Benson & Drury
[2020] FamCAFC 303
•7 December 2020
FAMILY COURT OF AUSTRALIA
| BENSON & DRURY | [2020] FamCAFC 303 |
| FAMILY LAW – APPEAL – PROPERTY – Kennon argument – Where the primary judge assessed an adjustment of 5% – Whether the primary judge erred in the way her Honour took into account contributions made by the respondent that had been made significantly more arduous by the family violence perpetrated by the appellant – Where the primary judge was required to take a holistic approach and not make an adjustment, based upon the Kennon argument, against the remaining contributions – Where, notwithstanding the error, there had been no miscarriage of justice and a rehearing should not be ordered – Where the primary judge did not err in the assessment of the appellant’s initial contribution of real estate – Appeal dismissed – Costs awarded in a fixed sum. |
| Family Law Act 1975 (Cth) Pt VIIIAB, ss 75, 79, 90SF, 90SM, 94AAA Family Law Rules 2004 (Cth) r 19.18 |
| Baranski v Baranski and Anor (2012) 259 FLR 122; [2012] FamCAFC 18 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Carr v Baker (1936) 36 SR (NSW) 301 Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 G v H (1994) 181 CLR 387; [1994] HCA 48 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143;[2003] FamCA 395 Hill and Hill (2005) FLC 93-209; [2005] FamCA 42 Horrigan & Horrigan [2020] FamCAFC 25 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Maine v Maine (2016) Fam LR 500; [2016] FamCAFC 270 Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262; [2000] NSWCA 29 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 S & S [2003] FamCA 905 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Stevens and Stevens (2005) FLC 93-246; [2005] FamCA 1304 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Tomasetti and Tomasetti (2000) FLC 93-023; [2000] FamCA 314 |
| APPELLANT: | Mr Benson |
| RESPONDENT: | Ms Drury |
| FILE NUMBER: | ADC | 3749 | of | 2015 |
| APPEAL NUMBER: | SOA | 19 | of | 2020 |
| DATE DELIVERED: | 7 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide via video conference |
| JUDGMENT OF: | Strickland, Watts & Austin JJ |
| HEARING DATE: | 20 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 February 2020 |
| LOWER COURT MNC: | [2020] FCCA 250 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Smith |
| SOLICITOR FOR THE APPELLANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC with Ms James |
| SOLICITOR FOR THE RESPONDENT: | D’Angelo Lawyers |
Orders
The Amended Notice of Appeal filed 20 July 2020 be dismissed.
Within a period of two (2) months, the appellant is to pay the respondent’s costs fixed in the sum of $15,000.
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 Benson & Drury 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 19 of 2020
File Number: ADC 3749 of 2015
| Mr Benson |
Appellant
And
| Ms Drury |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Amended Notice of Appeal filed 20 July 2020, Mr Benson (“the appellant”) appeals a property settlement order made by the primary judge on 10 February 2020. Ms Drury (“the respondent”) opposes the appeal.
A focus in this appeal is upon the primary judge’s consideration as to whether there should be “a contribution based adjustment in favour of the [respondent] as a result of the family violence she experienced”. This was referred to at the hearing before the primary judge and by her Honour in the reasons for judgment as “the Kennon claim” (at [149]) or “a Kennon adjustment” (at [140]) and now by the appellant as the “Kennon argument” (Appellant’s summary of argument filed 20 July 2020, paragraph 6) (Kennon v Kennon (1997) FLC 92-757 (“Kennon”)).
The primary judge took the view that “the impact of the family violence on [the respondent] made her contributions both during the relationship and in the lengthy post separation period all the more arduous” ([162]) and “assessed the adjustment at 5%” ([163]), over and above the finding that the parties’ contributions were otherwise equal.
The appellant complains that the primary judge erred in making this adjustment independently of an assessment of the other contributions of the parties; in limiting her considerations to the incidence and effect of family violence upon the respondent, rather than upon her contributions; gave inadequate reasons for why the established family violence made the respondent’s contributions “all the more arduous”; and as to why a 5 per cent adjustment was appropriate and just and equitable.
