Finch and Finch and Ors (Costs)
[2012] FamCA 543
FAMILY COURT OF AUSTRALIA
| FINCH & FINCH AND ORS (COSTS) | [2012] FamCA 543 |
| FAMILY LAW - COSTS – where mother knowingly made a false allegation – where s 117AB applied – where the circumstances do not justify an order that the mother pay all of the other parties’ costs – where an order that the mother pay some of the costs of the other parties is made |
| Family Law Act 1975 (Cth) s 117AB, s 117(2), s 117(2A), Evidence Act 1995 (Cth) s 128, s 140(1), s 140(2) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Charles v Charles (2007) FamCA 276 Sharma v Sharma (No. 2) [2007] FamCA 425 |
| APPLICANT: | Mr B Finch |
| RESPONDENT: | Ms M Finch |
| INTERVENOR: | Ms D Finch and Mr R Finch |
| INDEPENDENT CHILDREN’S LAWYER: | Doris Chan |
| FILE NUMBER: | BRC | 9150 | of | 2008 |
| DATE DELIVERED: | 17 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 30, 31 May, 1 & 2 June 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Pearson Pearson Law |
| COUNSEL FOR THE RESPONDENT: | Mr R Haddrick |
| SOLICITOR FOR THE RESPONDENT: | Richard Gray & Associates |
| SOLICITOR FOR THE INTERVENOR: | Mr Pearson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A B George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Office Queensland |
Orders
That the respondent mother pay the sum of $3,000 to the interveners towards the costs and outlays of the interveners and the applicant, such sum to be paid to them within three calendar months of the date of this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch and Finch & Ors (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 9150 of 2008
| Mr B Finch |
Applicant
And
| Ms M Finch |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 March, 2012 I made orders in the parenting proceedings between these parties and published my reasons for judgment.
In those reasons for judgment, I observed that I was mandated pursuant to s117AB of the Family Law Act 1975 to make an order that the mother pay some or all of the costs of the other parties in the proceedings. That was because the mother admitted at the commencement of her oral evidence at the trial that she had previously sworn evidence in the proceedings that she knew, at the time she swore it, was false.
I directed that submissions intended to be made in respect of the determination of the order as to costs to be made against the mother be made in writing and filed and served within specified periods of time. Written submissions were filed on behalf of the applicant father and the intervening grandparents within time as directed. Written submissions were filed on behalf of the mother well outside the directed time.
For some reason unknown to me, the submissions filed on behalf of the applicant and the interveners were only brought to my attention after the submissions filed for the mother were filed. In the circumstances of this matter, I do not consider there to be any prejudice caused to the applicant and the interveners by my reading and considering the submissions filed for the mother although they were filed outside the time directed by me.
The Submissions for the Applicant and Interveners
Attached to the written submissions filed for the applicant and interveners are copies of invoices showing they incurred legal fees totalling $7,400 in the proceedings. Further, there is attached a copy of a letter from the Town O Contact Centre showing that the applicant and interveners paid $400 in total for visits that took place at the centre up to the time that my orders were made, after which supervision of visits was no longer required. In those submissions, it is also asserted that the applicant and interveners incurred costs in respect of the fuel used in their travel totalling $1,920. It is also asserted that they paid $1,500 for a parentage test in respect of the subject child as a consequence of the false allegation made by the mother that the paternal grandfather might be the biological father of the subject child.
For the applicant and interveners, it is submitted that an order should be made pursuant to s117AB that the mother pay the applicant’s and the interveners’ costs on an indemnity basis as it is an “appropriate case” in which to do so, the mother’s false allegation having led to:
(a)the matter being transferred to the Family Court from the FMC;
(b)the transfer between the Courts having clearly delayed the matter proceeding to final hearing; and
(c)the applicant and interveners being restricted to supervised time with the child for a significant period of time.
The Submissions for the Respondent
Although I have already determined, on the mother’s own admission, that she knowingly made a false allegation against the paternal grandfather and that, therefore, the mandatory requirement to make a costs order against the respondent mother imposed by s 117AB (which, I add, has now been repealed as from 7 June, 2012) was invoked, counsel for the mother effectively submits I should revisit that finding.
He submits that use of the term “knowingly made” in s 117AB(1)(b) effectively imports two requirements before its mandate is invoked. He submits that, firstly, the Court must be satisfied that the maker of the false allegation is seized of the knowledge that the facts are untrue and that, secondly, the maker of the allegation must also make the allegation “of their own free will, and without undue influence”.
He submits that as the mother’s evidence was that she made the false allegation “in circumstances where she did not believe that she had free will to not make the …. allegation” that the Briginshaw test requires the Court to have evidence before it that would clearly satisfy it that the mother made the false allegation “of her own free will, and without undue influence” before the finding that triggers the mandatory application of s 117AB could be made.
He went on to submit, if I did not accept that primary submission, that the mother’s evidence about her former solicitor’s involvement, untested as it was, mitigates against more than a modest sum being ordered in costs. In addition, he submitted, that I would be satisfied that the interveners were always going to continue to press their application to the conclusion of the trial regardless of the false allegation and that I would not find that the false allegation itself prolonged the litigation to such an extent that a significant costs order is required. He submitted, that I would not find that the false allegation alone was the reason why the FM transferred the matter to this Court as the interveners have submitted.
My Findings
With respect to counsel for the mother, having already made a finding that the respondent mother “knowingly made a false allegation … in the proceedings” and determined that the s 117AB mandate applies, I am of the view that consideration of whether I erred in respect of that finding would be a matter for appeal. I do not consider that I can revisit that finding.
