27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18



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3.4 COSTS ORDERS: s 117AB

Introduction

Section 117AB provides as follows:

117AB Costs where false allegation or statement made

(1) This section applies if:

(a) proceedings under this Act are brought before a court; and

(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.

Section 117AB commenced on 1 July 2006, being among the amendments made to the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The Explanatory Memorandum explained that the section was designed to address ‘concerns expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings’.97


Background to s 117AB


The idea that the legislation should include a specific provision relating to costs was not part of the original Hull proposals of 2003, but was first suggested by the House of Representatives Standing Committee on Legal and Constitutional Affairs (‘the LACA Committee’) in its report on the bill in August 2005.

The LACA Committee


The LACA Committee’s reasoning may be summarised as follows. First, after reviewing submissions about false allegations, it concluded that it was:98

unable to determine to what extent the allegations of family violence and abuse made in family law proceedings are actually false but accepts that these allegations do occur.

The Committee referred to the objective test involved in the new definition of family violence, and the changes proposed in Schedule 3, but it did not consider that these measures were ‘sufficient to address the concerns raised’. The Committee then said that a number of witnesses had supported the approach of deterring false allegations ‘by ensuring appropriate penalties for the making of false allegations’. It discussed the offence of perjury, noting that there was a perception that perjury cases were rarely prosecuted, and noting the requirement to prove an intention to deceive beyond reasonable doubt. After agreeing with the Lone Fathers Association that sufficient funding should be provided for investigations into perjury, it concluded:


The Committee considers there is merit in an explicit provision in the Act for the imposition of cost penalties by the court dealing with the family law proceeding where false allegations are knowingly made.

This approach avoids the need for separate criminal proceedings which may not be appropriate given that parents need to maintain an ongoing parenting relationship. It ensures that a penalty is imposed at the same time as the family court determination rather than relying on the possibility of protracted criminal proceedings at a later date. The Committee notes concerns about limitations on the courts power to investigate allegations of family violence and abuse.

The Committee notes that the government discussion paper ‘A new approach to the family law system’ contained a proposal for a specific cost provision for false allegations that arose in the context of the compulsory dispute resolution provision. The departmental submission stated that the government decided not to proceed with that measure because there were concerns that this would discourage people from relying on the exceptions where there were genuine family violence and abuse issues. Another consideration was that the measure did not satisfy other groups who did not consider this provision would be an effective deterrent.99 That issue is discussed further at paragraphs 3.50 -3.57 in Chapter 3.

Conclusion

The Committee concludes that the Family Law Act 1975 should contain an explicit provision directing the courts to impose costs penalties where they are satisfied that false allegations have knowingly been made. Such a penalty would not prevent criminal prosecution in appropriate cases. A specific provision would make clear the intention that costs should be imposed in these circumstances.

The Committee’s recommendation was100


that the Family Law Act 1975 should be amended to include an explicit provision that courts exercising family law jurisdiction should impose a cost order where the court is satisfied that there are reasonable grounds to believe that a false allegation has been knowingly made.

The Senate Committee


Such a clause was duly inserted into the bill, which was later considered by the Senate Legal and Constitutional Legislation Committee (‘the Senate Committee’) in its Report of March 2006. The provision in the bill was then to the effect that where the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings, the court must order that party to pay some or all of the costs of another (or other) parties. The Senate Committee, however, did not support the clause that was to become s 117AB. Like the LACA Committee, the Senate Committee found that evidence that there was a problem with false allegations in the family law system was inconclusive, and in these circumstances, it recommended that the provision

should be removed from the bill pending any relevant results of the Australian Institute of Family Studies research into the prevalence of false allegations of family violence in family law proceeding.101

The Government’s response


The Government did not accept the recommendation to remove s 117AB. Its Response stated:102

The Government believes that, regardless of the frequency of false allegations and statements in family law proceedings, any occurrences should be penalised. The test is restricted to situations where the false statement has been ‘knowingly made’. In such circumstances it is appropriate that costs be incurred and courts already routinely make such orders in these circumstances.