The appellant also complained that the primary judge gave inadequate weight to his initial contribution of real property.
At the time of the hearing before the primary judge, the appellant was 53 years of age and the respondent was 45 years of age. They cohabited in a de facto relationship for about 11 years between early 2004 and late 2014. The parties have two children born in 2005 and 2008.
For reasons which follow, whilst we have found merit in the first ground of appeal, we ultimately conclude that no miscarriage of justice has occurred; it is not appropriate to order a rehearing and the appeal should be dismissed.
The primary judge’s reasons
The parties made competing applications before the primary judge for a property settlement order following the breakdown of their de facto relationship. At [42] the primary judge, citing Stanford v Stanford (2012) 247 CLR 108, acknowledged that it was necessary to consider whether any order should be made adjusting the parties’ legal and equitable interests in property and found that it should at [47]. The primary judge referred at [43] to the “four step process” identified by the Full Court in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
As a first step, having resolved controversies between the parties, the primary judge concluded that the combined net assets of the parties were $2,259,053. There is no complaint about this conclusion.
The primary judge referred to the second step as the “identification and evaluation of the contributions of the parties to the acquisition, conservation and improvement of the property” (at [43(b)]).
To repeat, it is the primary judge’s consideration of the contributions of the parties that is the focus of this appeal. At [127]–[163] the primary judge further discusses those contributions.
The primary judge adopted a “global” rather than “asset by asset” approach to the assessment of contributions. At [20]–[37] of the reasons for judgment, the primary judge discusses the financial arrangements between the parties during their relationship and in the post-separation period, the respondent making the primary contribution as parent in the period between November 2014 and February 2020.
The primary judge commenced the discussion on contributions, by recording the manner in which each party presented the controversy in relation to contributions at the hearing:
128.… the parties agree that their respective contributions both of a financial and non-financial nature are equal, save and except as follows:
a)So far as [the appellant] is concerned, he says that his initial contribution of the [Suburb EE] property is “significantly higher” than [the respondent’s] initial contribution of the [Suburb NN] property warranting a 65% adjustment in his favour; and
b)[The respondent] asserts that the only disparity between the parties at the contribution stage is one in her favour in light of the family violence that she suffered, warranting a 60% division in her favour.
129.Ignoring the two issues relating to contributions that are in dispute between the parties, I accept the mutual submission put that their contributions over the course of their long relationship were equal in light of their combined efforts in all spheres of the relationship towards the acquisition, conservation and improvement of property.
At [130]–[139] the primary judge considered whether there should be an adjustment in the appellant’s favour on account of his initial contribution of real property which had a gross value of $500,000 at the date of cohabitation; and was subject to a mortgage of $40,000 and a loan to his mother of $73,000. This property remains intact at the date of the hearing. The respondent made an initial contribution of real property with a net equity of $108,000. This property was sold and the proceeds used to acquire real property in joint names.
At [134]–[139] the primary judge discusses and reaches a conclusion about the appellant’s initial contributions in the following way:
134.In the recent decision of Jabour & Jabour [2019] FamCAFC 78 (‘Jabour’) the Full Court undertook a comprehensive analysis of decisions which have had a focus on the contribution of a specific asset which remains largely intact at trial and for which the contributing party seeks a contribution based adjustment.
135.In Jabour the court concluded after extensively reviewing the authorities that “the weight of authority is therefore clear,” and went on to identify error in the primary judge having weighed the myriad of contributions made by the parties over the course of the relationship against the contribution made by the husband in bringing in the property, rather than treating the property as “one of the myriad of contributions made”.
136.The Full Court went on to identify that:
a)Those contributions included “contributions that were made in the course of a long marriage during which both parties worked very hard and raised a family”; and
b)Referred to the Full Court decision of Wallis and Manning [2017] FamCAFC 14 with approval saying that it is important for the court to be careful to avoid that the “miscellany of other s 79(4) factors is not accorded a subsidiary role in the assessment of contributions.”