However, that said, I will make some observations in respect of the primary submission made by counsel for the mother.
Parliament enacted the relevant legislative provision mandating a costs order where the Court is satisfied that “a party to the proceedings knowingly made a false allegation or statement in the proceedings.”
Cronin J said in Charles v Charles (2007) FamCA 276 when discussing the application of s 117AB:
24.“Knowingly” imports a serious objective 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 could be comfortable in finding that the person lied. It would not simply 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 levels 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.
26.“Knowingly” is unequivocal. There could be no room for misunderstanding or doubt; objectively, the person making the statement cannot believe the statement to be true.
I respectfully agree with what his Honour there said.
This was not a case though where I had to weigh up the evidence and decide, on the balance of probabilities whether a statement made by the mother was true or false. In this case, as I have already observed, the mother, after having been granted a certificate pursuant to s 128 of the Evidence Act 1995 (Cth), admitted that she had previously given sworn evidence in an affidavit in these proceedings that she knew at the time was false. It was never asserted that she lacked cognitive capacity at the time she made the false allegation in an affidavit. She merely asserted that she felt compelled and under pressure to make the false allegation. Clearly, in my view, the finding that she “knowingly made a false allegation or statement in the proceedings” had to be made.
With respect, I do not accept the submission that the term “knowingly made” requires the Court to be satisfied that the allegation that is found to be false was not just made by the person whilst seized of the knowledge that the facts asserted were untrue, but that it was also made with the maker’s own “free will, and without undue influence”. That, in my view, would be importing additional requirements into the legislative provision that Parliament did not deign necessary to include.
Section 117AB does not provide for any exceptions to the mandatory consequence it imposes if the Court is satisfied of the requisite fact. It does not provide “defences” such as the age-old defence of duress that is known to the criminal law where the defendant may be found to lack the intent necessary to be convicted of an offence because in doing the act in question he or she acted under the subordination of threatened death or serious physical harm. Nor does it provide for relief from the mandatory consequence it imposes if undue influence from a third party is established. In the absence of such express inclusion in the legislative provision, I cannot accept that the meaning of the term “knowingly made a false allegation or statement” includes, by implication, any such defence or relief.
That is not to say that the circumstances under which a false allegation is made in proceedings cannot be taken into account in determining the quantum of the costs order that must be made.
Clearly, s 117AB confers discretion on the Court, which must be exercised judiciously, in respect of the determination of the particular costs order that must be made. As Ryan J pointed out in Sharma v Sharma (No. 2) [2007] FamCA 425, s 117(AB) does not expressly include any guidelines in respect of how the discretion to order costs is to be exercised and “[t]he factors which ordinarily influence the Court’s 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.” Nevertheless, just as Ryan J held in that case, I agree that the matters set out in s 117(2A) to be considered when determining what, if any, order should be made under s 117(2), are useful to consider in determining the quantum of the s 117AB costs order that is to be made.
Matters that I consider particularly relevant to the determination in this case are:
(i)That the false allegations were heinous and would have caused the applicant and the interveners an enormous amount of anguish for a significant period of time;
(ii)That the false allegations were the probable principal cause of the interveners’ time with the child being required to be supervised on an interim basis and probably the basis upon which they were transferred to this Court from the FMC;
(iii)That the mother did, through her counsel, make it known at the start of the trial that she did not maintain the truth of the allegations she had previously made against the paternal grandfather and admitted that they were false when she gave her evidence during the trial. By doing this she did show some apparent remorse for her wrongdoing and significantly narrowed the issues for determination and shortened, in my view, the length of the trial albeit only doing so at the start of the trial and not in a more timely fashion;
(iv)That the mother’s evidence that she felt compelled and under pressure from her former solicitor to give the false evidence was not tested or challenged to any degree. Having said that though, I am still left with a high level of doubt as to the actual honesty of the mother’s evidence about her former solicitor’s actions in respect of this matter.
(v)My view that the interveners and the applicant would have pursued their applications for parenting orders to trial regardless of whether the mother had made the false allegation or not and regardless of whether she had admitted it was false earlier than she did;
(vi)The actual outcome of the parenting orders proceedings as determined by me, particularly the fact that the interveners and applicants were unsuccessful in obtaining orders that the child live with them, which was their primary objective;
(vii)The financial circumstances of the parties. I am satisfied that the interveners are in a better financial position to the mother;
(viii)The fact that any order that I make against the mother to pay costs to the interveners and applicant will impact upon the mother’s financial capacity to support the child where she has already expended a substantially greater sum than the interveners and the applicant in the conduct of these proceedings to secure parenting orders that the child continue to live with her;
(ix)That the interveners spent $1,500 on a parentage test consequent upon the false allegations being made, that the mother did not participate in. They also spent $7,400 on legal costs, including, in particular, $1,000 on having their written submissions in respect of this costs issue prepared for them;
(x)That s117AB was inserted into the FLA clearly for deterrence purposes.
Considering all of those matters, I do not accept the submission that this is an appropriate case in which to award indemnity costs. I do not find that the circumstances are so “exceptional” that the mother should pay for all of the interveners and applicant’s costs on an indemnity basis.
Nor do I consider this a case where it is appropriate to order the mother to pay all of the costs of the applicant and the interveners on the usual party/party basis. I consider the proper order to make in all the circumstances to be one that requires the mother to pay the sum of $3,000 towards their costs. That particularly covers the cost of the parentage test they paid for, the costs of having the written submissions prepared for them and the costs they paid for the supervision of their time with the child. That will be the order I make and I will allow the mother three months within which to pay it.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 July 2012.
Associate:
Date: 17 July 2012
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