BARBERIS & BARBERIS
[2019] FamCA 386
•19 June 2019
FAMILY COURT OF AUSTRALIA
| BARBERIS & BARBERIS | [2019] FamCA 386 |
| FAMILY LAW – PROPERTY – compromise of parenting application – hard swearing parenting case – oath-on-oath conflict of evidence – resolution of parenting. FAMILY LAW – FAMILY VIOLENCE ALLEGATIONS – none proved – no evidence linking allegations of family violence to contributions. |
| Evidence Act 2004, s 140(2)(c) Family Law Act 1975, ss 75, 79, 117 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 In the Marriage of Doherty (1995) 20 Fam LR 137 In the Marriage of Soblusky (1976) 2 Fam LR 11,528 In the Marriage of Townsend (1994) 18 Fam LR 505 In the Marriage of Waters & Jurek (1995) 20 Fam LR 190 In the Marriage of Zappacosta (1976) 2 Fam LR 11,214 |
| APPLICANT: | Mr Barberis |
| RESPONDENT: | Ms Barberis |
| INDEPENDENT CHILDREN’S LAWYER: | Ms M Lonergan |
| FILE NUMBER: | MLC | 7143 | of | 2018 |
| DATE DELIVERED: | 19 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 13, 14, 15, 16, 23, 24 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms M Smallwood |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr A Robinson |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr C Arnold (on parenting) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Lonergan (on parenting) |
Orders
On or before 4 pm on 12 July 2019 the parties bring in a minute that gives effect to these reasons.
All applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barberis & Barberis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7143 of 2018
| Mr Barberis |
Applicant
And
| Ms Barberis |
Respondent
REASONS FOR JUDGMENT
Introduction
Following a six day trial on parenting issues, the applicant and respondent agreed on final orders for the parenting of the only child of the marriage thereby leaving only property issues to be determined by the court.
The assets to be taken into account were identified in the parties’ openings as being two parcels of real estate, cash at bank, mutual partial property settlements along with superannuation, making in total $2 959 000 worth of assets.
The respondent contended that the assets should be divided as to 65 per cent in her favour with 35 per cent in the applicant’s favour. The applicant contended that assets should be divided as to half in his favour and as to the other half in the respondent’s favour.
Synopsis
For the reasons that follow I reject the respondent’s contentions that the assets should be divided in the proportions she asserted. In my view, the applicant’s contentions are correct and the assets should be divided as to half to the applicant and as to the other half to the respondent. As Ms Smallwood of counsel pointed out, that division has the effect of requiring the respondent to pay the applicant the sum of $44 000.
Relevant factual setting
The applicant was born in 1971. The applicant is an Australian and Country B citizen.
The respondent was born in 1978 in Country B and is too an Australian and Country B citizen. The respondent migrated to Australia in 2000. On arrival in Australia in July 2000 the applicant and the respondent commenced living together.
In 2000 the applicant and the respondent married.
The parties have one child of the marriage born in 2013.
The parties finally separated on 30 April 2018.
The parenting aspect of this case
Prior to the resolution of the parenting aspects of this proceeding, this case was extremely hard-fought with the father resisting allegations of child abuse. It is not necessary to descend to the detail of that for present purposes except to make observations about witness credibility to the extent that it has a bearing on the remaining issues concerning property that I need to determine.
The assets
The assets relevant to the property division were synthesised by Ms Smallwood of counsel. They were as follows –
Real estate Value
a)C Street, Suburb D $ 820 000
b)E Street, Suburb F $1 225 000
Cash-at-bank
c)NAB account – trust account $ 320 000
d)CBA account – respondent’s $ 179 000
e)NAB account – applicant’s $ 18 000
Part-property settlement
f)to applicant $ 50 000
g)to respondent $ 50 000
Superannuation
h)applicant’s $ 230 000
i)respondent’s $ 73 000
Having regard to the relatively few assets to be considered, it seemed to me to be most expeditious to address the competing contentions advanced by the parties in the specific context of the assets under consideration.
Before turning to those issues, it is necessary to say something about the propositions of law that apply.
Applicable legal principles
It is well established that orders altering property interests of parties may only be made if the court is persuaded that pursuant to s 79(2) of the Family Law Act it is just and equitable to make those orders. Pursuant to a different sub-section of s 79, namely s 79(4) the court must take into account the matters there set out in considering what orders, if any, should be made. The High Court’s decision in Stanford v Stanford[1] held that s 79(2) must not be conflated with s 79(4). In some instances, that may have the consequence that after taking into account the matters recorded in s 79(4) it may nevertheless not be just and equitable to divide the assets.