137.The position of [the appellant] in these proceedings appears to suggest that the court should weigh the otherwise agreed equal contributions of the parties against his isolated initial contribution of the [Suburb EE] property. As identified by the Full Court, such an approach is erroneous.
138.In the present circumstances this approach ignores a raft of other factors, including:
a)The parties mutual ability to retain the [Suburb EE] property over the course of their relationship when they were both working and raising a family;
b)The contribution by them over the course of the relationship to the outgoings for the property;
c)[The appellant’s] ability to have retained the [Suburb EE] property in the post separation period at a time when [the respondent] was being firstly housed by her parents and then renting [interstate] and otherwise additionally making very significant parenting and non-financial contributions with limited support from [the appellant];
d)[The respondent’s] significant superannuation contributions in the post separation period (despite the different nature form and characteristics of superannuation as against those of the non-superannuation assets).
139.In my view, when all of these factors are taken and weighed together, there is no basis for any adjustment in [the appellant’s] favour with respect to the [Suburb EE] property.
(Emphasis in original) (Footnotes omitted)
The primary judge then considered whether there should be a contribution based adjustment in favour of the respondent as a result of the family violence she experienced.
The respondent relied upon the well-known guideline established by the Full Court in Kennon at 905:
…where there is a course of violent conduct by one party towards another during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution 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.
(Emphasis added)
We pause to note that although sometimes, in the context of the Kennon argument, words such as “adverse impact”; “more arduous” or “more onerous” are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party’s contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).
The guideline has been repeatedly adopted and consistently applied over many years (see for example: S & S [2003] FamCA 905 (“S & S”); Hill and Hill (2005) FLC 93-209 at [70]–[71]; Stevens and Stevens (2005) FLC 93-246 at [52]–[67]; Baranski v Baranski and Anor (2012) 259 FLR 122 at [250]–[263]; and Maine v Maine (2016) 56 Fam LR 500 at [52]).
The primary judge had earlier in the reasons for judgment adopted findings about family violence which had been made by Berman J in parenting proceedings between the parties. At [19] the primary judge said:
19.While not repeating all of the findings that are to be incorporated into these proceedings, the findings of His Honour with respect to the occurrence of family violence can be summarised as follows:
a)That [the appellant] perpetrated family violence against [the respondent], with such behaviour consisting of both physical altercations, as well as coercive and controlling conduct.
b)That [the respondent] had not exaggerated her allegations of family violence and nor were her allegations a concoction or fabrication.
c)That the family violence occurred during the parties’ relationship and persisted in the post-separation period, notwithstanding that there was no longer a physical component.
d)That the following incidents of family violence were perpetrated against [the respondent] by [the appellant] during the parties’ relationship:
i)When [the respondent] was pregnant with the parties’ child [C], [the appellant] placed his hands around [the respondent’s] throat in the presence of the child [B].
ii)On one occasion, [the appellant] chased [the respondent] into her office and due to her fear of him, she deadlocked the office door. [The appellant] then hit the door so hard that the deadlock broke and he was able to gain entry and [the respondent] ran out of the room and away from him.
iii)In September 2011, [the appellant] became so angry that he smashed plates and swept [the respondent’s] laptop computer onto the floor. He then wrote a derogatory statement about [the respondent] on the wall.
iv)In early 2012, [the appellant] tricked [the respondent] into attending upon psychologist Ms AA for counselling, with the ulterior motive of having the psychologist assess [the respondent] in respect of [the appellant’s] belief that [the respondent] suffered from a personality disorder. [The appellant] was unable to understand the distress and upset exhibited by [the respondent] when she learned of his manipulation.
v)That on one occasion at a beach [the appellant] grabbed [the respondent] around the neck or in a headlock and threw her in the water in the presence of the children.
