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Adjusting for violence

Adjusting for violence

By Will Stidston and Elizabeth Mathews

Child Welfare Family Court Marriage Parents Real Property Settlements 

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A recent decision has lowered some of the evidentiary barriers to obtain financial recompense for family violence in a family law matter.

Snapshot:

  • On the 20th anniversary of the landmark case of Kennon & Kennon, development of the law governing relevance of family violence to family law property settlements is reviewed.
  • The law has developed to better reflect the nature of family violence and to assist victims in obtaining financial recompense, but many barriers remain.
  • The recent case of Britt & Britt has significantly lowered the evidentiary barriers to establishing a Kennon style claim.

For many years, incidents of family violence were an irrelevant consideration for determination of a just and equitable alteration of property interests in family law matters pursuant to the Family Law Act 1975 (Cth) (the Act).

In 1997, the decision of Kennon & Kennon (Kennon)1 marked a watershed moment for victims of family violence. In short, the Family Court of Australia held that a victim of family violence could be entitled to an uplift in their property settlement entitlements. However, despite Kennon, it remained practically and legally difficult for victims of family violence to obtain such an adjustment as a result of the strict evidentiary requirements.

In the 2017 decision of Britt v Britt (Britt),2 the Full Court of the Family Court of Australia had cause to consider and, arguably, lower these barriers.

First principles

At trial, the wife in Kennon took the revolutionary step of seeking common law damages arising from assaults during the parties’ five year relationship in addition to a property settlement pursuant to the Act. The application for damages was made under the then valid cross-vesting laws. At the time of trial, the husband had net wealth of approximately $8,700,000 as against the wife’s $54,500.

The trial judge upheld the wife’s claim only with respect to the assaults she was able to particularise, awarding her damages in the sum of $43,000 in addition to her property settlement entitlement of $400,000.

Although the trial judge held that family violence during a marriage could be taken into account in assessing a party’s contributions pursuant to s79 of the Act, he ruled that the family violence had not affected her contributions during the marriage, or to the extent that they had, she had been sufficiently compensated by the damages award of $43,000.

The wife appealed the decision on the basis that, in awarding damages for family violence, the Court ought to consider a series of assaults as a whole, even if they could not be precisely particularised, and award a single amount of damages for the series of assaults, rather than with respect to each proven assault.

The husband appealed on the bases that first, the Court had to be satisfied as to the causal link between the assault and a loss to make an award of damages, which he asserted had not been proven by the wife, and second, that the award of damages was excessive.

On appeal, the majority of the Full Court found that the trial judge approached the case incorrectly, and that family violence ought more properly be taken into account as an issue of contribution pursuant to s79 of the Act rather than by way of a common law claim for damages.

Specifically, it was held that a trial judge is entitled to take family violence into account when assessing the parties’ contributions pursuant to s79 of the Act if there is:3 a course of violent conduct by one party towards the other which occurs during the marriage and which is demonstrated to have either:

a) had a significant adverse impact on that party’s contributions to the marriage or

b) to have made that party’s contributions significantly more arduous that they ought to have been.

The Full Court was, however, cautious to state that the principles enunciated in Kennon ought only apply to “exceptional cases”.

The practical result in Kennon was that the Full Court re-exercised the trial judge’s discretion in this matter and found that the wife’s property settlement ought to be increased to $700,000.

Evolving principles

In 2002, the Full Court was given an opportunity to review the principles enunciated by Kennon. In the decision of S & S,4 the husband appealed a finding of the trial judge to divide the parties’ net property interests equally between the husband and the wife. The husband sought that the property be divided 70 per cent/30 per cent in his favour.

A key factor in the trial judge’s finding that the parties had made equal contributions to the net property available for division was that the wife’s contributions were made significantly more arduous by the husband’s violence.

The Full Court was confronted with inter alia two important questions (among other matters raised by the husband):

  • to be relevant and therefore admissible, did evidence sought to be adduced by the party seeking a financial adjustment on the grounds of family violence need to establish a “significant adverse impact” on the party or that the party’s contributions were made “significantly more arduous”?
  • was an adjustment as contemplated by Kennon limited to those cases encompassing “exceptional” examples of family violence?

Turning first to the latter question, the Full Court approved the trial judge’s conclusion that an adjustment could be made despite the family violence not being of an exceptional nature. Their Honours approved the finding that “. . . the references to ‘exceptional cases’ and ‘narrow band of cases’ occur in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. Our reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’ . . .”5

While this answer was reassuring for parties seeking a financial adjustment on the grounds of family violence, the answer to the former question reinstated a barrier to such a claim. Specifically, the Full Court determined that:

  • a court should generally determine at the outset whether a claim for a financial adjustment by virtue of family violence is likely to be successful
  • for a claim to pass this initial threshold, the party making the claim must have provided the court with evidence which sets out the effect of the family violence on that party’s contributions
  • if such a claim is unlikely to be successful because it does not set out those effects, or they cannot be inferred, then the evidence with respect to family violence in an exclusively financial case is irrelevant and therefore inadmissible.6

Although not referred to directly in the decision, the conclusion effectively summarises ss55 and 56 of the Evidence Act 1995 (Cth) and r10.12(d) of the Family Law Rules 2004 (Cth) which state:

55 Relevant evidence

1. The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

2. In particular, evidence is not taken to be irrelevant only because it relates only to:

a) the credibility of a witness; or

b) the admissibility of other evidence; or

c) a failure to adduce evidence.

