law court does not do

Parenting orders are made under s 60CA and s 60CC of the Family Law Act 1975 (Cth). The court must assess the evidence before it. The existence or terms of a state protection order do not displace that function (Amador at [94]–[96]). Safety is a general consideration in s 60CC(2)(a); family-violence history and orders are considered under s 60CC(2A). Fact-finding and unacceptable risk remain distinct (M v M; Isles & Nelissen).

If false testimony is given in that federal judicial proceeding, the Commonwealth offence is Crimes Act 1914 (Cth) s 35. The family law court is not the criminal prosecutor. Best & Best at [18]–[19] rejected the idea that a parent can use the family-law proceeding as a vehicle to prosecute the other parent for perjury: criminal actions run between the State and the accused; the other parent has no fiat from the Attorney-General. Contempt under s 112AP is a different, limited power — not a substitute private indictment.

Serious allegations still require cogent proof on the civil standard, taking gravity into account (Briginshaw; Neat Holdings; Evidence Act 1995 (Cth) s 140(2)(c)). Denial, silence, or insistence that an allegation be tested is not lack of insight. He who asserts must prove.

6. How the tracks interact — and what they do not decide for each other

Division 11 (ss 68N–68S) deals with inconsistency between certain federal spend-time orders and a state family violence order. It does not try a perjury count and it does not invalidate every condition of an IVO. Section 68Q reaches spend-time inconsistency after the statutory preconditions; s 68R is the state court’s limited power, when making or varying a family violence order, to touch an existing federal parenting order.

A dismissed charge, a withdrawn private prosecution, or a dismissed ADVO/IVO application is not a parenting finding that family violence did not occur — and it is not a finding that the applicant committed perjury. The family law court still assesses the material before it (Amador). Conversely, an adverse parenting credibility comment is not a s 35 or s 314 conviction.

r 2.04 (Notice of Child Abuse, Family Violence or Risk) requires disclosure of relevant orders and risk issues. Accurate completion is procedural truthfulness. It is not an admission that every allegation in those orders was proved, and it is not a waiver of a later challenge to the particulars.

7. Risks of framing the dispute as fraud or perjury

The criminal standard is beyond reasonable doubt. The parenting standard is the balance of probabilities, with gravity affecting the quality of evidence required (s 140(2)(c); Briginshaw). Launching a criminal frame does not lower the parenting onus onto the other parent, and it does not prove the parenting case you still have to run.

s 114UB(3)(c) cuts both ways. Conduct that includes making false allegations, or failing to comply with orders or duties, may inform a costs discretion. An unproved counter-allegation that the other parent committed perjury or fraud is itself a serious allegation. If it outruns the evidence, it can become the conduct the court is invited to weigh against you.

Private prosecution is not a shortcut around police or the DPP. The Director may take the proceeding over and withdraw it. In New South Wales, perjury requires leave and notice. A refused or withdrawn private prosecution can harden a narrative that you used criminal process as a parenting tactic.

A finding that allegations were false or misguided does not, without more, justify a change of residence (Dever at [33]). Treating “she committed perjury” as if it automatically produced live-with or spend-time orders inverts that authority.

Weaponised criminal labels in messages, affidavits, or social posts become exhibits. They do not replace particulars, dates, and the evidentiary bridge between this parent, these children, and the order sought.

8. Practical traps

• Calling an IVO application or police facts sheet “fraud” without the elements of a deception-and-obtaining offence.
• Asserting perjury because you disagree with an affidavit — s 35 and s 314 require falsity, materiality, and the mental element, not dislike of the account.
• Filing as a private informant to pressure parenting negotiations — the DPP may take over and discontinue; the family law court still decides live-with and spend-time on s 60CC.
• Treating a consent IVO under Victorian s 78 as a sworn admission of the particulars.
• Breaching a live protection order to “prove” the allegations were false — that is a new criminal exposure (for example s 123 Vic).
• Asking the Federal Circuit and Family Court to convict the other parent of perjury as if the parenting case were a private indictment (Best).
• Inventing a “proved false” finding the record does not contain.

9. Options on the record — not directives

The following are procedural options with their evidentiary basis. They are not personalised advice about whether to report, charge, or prosecute anyone.

1. Read the face of every live protection order and parenting order. Comply with conditions while any merits contest proceeds.
2. Separate the tracks in your material: state order conditions; contested particulars; federal live-with or spend-time orders sought under s 60CA / s 60CC.
3. Preserve dated records, the application or affidavit you say is untrue, and any competent finding that actually exists. Do not fabricate the missing finding.
4. If you consider a criminal report, that is a matter for police or a public prosecutor in the first instance — independent criminal legal advice is a separate option.
5. If a private prosecution is contemplated in Victoria or New South Wales, the gates above (charge-sheet / s 174 CAN, and for NSW perjury s 338 leave and DPP notice) must be capable of being met on the documents. This platform does not file that process.
6. In the family law proceeding, particularise denials and exhibits. Serious counter-allegations of knowing falsity require cogent proof (Briginshaw; s 140(2)(c)).
7. If costs become live, treat s 114UB(3)(c) as a two-way conduct discretion — not a prize for using the word perjury.

Key Legislation and Authorities

• Family Law Act 1975 (Cth) — s 60CA, s 60CC(2)–(2A), ss 68N–68S (Division 11), s 114UB(1)–(3) (costs, including conduct at s 114UB(3)(c)), s 112AP (contempt — limited; not a private perjury prosecution)
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) — r 2.04
• Evidence Act 1995 (Cth) — s 140(2)(c)
• Crimes Act 1914 (Cth) — s 35 (giving false testimony in a federal judicial proceeding)
• Criminal Procedure Act 2009 (Vic) — ss 5–6 (how a criminal proceeding is commenced; charge-sheet signed by the informant), s 415 (direction that a person be tried for perjury)
• Public Prosecutions Act 1994 (Vic) — s 22(1)(b)(ii) (DPP may take over and conduct proceedings for a summary or indictable offence)
• Crimes Act 1958 (Vic) — s 314 (wilful and corrupt perjury)
• Family Violence Protection Act 2008 (Vic) — s 78(1) (consent or non-opposition is not an admission of the application particulars)
• Criminal Procedure Act 1986 (NSW) — ss 172–175 (court attendance notice), s 174 (commencement of private prosecutions)
• Crimes Act 1900 (NSW) — s 327 (perjury), s 338 (restrictions on prosecutions for perjury: DPP, Attorney-General direction, or leave)
• Director of Public Prosecutions Act 1986 (NSW) — s 9 (DPP may take over a prosecution)
• Amador & Amador [2009] FamCAFC 196 at [94]–[96]
• Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
• Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
• M v M [1988] HCA 68; (1988) 166 CLR 69
• Isles & Nelissen [2022] FedCFamC1A 97
• Dever & Serano [2025] FedCFamC1A 202 at [33]
• Best & Best [2016] FamCAFC 190 at [18]–[19]