[1] (2012) 247 CLR 108
The first task in any application for an order adjusting property interests on the basis that it is just and equitable to make such an order is the identification of the parties’ legal and equitable interests. In Stanford v Stanford, the High Court held that it cannot be assumed that the parties’ rights to or interests in marital property are or should be different from those then existing. Nor can it be assumed that one or other of the parties has an entitlement to have the parties’ property divided by reference to the matters enumerated in s 79(4). In Stanford v Stanford the High Court recognised that commonly it will be just and equitable for the property rights of the parties to be altered for the simple reason that the breakdown in their relationship ends their fiscal unity and that such breakdown deprives them of the common use of their property that by marriage they enjoyed. The Full Court adopted a similar approach in Bevan & Bevan.[2]
[2] (2013) 49 Fam LR 387
Here, the parties separated on 30 April 2018. They thereby terminated their fiscal unity.
The process of evaluating the proper orders to be made involves a consideration of the matters enumerated in s 79(4). The court is required to identify and assess the parties’ contributions within the meaning of s 79(4)(a)–(c). The court is then required to take into account the matters referred to in s 79(4)(d)–(g) as well as the matters in s 75(2).
It is well settled that the court ascertains the value of property at the date of the trial. The authorities on point include In the Marriage of Zappacosta,[3] In the Marriage of Myerthall,[4] and In the Marriage of Waters,[5] to name but a few.
[3] (1976) 2 Fam LR 11,214
[4] (1977) 3 Fam LR 11,324
[5] (1981) 6 Fam LR 971
The High Court held in In the Marriage of Mallet[6] that no presumption exists of an entitlement to equal division of assets.
[6] (1984) 156 CLR 605
It became necessary to take each asset in turn. Both parties did that in their final written submissions although a global consideration is often employed.
Both parties contended in their final written submissions that the applicant should receive the land and dwelling at C Street, Suburb D. It was valued at $820 000.
Both parties agreed that the wife should receive the land and dwelling at E Street, Suburb F. It was valued at $1 225 000.
Patrial property distributions
Each party received a partial property distribution of $50 000. That much was not controverted.
However, the respondent contended in written submissions that since separation, the respondent had been required to draw on the money in her private resources including the money disbursed to her as a partial property settlement
It seemed to me that once the partial property distributions had been made each party was free to expend that sum in such manner as that party considered appropriate. I decline to accede to the suggestion made on behalf of the respondent in paragraph 2.6 of her written submissions.
Alleged ownership of land in Greece.
The respondent spent some time developing a contention that the applicant owned real estate in Country H. The applicant denied the suggestion. No evidence was adduced of ownership of land in Country H by the applicant. No basis existed for the suggestion. No street address was given nor documentation evidencing ownership by the applicant of any land in Country H. I was not persuaded that the applicant owned land in Country H, whether legally or beneficially. I reject the submission in paragraph 2.10 of the respondent’s submission that I should prefer the respondent’s evidence about ownership of land in Country H. No factual basis existed for that submission. It should not have been made.
Amounts exhausted on legal fees
The respondent contended that the amount she has expended on her own solicitor’s costs should be brought to account and that the $90 000 she had paid to date on account of her own legal fees should be paid from capital.
Such a contention ignores the tenor and effect of s 117 of the Family Law Act.