56 Relevant evidence to be admissible

1. Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

2. Evidence that is not relevant in the proceeding is not admissible.”

Rule 10.12 Application for summary orders

10.12 A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that . . .

a) There is no reasonable likelihood of success.

This approach, therefore, allowed a court to assess at the outset of a trial whether the written evidence of a party met the evidentiary requirements of Kennon, and if it did not, to then exclude the evidence as inadmissible before it was tested.

It should be noted, however, that this did not sit comfortably with the Full Court’s finding in S & S that the effect of family violence on a party’s contributions (a key limb of the Kennon principles) could be inferred in some cases where it was not clearly stated in evidence. Specifically, the Full Court cited with approval the trial judge’s finding that “. . . the wife’s material, although it refers to some specific acts of violence, does not expressly refer to the impact of the violence on her contributions. It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions. The question in the present case is whether the material on behalf of the wife can be said to fall within that category”.7

Current principles

The principles arising from Kennon and S & S have continued to evolve over the last 20 or so years. In very broad terms, they have expanded to encompass a greater number of factual circumstances. By way of example:

  • In the 2005 decision of Stevens & Stevens,8 the Full Court was faced with a factual matrix in which the wife suffered verbal and physical abuse from the husband approximately once every six months during almost the entirety of their 16-year relationship. In considering the concept of a “course of conduct”, the Full Court held at [65] that: “The term ‘course of conduct’ is a broad one. We do not think that conduct must necessarily be frequent to constitute a course of conduct though a degree of repetition is obviously required . . .”
  • In the 2012 decision of Baranski & Baranski9 the Full Court extended the historic requirement that the family violence must have occurred during a marriage. Specifically, the Full Court concluded that post-separation family violence may also be relevant.

However, many victims of family violence still faced the evidentiary hurdle of leading sufficient “effect” evidence to ensure that their evidence with respect to family violence was deemed admissible.

This issue was resolved in the recent decision of Britt.10 In that case, the parties had been in a relationship for approximately 30 years and had four adult children. At trial, the wife asserted that the husband had committed repeated and severe acts of family violence against her during their relationship and that she ought to receive a contribution-based adjustment as a result.

The trial judge held that much of the wife’s evidence with respect to family violence was inadmissible as:

  • much of the evidence was not in “proper form” and was “just too general” as it used words such as “regularly”, “routinely” and “often”
  • the evidence given by the wife failed to particularise the effect of the violence on the wife’s contributions and was therefore not relevant to a matter in issue.

The balance of the wife’s evidence with respect to family violence was rejected by the trial judge on the basis of adverse credit findings against the wife and the trial judge’s conclusion that, “[t]he wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her”.11

The Full Court rejected the trial judge’s findings on the wife’s evidence as to domestic violence and instead held that: “. . . evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value . . . (at [31]).

”Therefore, in determining the admissibility of the proposed evidence set out above, the primary judge was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. If the evidence could do so – that is, if it was not ‘inherently incredible, fanciful or preposterous’ – it should have been admitted” (at [33]).

The Full Court also confirmed that, in addition to being relevant to a decision as to a Kennon adjustment of contributions, evidence as to family violence can be relevant to:

  • provide context to other evidence
  • provide evidence as to the relationship in existence between the parties, which may explain other actions taken by the parties in their financial relationship or their relationship generally
  • the credibility of each party.12

The Full Court also found that the fact that a party expresses a conclusion in an affidavit does not render that evidence inadmissible, but rather, it is relevant as to weight.13

To address the concerns raised in S & S, the Court further confirmed that evidence can be admitted provisionally at the commencement of a trial, with its admissibility to be determined at the conclusion of a hearing.14

Conclusion

The decision in Britt would seem to expand the previously accepted categories of cases in which evidence of family violence may be relevant and therefore admissible as well as expanding the nature of evidence which may be found admissible. Therefore, it broadens the circumstances in which victims of family violence can seek an adjustment to their property settlement entitlements.

As a result, practitioners can expect family violence to be raised more frequently in financial cases. This will require a more detailed consideration as to the merits of the evidence, rather than simply relying on evidentiary rules to exclude that evidence from consideration.

Exactly how this will affect the quantum of property settlements in the future, however, remains to be seen. n

 

Will Stidston is a senior associate at Barry.Nilsson. Lawyers and an LIV accredited specialist in family law. Elizabeth Mathews is an associate at Barry.Nilsson. Lawyers and an LIV accredited specialist in family law.

 

1. Kennon & Kennon (1997) FLC 92-757.

2. Britt & Britt [2017] FamCAFC 27 (27 February 2017).

3. At 84,294 – 84,295.

4. S & S [2003] FamCA 905. Also reported as Spagnardi & Spagnardi.

5. At [46].

6. At [37] to [40], [47]-[48].

7. At [45].

8. (2005) FLC 93-246 at 80,043.

9. (2012) 259 FLR 122.

10. Britt & Britt (2017) FLC 93-764.

11. At [22] of the appellate judgment.

12. See [34]-[37].

13. See [38], [40]-[41].

14. See [45], [50]-[55]


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