Charles & Charles

In *Charles & Charles*, the Family Court of Australia was asked to determine an application for costs following earlier judgments regarding parenting and property division. The wife sought costs, relying in part on section 117AB of the *Family Law Act 1975* (Cth), which mandates cost orders against a party who knowingly makes a false allegation or statement in proceedings. The husband did not make a costs application.

The primary legal issue before the court was whether the wife had established grounds for a costs order against the husband, particularly under section 117AB. This required the court to consider whether the husband had knowingly made false allegations or statements, specifically concerning domestic violence, and to assess the overall conduct of the parties and the success of their respective claims in the parenting and property matters. The court also had to consider the general principle that each party bears their own costs, as well as the factors outlined in section 117(2A) of the Act.

Cronin J explained that the threshold for finding that a party "knowingly" made a false statement under section 117AB is high, requiring more than a finding on the balance of probabilities that one version of events is more likely than another. It necessitates a clear satisfaction that the statement was made with knowledge of its falsity, akin to fraud. While the court had made findings preferring the wife's version of events regarding certain incidents of alleged domestic violence, these findings were based on the balance of probabilities and did not reach the stringent standard required to conclude that the husband had knowingly made false allegations. Furthermore, neither party had been wholly successful in the parenting or property proceedings, and the court found no conduct by either party that unnecessarily increased costs.

Consequently, the court dismissed the wife's application for costs. Cronin J found no circumstances that would justify departing from the general rule that each party should bear their own costs, concluding that such an order would not be just in the circumstances of the case.