Ms Smallwood relied on the decisions in NHC v RCH[7] as well as Vass & Vass.[8] She contended that those authorities have held that a pre-emptive distribution of assets for the benefit of one party required that those assets be taken into account, irrespective of whether or not the asset is in existence at the date of the trial. Helpful as those authorities may be, the principle underpinning them emerges from the recognition that the funds existed prior to separation and that both parties had an interest in those funds. The concept was canvased in In the Marriage of Townsend[9] as well as in NHC v RCH. In the latter decision, the Full Court (Finn, Kay & May JJ) discussed the use of funds in which both parties have an interest in payment of the one party’s legal fees. In that event, the payment of those fees is regarded as a premature distribution of funds with the consequence that the amount of those funds must be brought to account in ascertaining the value of the totality of the assets. Curiously, that decision was not referred to in the two subsequent decisions of the Full Court on point, namely, Vass & Vass and Calder & Calder.[10]
[7] (2004) 32 Fam LR 518
[8] (2015) 53 Fam LR 373
[9] (1994) 18 Fam LR 505
[10] (2016) 56 Fam LR 1
It seemed to me that in reality the respondent was endeavouring to mount an argument to the effect that she expended significant sums of money in legal fees and, despite her thereby depleting the assets in this case for her own benefit, the sum so expended should be included in the totality of assets to be divided. I reject that argument for several reasons. Let me catalogue them–
a)the money is spent – it no longer exists in the hands of one of more of the parties to this litigation;
b)the money so spent does not form part of the existing legal and equitable interests of the parties in the property;
c)the decision of the High Court in Stanford v Stanford, especially the observations of the plurality at paragraph [37] of their Honour’s reasons bind me, consistent with the observations of Brennan J of the High Court of Australia in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd;[11] and
d)when applying ordinary common law and equitable principles to the identification of existing legal and equitable interests of the parties in property, the sums expended by the respondent in the payment of her own costs do not presently exist.
[11] (1988) 165 CLR 107, 129–130
I agree with Ms Smallwood’s arguments that the sums expended by the respondent in legal costs do not form part of the existing assets to be divided. The respondent expended those sums for her exclusive benefit. Those funds have long gone.
Whatever may be the current balance of CBA account …33 falls for division, but not otherwise.
Similarly, in relation to NAB account …16, the current balance in that account must be divided.
Superannuation
So far as identifying assets was concerned, no dispute emerged about the parties’ respective superannuation amounts. The applicant held $230 000 and the respondent held $73 000.
Before addressing the matters canvassed in s 79(4) of the Family Law Act, it is necessary to make certain observations about the proper approach to be adopted in the resolution of disputed factual matters. In this case, in the property aspects as well as in the parenting aspects a large number of disputed facts fell for my determination.
Proper approach in resolving disputed facts
First of all, as the trial judge I enjoyed all of the advantages of which Kirby ACJ spoke in Galea v Galea.[12] There, the acting chief justice identified advantages that included –
a)hearing the evidence in its entirety;
b)hearing and seeing all the evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[12] (1990) 19 NSWLR 263
I was also able to observe demeanour of the key witnesses, a fact that provided a considerable advantage as was reflected in an array of cases including Coghlan v Cumberland,[13]Dearman, Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle,[14] Paterson v Paterson,[15] Warren v Coombes,[16] Brunskill v Sovereign Marine and General Insurance Co Ltd,[17] Jones v Hyde,[18] Galea, Abalos v Australian Postal Commission,[19] Devries v Australian National Railways Commission,[20] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation),[21] Fox v Percy[22] and Husain v O & S Holdings (Vic) Pty Ltd.[23]
[13] [1898] 1 Ch 704.
[14] [1927] AC 37.
[15] (1953) 89 CLR 212.
[16] (1979) 142 CLR 531.
[17] (1985) 59 ALJR 842.
[18] (1989) 63 ALJR 349.
[19] (1990) 171 CLR 167.
[20] (1993) 177 CLR 472.
[21] (1999) 73 ALJR 306.
[22] (2003) 214 CLR 118.
[23] [2005] VSCA 269.
Counsel for the respondent was particularly trenchant in his criticism of the applicant. That criticism was unfounded. He said the following –
It is submitted that the husband was a most unimpressive witness who was prepared to lie, both on oath in his affidavits, and, after his affirmation, in the witness box. He refused to answer questions directly on many occasions and sought instead to simply conduct a monologue about his preferred topics of conversation.
At the outset let me say that those submissions were baseless. I reject the submission that the applicant lied. The applicant’s legal representative used phrases such as the applicants’ “preparedness to misrepresent the truth”, to “deliberately obfuscate” and to “ignore clear evidence to the contrary”. Those submissions may well be open in an appropriate case but this was not such a case. Cross examination of the applicant began curiously with an attack on the applicant’s employment history. Far from the applicant’s answers revealing some “preparedness to lie”, the applicant’s evidence revealed a sorry episode in the applicant’s employment and the criticism levelled at the applicant was not substantiated by his actual employers at the relevant time. It was said that the witness Mr G somehow demonstrated the falsity of the applicant’s account of his employment history. Mr G was not called to give evidence. That person’s evidence was not tested and in any event Mr G gave evidence about matters wholly peripheral to the main issues in this case. Then the respondent’s legal representative endeavoured to contend that the conveyancer Mr J somehow demonstrated the unreliability of the applicant’s evidence.
