Monday, 21 February 2011

Family Court: decision as to s.117AB

Section 117AB of the Family Law Act provides that if a party knowingly made a false statement or allegation in the proceedings, the court must make an order against that party. The section has been criticised for being inserted at the instigation of men's rights groups with the intention of preventing women from rightly alleging domestic violence or sexual abuse. Currently there are proposals for the section to be abolished.

It is apparent from the recent case of Abbott and Langdon (Costs) that if there is a finding that a party knowingly made a false statement or allegation in the proceedings, then section 117AB overrides the general discretion on costs under section 117 of the Family Law Act. In other words: evidence of lies in the proceedings, a costs order must be made.

Justice Boland stated the approach to be taken on costs:

  1. The relevant provisions of the Act are s 117, s 117AB and s 117C.
  2. Section 117 provides as follows:
(1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)  In considering what order (if any) should be made under subsection (2), 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
(g)  such other matters as the court considers relevant.
  1. Section 117AB provides as follows:
(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.
  1. Section 117AB was introduced into the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The effect of the provision was discussed by me exercising the appellate jurisdiction of the Court in Child Support Registrar & Kanavos [2010] FamCAFC 244 at, inter alia, paragraphs 68-71 and 78-84 as follows:
    1. Section 117AB was inserted into the Act in 2006 and commenced operation on 1 July 2006.
    2. As there is no test or criteria in the section as to what is required to establish that a false allegation or statement has been made “knowingly” it is appropriate to refer to the Revised Explanatory Memorandum (see s 15AB(2)(e) Acts Interpretation Act 1901(Cth).
    3. Paragraphs 226 and 227 of the Revised Explanatory Memorandum are as follows:
Item 41 inserts a new provision section 117AB after section 117 which is the section that deals with costs. The new provision provides that a court must order a party to pay some or all of the costs of another party, or other parties to the proceedings, where the court is satisfied that that party has knowingly made a false allegation in the proceedings. This provision implements recommendation 10 of the LACA Report. It attempts to address concerns that have been expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings. The provision is broader than family violence or abuse allegations and would apply to any false statement knowingly made.
The LACA Report noted that this approach avoids the need for separate criminal proceedings for perjury which may not be appropriate given that parents need to maintain an ongoing parenting relationship. Perjury can also be difficult to establish given it is a criminal process. The provision ensures a message to the courts that a penalty should be imposed at the same time as the court determination rather than relying on the possibility of protracted criminal proceedings at a later date. The penalty does not prevent criminal prosecution in appropriate cases. The court must be satisfied on the balance of the probabilities that a party has knowingly made a false allegation.
  1. On 2 March 2006 when the Family Law Amendment (Shared Parental Responsibility) Bill 2005 was returned to the House of Representatives from the Main Committee, the then Attorney-General, the Honourable P Ruddock said during the debate on proposed amendments to the Bill the following:
The member for Gellibrand also flagged Labor’s concern that the incidence of using costs within the family law jurisdiction risks turning family law into a costs jurisdiction. I suspect that many parties before our courts at the moment would be very surprised to learn that it is not a costly jurisdiction. The question is: who should pay those costs? In cases where proceedings are the result of a party’s disregard of court orders or of false allegations of violence, the government thinks it only just that costs orders should be able to be made where appropriate against the party responsible.(p 25)
...
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. (p 46)
...
  1. There is little authority in this Court on the interpretation of what is required to satisfy a court that an allegation has been “knowingly made” for the purposes of s 117AB.
  2. I was referred to the decision of Cronin J in Charles & Charles [2007] FamCA 276. At paragraphs 22 and 23, his Honour explained that s 117(1) must be read as subject to s 117AB. I concur with that view.
  3. At paragraph 24 his Honour discussed the word “knowingly” and said:
