Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share 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.

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