I did not draw from the evidence of Mr G and Mr J proof of the falsity of the applicant’s evidence. Nor did I assess the overall credibility of the applicant as having been rendered unreliable by reason of the matters given in evidence by the witnesses Mr G and Mr J. It must not be forgotten that it is squarely within the function of the trial judge to form an assessment of the veracity of a witness. Lest authority for that proposition be required, it is found in the decision of High Court in Lovell v Lovell,[24] embraced by the Full Court of this court in In the Marriage of Scott.[25] Demeanour is relevant in assessing witness credibility but I have not relied solely on witness credibility. Even unchallenged evidence may be accepted but if it does not go to a fact in issues then the utility of that unchallenged evidence diminishes. To the extent that unchallenged evidence addresses a fact in issue, it is long established that unchallenged evidence need not be accepted if it is inherently incredible or inherently improbable. Cases that stand for that proposition include Precision Plastics Pty Ltd v Demir,[26] Ellis v Wallsend District Hospital,[27] Levinge v Director of Custodial Services[28] and Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation.[29]
[24] (1950) 81 CLR 513
[25] (1994) 17 Fam LR 420
[26] (1975) 132 CLR 362
[27] (1989) 17 NSWLR 553
[28] (1987) 9 NSWLR 546
[29] (1983) 1 NSWLR 1
It may fairly be said that in respect of certain factual matter, mostly related to parenting, the applicants’ responses to questions were imprecise. To that extent counsel for the respondent made a valid point. Yet in my view that did not render the applicant a liar nor was I willing to characterise the applicant as a “most unimpressive witness” as the respondent’s counsel invited me to do. In my view he was honest. To the extent that his answers to questions put to him in cross examination were akin to a monologue, the reason may lay in the question or the failure to control the witness. It must not be forgotten that the applicant faced appalling allegations of his having sexually interfered with his child. The respondent maintained her application for sole parental responsibility up to the moment on the sixth day of the trial that, by consent, orders for equal shared parental responsibility were made. Inferentially, the respondent abandoned her very serious allegations against the applicant. Faced with those allegations, the applicant could be expected to behave with caution when cross examined. I did not construe his responses to questions put in cross examination as indirect or even defensive. Nor did I take him to be obfuscating in his evidence. The criticism of his evidence to questions put in cross examination was not borne out.
Conversely, I did not reach the same conclusion about the respondent. She was highly qualified academically, having been conferred with a Doctor of Philosophy degree. Accepting that the English language was not her first language she was perfectly fluent when giving viva voce evidence. Her speed of response to questions put in cross examination indicated to me that she not only fully understood the proposition put to her but also that she had no difficulty in hearing the question. That last point was relevant to submissions put on her behalf to the effect that by reason to ear damage she sustained from the applicant, her hearing capacity was compromised. My consideration of that issue is canvassed below.
In my view the respondent did not always give first hand evidence on matters solely within her direct knowledge. Instead, she was willing to rely on information derived from others, demonstrating to me that she was not a careful and considered witness. That had the consequence that I was required to closely examine what she said before accepting its accuracy or validity.
Ms Smallwood submitted, correctly in my view, that credit was relevant only to a limited extent so far as the property aspects of this case concerned. I agree. Parenting issues were resolved. The bitter oath-on-oath disputation that arose in this case was mainly in the context of parenting.
In my view the respondent formed an unshakeable view that the applicant had sexually violated their child and thereafter she became convinced that he was not to be trusted in any way. The respondent was characterised by Ms Smallwood as manipulative. I am unable to say whether the respondent was manipulative. However, she was obsessive and uncompromising. She was willing to accept as true (without question) information from the witness Mr G and from the person who performed some supervised time. That struck me as odd as the respondent was a qualified psychologist. She corresponded with her child’s kindergarten in a manner that was extremely cavalier about very serious allegations of the applicant’s guilt of indecent assault when that was untrue. It was troubling that a professional person who occupied a position of trust, confidence and respect, was so carefree with untrue information. Ms Smallwood submitted that such behaviour demonstrated that the respondent used false information invented by her to influence others that the applicant was a sexual abuser.
There is considerable force in that contention
That is not to say that the respondent was not to be accepted in all of her evidence. However, where her evidence conflicted with the evidence of the applicant on an outstanding matter in issue, I have preferred the applicants’ evidence over the contradicting evidence of the respondent.