The reference to ‘false allegations and statements’ is significant. Although the early form of the section had referred only to allegations, it was deliberately changed to include statements (a term that would include false denials of abuse or violence). As the then Attorney-General said:


The Bill seeks to address concerns about false allegations and false denials by the inclusion of the new cost provision that applies where a person has knowingly made false allegations or a false statement and this clearly also covers false denials. This provision implements a committee recommendation. It is appropriate, given the high test that must be satisfied, a person must knowingly make the false statement. In such circumstances criminal penalties could also be applied.

This statement is of interest for two other reasons. First, the Government’s support for s 117AB was not based on any view about the frequency of false allegations and statements: its view was that any occurrences should be penalised. Second, the Government believed that ‘courts already routinely make costs orders in these circumstances’.



This passage thus indicates that the Government had no wish to change s 117 (the main provision dealing with costs), and raises the question why the Government thought s 117AB was needed. Perhaps it saw s 117AB as a salutary reminder of the consequences of making a knowingly false allegation or statement.

The history summarised


To sum up, this review of the history of the provision indicates:

  • The provision was inserted as a response to certain groups who expressed a concern about false allegations of violence.

  • The initial recommendation addressed false allegations of violence. The inclusion of the reference to false statements in s 117AB resulted from a later decision to deal also with false denials.
  • Although there were competing assertions about the frequency of false allegations of violence, and false denials, no relevant research evidence was put to any of the parliamentary committees, and the committees did not make any findings as to the prevalence of such claims.


  • The Government’s view seemed to be that s 117AB emphasised the likely consequence of the ordinary operation of s 117, namely that costs orders might be made if the court found that knowingly false evidence had been given. The Government made it clear that the case for s 117AB did not depend on the frequency of false allegations of statements. It did not comment on the danger that the section might discourage victims of violence to make disclosures.

The operation of the provision


Enquiries of legal practitioners and judicial officers made in connection with the review indicate that costs orders under s 117AB are in practice rarely sought and rarely made.103 This is consistent with all other information received during the Review: it is clear that orders under s 117AB are rare in practice. Maluka provides an example of a case in which there was no costs order under s 117AB, although some of the findings could be seen as attracting the section.104 The language of the judgment also illustrates the way courts typically deal with evidence that they do not accept, and shows, in particular, that courts often do not expressly find that particular items of evidence were knowingly false. In that case, Benjamin J said:

43. The father denied that he has ever punched the mother but says on one occasion he slapped her once on the shoulder but this was in the context of a pushing and shoving between the parties. I do not regard his evidence on this point as reliable.

44. The father denies the violence and abuse except to a very limited extent. In submissions his Counsel conceded that some of the father’s denials could not stand scrutiny. When faced with overwhelming evidence the father minimises his culpability and/or blames others or events.


45. The father is an unimpressive witness. He is not frank in his evidence; he is glib and at times evasive. He endeavours to offer explanations which at times are hollow. At other times his evidence is frankly unbelievable…

46. The father’s evidence is generally unreliable and I do not accept him to be a witness of truth. […]

186. The father has consistently concealed and falsely denied the violence that he had inflicted upon the mother.

Costs orders are not unknown, however, and some of the reported decisions on the section are considered below.


The case law on s 117AB


The section does not appear to have been the subject of an authoritative ruling by the Full Court, but there are some available decisions at first instance applying s 117AB.

It is clear that the section applies only to knowingly false evidence. Thus in Charles,105 the application was brought by a wife, who argued that the husband had made false allegations that she was violent towards him. Cronin J dismissed the application for costs, holding that although he had preferred the evidence of the wife to that of the husband, this conclusion did not amount to a finding that the husband had given knowingly false evidence.

In Sharma, Ryan J found that some of the wife’s allegations were ‘fabrications’.106 Her Honour reviewed all the matters relevant to costs, and concluded that the wife should pay 25% of the husband’s final hearing costs, an amount of $3,195. Her Honour analysed the law as follows:

By s 117AB(2), where false allegations or statements are made, it is now mandatory that the Court order the offending party to pay some or all of the other party’s costs. For this purpose the Court is also able to make an order in favour of an Independent Children’s Lawyer. The only aspect of this issue which is discretionary is the quantum of costs payable by the offending party. […]


There is no statutory guideline concerning the manner in which the Court determines the quantum of costs payable pursuant to s 117AB. The factors which ordinarily influence the Courts discretion about whether an order will be made at all (s 117(2A) purport to relate only to the exercise of that discretion and not to the separate issue of the quantum of a costs order which s 117AB mandates. Nonetheless s 117(2A) contains a useful structure of relevant considerations when determining the quantum of an s 117AB order.

