Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

by leave—I move amendments (9) and (10), as circulated in my name, together:

(9) Schedule 1, item 40, page 14 (lines 14 and 15), omit the item.

(10) Schedule 1, item 43, page 14 (lines 27 and 28), omit the item.

The bill proposes to repeal section 117AB, which provides for mandatory cost orders, albeit that some such orders might cover only a portion of the costs where a party knowingly made a false allegation in a statement in proceedings. The explanatory memorandum cites the Australian Institute of Family Studies evaluation and the Family Law Council report as finding that the section operates as a disincentive for disclosing family violence. This is misleading. The Chisholm report alludes to practitioner concern as the basis for its recommendation for repeal, but neither of the major studies cited makes any substantive finding. The Family Law Council report in fact recommends that the provisions should be clarified with an explanatory note or with public education. The Australian Institute of Family Studies evaluation found that 67.7 per cent of respondents disagreed with the proposition that the prospect of an adverse costs order has discouraged allegations of violence or child abuse that are genuinely held and/or likely to be true.

It should be noted that the test proposed in section 117AB is a stringent one. A mandatory costs order could only arise from the evidence that was not proffered in the circumstances or even was given recklessly or without belief. It only applies—and I think this is very important—to knowingly false evidence. If a court was prepared to make such a finding there is no reason why a costs order should not follow. Individual members of the judiciary have confirmed that such false accusations by no means are unknown and that sanctions must apply in such cases.

The courts have provided guidance on the application of the existing provision. In Charles & Charles [2007] Justice Cronin said:

There can be no room for misunderstanding or doubt; objectively, the person making the statement cannot believe the statement to be true.

Recent cases include Sharma & Sharma (No. 2), where a mother was found to have fabricated allegations of abuse against a father and where the alleged victim had vehemently and unequivocally denied the allegation, and Klumper & Klumper, where a father was found to have knowingly made false statements about a mother's parenting capacity and in Hogan and Halverson, where a mother was found to have knowingly made false statements that a child sustained an injury while in his father's care.

Cost orders are made much less routinely in the family jurisdiction than in any other. Sadly, it is clear that some parties can and will make false statements if they perceive an advantage in doing so. Because cost orders are not routine there must be an express disincentive in the act and that is why it is very important that the House pass the amendments as circulated by the opposition, specifically, to make sure that when false evidence has wilfully been given some sanction will apply.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

The government opposes the amendments. The opposition has moved amendments to omit items 40 and 43 of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill, which seeks to repeal section 117AB of the Family Law Act.

Let us look at the evidence supporting the proposed repeal of this section. Professor Chisholm recommended its repeal and in his submission to the Senate inquiry he again stated that the provisions seemed to operate as a disincentive to disclosing family violence and do not appear to have had any beneficial effect. I remind the House that Professor Chisholm had a distinguished period of service as a judge of the Family Court of Australia.

The Family Law Council said that there is no evidence that section 117AB is achieving its purpose of discouraging false allegations of violence. The Australian and New South Wales law reform commissions endorsed the recommendations made by Professor Chisholm and by the Family Law Council. Repeal of section 117AB has strong public support including from the legal profession and key stakeholders in the family law community. The opposition essentially argues that repealing the mandatory cost order provision will open the way for false allegations of violence to be made in court. Again, this is a nonsense. In fact, the Australian Institute of Family Studies, in a report commissioned during the period of the former government, found the lack of confidence in the ability of cost orders to discourage false statements has grown. The opposition has also said that if a court is prepared to make a finding that a party has knowingly given false evidence there is no reason why a cost order should not follow that event. I should say that I could not agree more. I wholeheartedly agree that there should be disincentives to knowingly making a false allegation or false denial in relation to family violence. But the act already provides disincentives to knowingly making a false allegation or false denial in parenting matters through the current power that exists in section 117. Both Professor Chisholm and the Australian Institute of Family Studies found that while there is evidence of section 117AB being applied, cost orders on this basis are rarely sought and rarely made. In fact there have been occasions when the courts have relied on the general power to order costs against a party under section 117 and found that this section is broad enough to deal with false statements, including false allegations and false denials. A case in point is Claringbold v James in 2008, where the court used its existing powers under section 117. In that case Justice Bennett relied on section 117(2A)(c) to make a cost order against a mother who was found to have knowingly made false statements.

Finally, as the opposition keeps raising the work of the Hull committee in 2003, I think it is important to note that mandatory cost orders were not part of the original proposals of the resultant report; in fact, the clause was not to become section 117AB until it was inserted at the suggestion of the House of Representatives Standing Committee on Legal and Constitutional Affairs—and it is significant to note that that recommendation was not supported by the Senate Legal and Constitutional Affairs Legislation Committee. The former government made the decision to continue to include this clause despite there being no statistical data as to the frequency of false allegations and statements noting that courts already routinely make cost orders in the circumstances. Essentially, that begs the question as to why section 117AB was inserted in the first place. We would suggest that it was merely tokenistic, because the court already has sufficient, adequate and proven powers under section 117 of the act. For that reason we oppose the opposition's amendments.

Question put:

That the amendments be agreed to.

The House divided. [15:43 pm]

(The Speaker—Mr Harry Jenkins)

Question negatived.

Bill agreed to.

Bill read a second time.