Contributions
The evidence revealed that the applicant brought real estate to the relationship having an unencumbered valued of $50 000.
The applicant said his parents provided him in 2003 with $30 000, essentially as a gift. The sum of $30 000 was a disputed sum. I prefer the evidence of the applicant on point. Let me explain.
The applicant gave evidence that the sum of $30 000 that he contributed was made up as to $17 000 in the form of a bank cheque and the balance of $13 000 in cash. The respondent accepted that the sum of $30 000 had been paid. Yet she said that she, not the applicant, paid the sum of $30 000 and the payment took the form of a dowry in cash. She said she delivered $30 000 to the applicant in cash at the commencement of the relationship. She said the sum of $30 000 was in cash that she brought into Australia from Country B. She said she carried the cash in two envelopes. She said it was all in one hundred dollar notes. She gave evidence that the $30 000 was not banked because, so she said, the applicant did not want the money banked on the basis that banking it affected his tax position. She gave a seemingly contradictory version of events in her case outline where she said the money was deposited into a K Bank mortgage account. She said that when travelling to Australia from Country B she placed the cash in her luggage rather than carrying it on her person. She said she did not declare the sum when clearing immigration.
The respondent’s brother gave evidence about the sum of $30 000. The brother said the money was available in Country B in Australian currency because persons in the taxi industry in Country B used Australia currency so $30 000 in one hundred dollar notes was available. Ms Smallwood said such a proposition was “frankly beyond belief”.
Ms Smallwood was emphatic in her submission that the respondent’s evidence concerning her payment of $30 000 was a fabrication. She said –
a)if any validity existed in the suggestion that the respondent’s uncle, a man of wealth from the USA, was involved in amassing the $30 000, it was a simple enough task for the uncle to electronically transfer the money to Australia;
b)physically travelling with $30 000 in cash in luggage was foolhardy;
c)the notion that the respondent’s brother drove to Country B taxi drivers collecting $30 000 in Australian cash on the black market was without a sensible basis; and
d)the evidence of a dowry was not to be accepted.
I find it improbable that the $30 000 was brought to Australia in the manner alleged by the respondent. It is equally improbable that the sum of $30 000 in one hundred dollar Australian notes was obtained from Country B taxi drivers.
I do not accept the respondent’s contention that she made an initial contribution of $30 000.
Contributions throughout the marriage were essentially equal, a point made in paragraph 17 of the respondent’s case outline. Ms Smallwood made no submission to the contrary.
Contributions following separation were finely balanced. It must be acknowledged that the respondent enjoyed living in the former matrimonial home, free of encumbrance with the child of the marriage. That meant the respondent had not incurred any expense for accommodation since separation.
The respondent asserted that she undertook improvements by installing security devices. That was a submission unsupported to any degree as no valuation evidence was adduced by which it could be concluded that those improvements enhanced the value of the property and if so to what extent.
The applicant has met child support dues since separation. Those have amounted to $250 after tax per week.
The applicant has paid board since separation.
Supervised time for the father since separation has been considerable, the amount being met jointly.
Prior to separation the respondent earned approximately $90 000 per annum. The applicant earned $110 000. Since separation the respondent has not been required to pay rent.
The respondent urged me to make an allowance for the fact, so she said, that family violence made her contributions more arduous. No evidence of any proved family violence that impacted on the earning capacity of the respondent was given.
Family violence allegations
The relevance of family violence (or “domestic violence” as it was termed in the 1997 Full Court decision of In the Marriage of Kennon)[30] has deep roots in family law jurisprudence concerning the division of assets under s 79 of the Family Law Act. Soon after the Family Law Act commenced operation on 5 January 1976, early decisions on point emerged such as the decisions in In the Marriage of Soblusky[31] and In the Marriage of Ferguson.[32] In Soblusky the Full Court considered the relevance or otherwise of the conduct of the parties including violent conduct in the division of assets. Yet in Ferguson the Full Court held that conduct causing the breakdown of the marriage was not relevant in a consideration of the administration of the financial provisions of the Family Law Act. However, in that case Watson and Wood SJJ held that conduct of a party to the marriage was relevant if the conduct produced consequences which diminished or destroyed the property of the parties or the effect of the conduct resulted in the value of the property being diminished. Further, in Barkley & Barkley[33] Carmichael J was concerned with the economic consequences of the husband in that case where, immediately prior to separation, the husband assaulted the wife causing her total deafness in one ear.