This passage indicates that in considering what costs order to make, the court considers the false evidence together with other matters relevant under s 117. Another example is Claringbold,107 where the application was based on the wife’s false denial that there had been violence by her present partner. Bennett J said:



34. … The section itself has the effect of focussing the mind on the costs implications of allegations of family violence and abuse which can be easily made but, when false, are still difficult and costly to refute. […]

I give weight to the fact that the wife maintained her denial of certain events which were ultimately proved to the court to have occurred pretty much as the husband alleged and that she otherwise lied expressly or by omission and I have done so in my consideration of the conduct of the parties to the proceedings as well as pursuant to my obligation under s 117AB.

The other available decisions are consistent with this approach.108


Submissions

Some submissions, including that of the Family Law Section of the Law Council of Australia, suggested the repeal of s 117AB, mainly arguing that it was unnecessary or that it discouraged the disclosure of family violence.109 For example the NSW Law Society wrote that the very existence of the section provides a clear disincentive to parties making allegations’. It was defended by Men’s Rights Agency and at least one other submission.110

The importance of truthful evidence


It is well established that in property cases under the Family Law Act 1975 giving false evidence, especially about one’s assets, can attract a costs order. Thus in Penfold, Murphy J said: “Presentation of a false statement of financial circumstances, which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs.”111 There are other decisions to similar effect.112 There seem to be fewer reported decisions about these matters in children’s cases than in financial cases, but this may reflect a mistaken view prior to about 1995 that costs should not ordinarily be awarded in children’s cases as opposed to financial cases.113 There is no doubt that as a matter of law the giving of knowingly false evidence about family violence as well as other things, especially where it leads to proceedings being protracted, can give rise to costs orders under s 117.

Truthful evidence is of at least equal importance in children’s cases, and arguably of more importance. In relation to family violence, false or misleading evidence relating to violence can cause great distress, and lead to outcomes adverse to the interests of children. If it consists of false allegations, the adverse outcomes might be that the children spend less time than they should with the person wrongly accused of violence. If it consists of false denials, the adverse outcomes might be to put children or other family members at risk, or to prevent or discourage productive ways of dealing with the problem. The damage done by false evidence can also relate to other matters, such as what wishes or views children have expressed.

For these reasons, there is much to be said for measures that might help to reduce the giving of false evidence.

Difficulties with the existing provision


As the reported cases have pointed out, the section does not specify what costs order is to be made, or provide any guidelines.114 Costs orders range from orders to the effect that a party should pay the whole of the other party’s costs of the proceedings, or some proportion of the costs, or some specific amount. The requirement that the court make a costs order could technically be satisfied by making some minimal costs orders.

In addition there is nothing in the section that would prevent the court from also making other costs orders in regard to the general provisions of s 117. Thus, as some of the decisions illustrate, consistently with the legislation, the court could make a costs order in favour of one party based on the making of a false statement and a costs order in favour of that party, for a different amount, based on other matters that arise under s 117.

Next, it should not be assumed that the court will ordinarily be in a position to find that a person knowingly gave false evidence. It is an everyday thing for the courts to prefer the evidence of one party to another, but they usually do so without finding that one party gave deliberately false evidence. It is generally thought that many differences of opinion about facts reflect genuine differences of recollection.115 Also, in relation to many ambiguous and emotional events people come to believe a particular version of events and give evidence which, although shown to be inaccurate, represents their genuine beliefs. In many cases, I suspect, the differences of evidence do not reflect one or both parties deliberately fabricating evidence, although no doubt this happens in some cases.

Although actual costs orders under s 117AB are rare, it is possible that the fear of a costs order (whether well founded or not) may influence litigants in the way they present evidence. There are a number of possibilities. Fear of a costs order might have the desirable effects of discouraging litigants from making knowingly false allegations of family violence, or making knowingly false denials of it. On the other hand, it could have the undesirable effects of discouraging litigants from making truthful allegations of family violence, or truthful denials of it. It could have all of these effects, affecting different cases in different ways.