e)The conduct that constituted family violence continued during the post separation period and included the following incidents:
i)That on 6 July 2015, [the appellant] threatened to kill [the respondent] during handover of the children at [the respondent’s] home, which resulted in [the respondent] obtaining an interim intervention order. [The respondent] was entitled to be fearful in relation to [the appellant’s] threat and her response in contacting the police and obtaining an intervention order were justified.
ii)The day after the threat to kill, [the appellant] sent an email to [the respondent] containing insulting language, including that [the respondent] was to blame for all that occurred in their relationship.
iii)[The respondent] received persistent levels of communication from [the appellant], including numerous text messages and emails over short periods of time, notwithstanding [the appellant’s] awareness of [the respondent’s] distress about receiving the same.
iv)[The appellant] attempted to come into close proximity to [the respondent], particularly at the children’s sporting games, with no regard for [the respondent] and the children’s anxiety.
f)That [the appellant] acknowledged his past behaviour had been violent and abusive and would have frightened [the respondent].
g)That [the appellant] accepted little responsibility for his conduct and minimised the very real and adverse effect of his behaviour on [the respondent].
h)That [the appellant] had given evidence that [the respondent] had been experiencing his conduct for a “sufficient period of time now to be able to put it into perspective.”
i)That [the appellant] was keen to minimise or place into context his physical and aggressive displays coupled with clear anger management issues.
j)That [the appellant] lacked insight into the very real and long-lasting consequences of family violence and his controlling behaviour.
k)That [the respondent] did not engage in ongoing family violence and did not exhibit any behaviour that could be considered as provocation or justification for any aggressive responsive by [the appellant].
l)That the family violence had a “debilitating effect” on [the respondent].
(Footnotes omitted)
At [150] the primary judge concluded “… it is clear that there is no dispute between the parties that [the respondent] was subjected to family violence in all its forms by [the appellant]”.
The appellant relied upon part of a report by the respondent’s treating therapist which indicated that the respondent was able to compartmentalise her emotional dysregulation caused by the impact of family violence so that it did not adversely impinge upon her work. The primary judge rejected this proposition by referring to other parts of that report and concluded at [159]:
This excerpt clearly indicates that [the respondent] was impacted by the family violence perpetrated against her by [the appellant], and is evidence of the significant emotional dysregulation that she battled at times.
The primary judge makes the following observations about the appellant’s case in respect of the relevance of family violence on the respondent’s contributions:
142.While acknowledging the existence of numerous incidences of family violence, [the appellant] asserts that the case does not fall within the rubric of Kennon as [the respondent] has not been adversely affected by the violence and there has been no quantification by her of the effect of the violence she suffered. To the contrary, [the appellant] points to the fact that [the respondent] was able to complete her [qualifications] and obtain secure employment at a university, as evidence of the lack of any discernible impact on her.
…
152.It appears to me that [the appellant’s] case rests on a premise that because [the respondent] was high functioning professionally, the family violence that she suffered could not possibly have had a discernible impact on her.
In respect of that case advanced by the appellant, the primary judge found at [153]:
Frankly, this is a proposition that I find difficult to accept. The fact that [the respondent] was able to undertake studies and maintain her employment, does not necessarily mean that she did so easily and without significant burden.
At [161] the primary judge referred to her observations of the respondent during the hearing, finding that past family violence was continuing to have an impact upon her.
At [162] and [163] the primary judge concluded:
162.As a result of all of these matters, I have taken the view that [the respondent’s] Kennon claim is made out. It is my view that the impact of the family violence on [the respondent] made her contributions both during the relationship and in the lengthy post separation period all the more arduous.
163.As difficult as the task is of quantifying the adjustment to be given to [the respondent], I have assessed the adjustment at 5%.
The primary judge then considered, at the third stage, s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) matters and concluded that there should be a further adjustment in the respondent’s favour of 5 per cent (at [173]). There is no complaint about that conclusion.
The primary judge then considered the orders that would be made and concluded that orders that achieved a 60/40 adjustment of the parties’ net assets were just and equitable (at [184]).