[30] (1997) 22 Fam LR 1
[31] (1976) 2 Fam LR 11,528
[32] (1978) 4 Fam LR 312
[33] (1976) 1 Fam LR 11,554
For some time the preponderance of authority favoured the view that domestic violence was relevant to a claim under s 79 of the Family Law Act only where that violence was causally linked to a direct financial consequence. In 1995 the learning ebbed in a different direction with the decision in In the Marriage of Waters & Jurek.[34] That case concerned a 22 year marriage. Judgment was given on 15 September 1995. Two months later, a different Full Court in In the Marriage of Doherty[35] decided again the relevance of domestic violence in a s 79 claim. It must be said that Fogarty and Baker JJ were members of the Full Court in Waters as well as in Doherty. In Doherty, Baker J held and Forgarty and Hannon JJ agreed that the husband’s domestic violence caused the wife’s contributions as home make to increase and the husband’s contributions to diminish.
[34] (1995) 20 Fam LR 190
[35] (1995) 20 Fam LR 137
In Kennon the plurality (at 24) referred to a marked changes in perceptions, both legal and social, about domestic violence and its impact. The plurality said it was appropriate to give effect to those changed perceptions. The plurality was keen to prevent a floodgates argument so it spoke of the circumstances in which domestic violence may be relevant as being exceptional. Fogarty and Lindenmayer JJ expressed the position in the following terms –
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
The court went on to say the following –
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson ) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
Thus, at an evidentiary level, three matters needed to be proved by the person asserting the existence of family violence, or as it was then called, domestic violence. First, the violence had to be shown as having occurred during the course of the marriage. Next, it had to be shown that the family violence had a discernible impact on the contributions of the other party. Finally, it had to be shown how the court was to quantify a party’s capacity to contribute.
Early hesitations about the impact of domestic violence upon the assessment of contributions shifted, as were apparent in Soblusky and Ferguson, to the expressions in Kennon about it being exceptional to take into account domestic violence in any assessment of contributions. By 2003 the Full Court stated there was “no doubt” that domestic violence may be a relevant factor in assessing contribution. That emerged from S & S[36] (Kay, May & Carter JJ). Likewise, in In the Marriage of Hill,[37] a differently constituted Full Court adopted the Kennon formulation and concluded that no evidence supported the trial judge’s reduction in the assessment of the wife’s contributions on account of her conduct or behaviour. The Full Court highlighted the need for precise evidence about the role each party played in the course of the marriage and the contributions each made to the marriage.
[36] [2003] FamCA 905
[37] (2005) 32 Fam LR 552
It is now accepted beyond argument that violence perpetrated by one party to the other party of the marriage may be taken into account in assessing contributions. So far as the evidentiary burden in proving domestic violence is concerned, s 140(2)(c) of the Evidence Act provides that the gravity of the matters alleged may be taken into account in deciding whether the court is satisfied that the allegation has been proven. In Whelan & Whelan,[38] Watts J adopted that approach and expressed it helpfully in the following way –
The wife asserts incidences of violence perpetrated by the husband against her. In a civil proceeding, a court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (s 140(1) Evidence Act 1995 (Cth)).
The gravity of the matters alleged may be taken into account in deciding whether the court is so satisfied (s 140(2)(c) Evidence Act).
It is said clear or cogent proof is necessary where serious matters are alleged. That is not a matter which goes to the standard of proof but rather, is said to reflect a convention or perception that partners in a relationship do not ordinarily engage in violent behaviour and a court should not lightly find that they do (see Briginshaw v Briginshaw (1938) 60 CLR 336). It is not, however, inherently unlikely that a matter coming to this court, will involve family violence. In fact, a study in 2003 by the AIFS indicated that violence was a feature in 79 percent of the cases brought in the Family court.
In Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449), the High Court warned that a "clear and cogent" evidence test was likely to be unhelpful and even misleading.
The Full Court in Kennon & Kennon (1997) FLC 92-757 indicated that a course of violent conduct could be taken into account in property proceedings where it was demonstrated to have had a significant adverse impact upon a party's contribution to the marriage or to put it another way, to have made his or her contributions significantly more arduous than they ought to have been.
Once findings of fact are made about one party's conduct, it may or may not be possible to make findings about the physical or psychological effect of that conduct on the other party. Whether or not that is possible in order to establish a "Kennon" claim, the court needs to make some finding about the effect of the conduct of one party upon the contributions made by the other.