“Knowingly” imports a serious subjective element into the question. In respect of many findings of fact as in this case, a trial judge determines which of two versions, sometimes diametrically opposed to one another, he or she believes on the balance of probabilities. Such a finding is not necessarily a statement that one version is patently untrue or that a person is lying; it may simply be that one version is more probable than another. For a court to be satisfied that a person knowingly made a false allegation or statement in the proceedings must mean that a court can be comfortable in finding that the person lied. It would not simply then be a balancing act between two versions. To be satisfied that a lie has been told and to so find requires a careful analysis of two things. The first is that the proffered version of fact is untrue but the second is that it is put knowing it to be untrue. A court must then be cautious about such a finding because of the mandatory consequence. The finding must be elevated above the “probable” level set out in s 140(1) of the Evidence Act 1995 to consider the matters contemplated in s 140(2) of that Act. That is, the Briginshaw test applies. [footnote omitted] (original emphasis)
  1. Thereafter his Honour referred to the use of the word “knowingly” in civil proceedings with particular reference to that word in relation to the tort of deceit as discussed by the High Court in Magill v Magill (2006) 231 ALR 27. His Honour also referred to the Revised Explanatory Memorandum, which I have earlier set out and parts of the Attorney-General’s second reading speech. I have earlier, in these reasons, set out the relevant extracts from Hansard.
  2. I was also referred to the decision of Ryan J in Sharma & Sharma (No 2) [2007] FamCA 425 where her Honour considered, among other matters, whether the new provision, which was introduced as part of the suite of reforms in the Family Law Amendment (Shared Parental Responsibility) Act 2006, amended the otherwise discretionary position the Court exercises in respect of costs under s 117. Her Honour explained that the application of s 117AB is mandatory provided the criteria in s 117AB(1) are satisfied. I also concur with her Honour’s conclusions in respect of s 117AB.
  3. At paragraph 13 of her reasons, Ryan J said:
My finding that some of the wife’s allegations are fabrications introduces the mental element which turns a wrong statement into a deliberate falsehood. This means I am satisfied she knowingly made a false allegation or statement. Again this was a central issue. So that there can be no doubt that the wife adopted her complaints and allegations made to police in these proceedings, at paragraph 112 I find:
“At the close of her case, the mother maintained the veracity of each and every allegation made against the father post 30 April 2004. That is, not only that she has accurately reported the children’s complaints but that the father behaved in the manner described”.
  1. The word “knowingly” is considered in Words and Phrases Judicially Defined (4th Edition, Lexis Nexis Butterworths, 2007) at 1313 with reference to various statutes. While many of the examples cited in this text must be read in the context of the statute under discussion, I think the discussion of the meaning of the word by Kellock JA in Sleight v Stevenson [1943] 4 DLR 433 at 441 is helpful in the facts relevant to this appeal. In dealing with a case under a statute pertaining to insurance, his Honour said “I think ‘knowingly’ in the statute is used in the sense that the applicant is in possession of information that what is in fact stated in the application is untrue or does not disclose the truth” (see also Stroud’s Judicial Dictionary of Words and Phrases 7th Edition, Thomson Sweet Maxwell, 2006, at 1449). In other words, I concur with Ryan J there is a conscious mental element involved in the making of a statement.
  2. Section 117C is also relevant to the issues I am required to determine. It provides as follows:
(1)  This section applies to proceedings under this Act other than the following proceedings:
(a)  proceedings under Part VI;
(b)  proceedings under Division 6, 9 or 13 of Part VII;
(c)  proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII.
(2)  If:
(a)  a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and
(b)  the offer is made in accordance with any applicable Rules of Court;
the fact that the offer has been made, or the terms of the offer, must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order.
(3)  A judge of the court is not disqualified from sitting in the proceedings only because the fact that an offer has been made is, contrary to subsection (2), disclosed to the court.
  1. Before commencing my discussion, it is important that I refer to the general principles which govern the broad discretion to award costs under s 117. Those principles are clearly explained in Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 at 315-316 as follows:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.

Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs. (footnote omitted)
  1. The “broad brush” approach to the question of costs is well recognised (see Browne v Green (2002) FLC 93- 115; Robinson & Higginbotham (1991) FLC 92-209 per Nygh J at 78,417).

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