Although s 117AB now speaks of false ‘statements’ as well as false allegations, it is well known that it stemmed from a concern about false allegations of family violence, made by women against men, and it seems to be understood in practice as having that purpose. Because of this association, in my view it is likely that it has the effect, in some cases, of discouraging victims of violence from making true allegations, for fear that if the court does not accept the allegation, they might have to pay costs. Further, it may give the impression that the legislature has accepted the view that women’s evidence about men’s violence is inherently unreliable. In my view there is no satisfactory evidence that this is so, or that allegations of violence are more likely to be knowingly false than denials of violence, or, indeed, more likely to be knowingly false than any other type of evidence.

It is sometimes said that allegations of violence or abuse are easy to make, but difficult to disprove.116 The second part is often true: it can indeed be difficult to prove that one has not been violent, or that one has not misbehaved in other ways. But is it really easy to make allegations of violence or abuse?

In one sense it is, namely that it is a simple act to write down allegations and file an affidavit to that effect. However while the physical act of filing the affidavit may be easy, the evidence indicates, I think, that for many people who have been victims of violence or abuse, it is embarrassing and painful to make that experience public. The National Legal Aid submission says this:

it is the experience of Legal Aid lawyers that there are a number of reasons why family violence is not disclosed and that non-disclosure does not necessarily mean there has been no family violence. Some reasons for non-disclosure are:


  • an attempt to reduce conflict;

  • as a show of good will;

  • insufficient legal advice;

  • the misguided assumption that there is an obligation to mediate at all costs;

  • an inability to define a partner’s unacceptable behaviour as family violence; and

  • a belief that reaching an agreement is preferable to going to court.

  • fear of not being believed and being perceived as alienating/not friendly, with the feared consequences being more time to the other parent and the child/ren being at prolonged risk, and/or fear of other penalty.

The cliché that violence is ‘easy to allege’ is in my opinion misleading. It fails to recognise the serious inhibitions people often have about publicly disclosing the fact that they have been in a violent or abusive relationship, and the variety of reasons why they might be reluctant to do so in family law proceedings.

Much of the literature relates to women victims of violence, but the experience may be at least as difficult, and perhaps in some ways more difficult, for men who have been exposed to violence. It is important that the family law system should not be seen to favour either men or women, or to favour either those who allege family violence or those who deny it. Indeed, as the former Government correctly noted, ultimately it is of limited relevance what proportion of people give false evidence about particular sorts of matters: the family law system must be ready to deal with each case on its merits, and determine as best it can where the truth lies in each case. Its capacity to do this will be greater if it is seen as fair and unbiased by all those who deal with it.

In short, the law should try to encourage people to tell the truth without making, or appearing to make, any pre-judgment. In my view this requires repealing s 117AB, which still carries with it the suggestion that the system is suspicious of those who allege violence, and which (as the former government recognised) does not significantly change the ordinary law of costs under s 117.

At the same time, there may well be merit in the idea that the law should make it clearer that giving knowingly false evidence can lead to costs orders. This might be achieved by an appropriate amendment to s 117.

Section 117(1) provides in substance that with some qualifications, ‘each party to proceedings under this Act shall bear his or her own costs’. Subsection (2) provides that the court may make ‘such order as to costs… as the court considers just’ if it considers ‘that there are circumstances that justify it in doing so’. Subsection (2A) then provides that in considering what order (if any) should be made, the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and


  1. such other matters as the court considers relevant.

If it be thought that the Act should do more to discourage people from giving knowingly false evidence, s 117 could be amended to provide expressly that the court could take into account, when considering making a costs order, that a person had given knowingly false evidence. This could be done, for example, by amending subsection (2A) by adding a new paragraph to the following effect: ‘Whether a party has knowingly given false evidence in the proceedings’.

A final decision on this question could involve a consideration of the whole of the sections relating to costs, which is beyond the scope of this review. The recommendation will therefore be that the possibility be considered.



Recommendation 3.2

That s 117AB be repealed, and consideration be given to amending s 117 to make specific reference to the giving of knowingly false evidence, for example by inserting a new paragraph in subsection (2A) to the following effect: ‘Whether a party has knowingly given false evidence in the proceedings’.




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