[38] [2010] FamCA 530
The need for a link to be shown between the domestic violence alleged and the impact of that violence on the victim’s contributions was stated in Spence & Spence.[39]
[39] [2008] FamCA 263
In Gillard & Gillard[40] Watts J addressed contentions of the wife to the effect that her contributions were made significantly more arduous by reason of family violence. His Honour cited Kennon as well as S & S as well as s 140(2)(c) of the Evidence Act for the evidentiary standard. In percentage terms, in Gillard Watts J referred to the decision of Collier J in Ismail v Elfar[41] where non-particularised acts of family violence were alleged in a long marriage and where Collier J held that the family violence could not have impacted in a vastly significant way so a two percent adjustment was made.
[40] [2016] FamCA 841
[41] [2011] FamCA 716
In 2016 the Full Court again examined the evidence led at trial about the impact that family violence allegedly had upon the wife’s contributions. In Maine & Maine[42] the court held as follows –
Rather, established principles by reference to the Full Court decision in Kennon, and the cases which have followed it, required of his Honour findings in respect of evidence that addressed specifically, as Kennon suggests is required, the impact that the violence had upon the wife’s contributions including, significantly (but not exclusively), her contributions referenced to s 79(4)(c).
[42] (2016) 56 Fam LR 500
As is frequently the case in litigation where family violence is alleged, the trial judge is required to determine whether the evidence of family violence is probative and reliable. So long as the evidence is probative it will usually be admissible. Of the evidentiary issues, in Britt v Britt,[43] the Full Court said the following –
Thus, 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.
As the above passage makes clear, s 55 of the Evidence Act proceeds on the basis that a trial judge cannot take the credibility, or lack thereof, of a witness into account when determining the admissibility of evidence. Any issue of credit is taken into account later, when considering the weight or importance the evidence should be given.
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.
In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
[43] (2017) 56 Fam LR 526
As to the precise nature of the evidence of family violence, aside from the standard to be proved, two decisions have addressed important evidentiary matters. It will be recalled that in S & S (also called Spagnardi & Spagnardi), the Full Court spoke of three separate matters in respect of which the court needed to be satisfied, those being –
a)the incidence of domestic violence;
b)the effect of domestic violence; and
c)the evidence to enable the court to quantify the effect of the violence upon the parties’ capacity to contribute as defined in s 79(4).
In Britt v Britt the Full Court held that the court can infer from appropriate evidence that a nexus existed between the conduct and the relevant contributions. Thus, where direct evidence may not be available from which the relevant nexus may be drawn, based on other evidence an inference about the nexus may be drawn. And based on the decision in Amador & Amador,[44] it is not necessary for the evidence of the person asserting the existence of family violence to be corroborated before being accepted.
[44] (2009) 43 Fam LR 268
Nowhere among the affidavits or the viva voce evidence was there any evidence that connected the fact of family violence to matters relevant to contribution. In other words, neither the applicant nor the respondent gave evidence that the family violence to which she or he was subjected had an impact on the contributions he or she made. Further, no endeavour was made to quantify either in percentage terms or in specific monetary amounts the impact family violence caused the applicant or the respondent.
The absence of that evidence created a considerable obstacle for the respondent. Even if I had been persuaded to the requisite degree of the incident or incidents of family violence, as well as the effect of any such family violence, no evidence was led by the respondent to enable me to quantify the effect of that violence upon the respondent’s capacity to contribute. According to the statement of principle in S & S, a necessary element in the proof of family violence was absent.
I reject the contention advanced by the respondent that her entitlements in this case are enhanced by the fact of family violence. Aside from the fact that no finding of fact was made in relation to family violence as the parenting aspect of the case resolved, I was in no position based on the respondent’s evidence to quantify the impact of any alleged family violence. I reject the Kennon claim.
Section 75(2) considerations
It must be acknowledged that the respondent will have primary care for the child. The child will spend five nights out of 14 with the applicant.
The respondent asserted that her hearing impairment will render her unable to earn as well as she did prior to the incident in the shower because, so she said, she cannot hear properly and her work takes longer to perform. That was mere assertion. No evidence was given to support it.
In any opinion a 50/50 division is just and equitable in the circumstances.
I make orders in the form urged by the applicant.
I direct the parties bring in a minute by 12 July 2019 as per order 1.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 19 June 2019.
Associate:
Date: 19 June 2019
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