Grounds of Appeal
The grounds of appeal are as follows:
1.When assessing the contributions of the parties, the learned trial judge erred in considering the Kennon argument independent of the other contributions of the parties.
2.In considering the [respondent’s] contributions with respect to the Kennon argument the learned trial judge:
2.1Erred in principle in limiting her considerations to the incidence and effect of the family violence; and/or
2.2Gave inadequate reasons as to the basis upon which the finding that the family violence made the [respondent’s] contributions more onerous was reached.
3.The learned trial judge gave inadequate reasons as to why a 5% adjustment was appropriate and just and equitable based on the principles espoused in Kennon.
4.When assessing the contributions of the parties the learned trial judge gave inadequate weight to the [appellant’s] contribution of the [Suburb EE] property.
Ground 1
By Ground 1, the appellant argues that the primary judge, when reaching a conclusion about the Kennon argument at [162] and [163] of the reasons for judgment, did so independently of an assessment of the other contributions made by the parties and that when considering a Kennon argument, it is necessary that any contributions of the spouse which have been made significantly more arduous by family violence must be assessed as part of the totality of the myriad of contributions made by each party.
In Dickons v Dickons (2012) 50 Fam LR 244 the Full Court said:
24.… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
…
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The plurality in Chapman & Chapman (2014) FLC 93-592 sounded the following warning at [100]:
Convenient shorthand used in the making of submissions often sees them couched in terms of “adjustment” to an “otherwise” equal distribution. While understandable enough, doing so is fraught with the potential for error. The “compartmentalisation” or labelling of contributions and the language of adjustment can produce errors of the type identified by this Court in Bolger & Headon [2014] FamCAFC 27 or Dickons & Dickons [2012] FamCAFC 154.
The respondent argues that the primary judge decided the case in the way it was presented by both parties. The respondent points out that, in written submissions, the appellant used the word “adjustment”:
The court ought to find that, although there were incidents of family violence, the violence did not have impact sufficient for the Court to make any adjustment.
(Emphasis added) (Appellant’s written submissions dated 12 December 2019, p. 9)
The word “adjustment” is used by the appellant in final written submissions in a similar way on two other occasions.
While the primary judge may have been led into error, her Honour failed to consider the Kennon argument in a holistic way. Having first considered all of the parties’ respective financial and non-financial contributions, her Honour then turned to separately consider the quantification of an adjustment to the respondent’s contribution-based entitlement on account only of the Kennon guideline. The primary judge found the parties’ overall contributions were equal (at [139]), but then went on to reason that the respondent’s contributions warranted an “adjustment” of an extra five per cent as her “Kennon claim” was made out.
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)–(c) or ss 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour & Jabour (2019) FLC 93-898 at [73]–[87] (“Jabour”); Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48]).
That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act (Tomasetti and Tomasetti (2000) FLC 93-023 at [107]–[114]). Any adjustment to the parties’ contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
Although the use of the short-hand descriptor of a “Kennon claim” is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen & Laukien (2020) FLC 93-960 at [48]–[50]). Nor is it helpful to refer to the issue as a “Kennon adjustment” because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
We agree with the appellant’s submission that the primary judge’s error in dealing with the Kennon issue is brought into stark relief by the manner in which her Honour dealt with the appellant’s claim for greater recognition of his initial contribution of real property. The appellant advocated for the assessment of his contribution-based entitlement at 65 per cent on account of that particular contribution (at [128]) but, in express reliance upon the jurisprudence in Jabour, the primary judge rejected the submission because the appellant’s initial contribution of real property was but one of many contributions to be synthetically taken into account (at [130]–[139]). Then, contrarily, her Honour did the opposite in relation to the application of the Kennon guideline by treating it as an adjunct.
The error of segmentation and the comparative analysis of one feature of the evidence against all others befell her Honour in this instance.
Accordingly there is merit in Ground 1. However we will later consider whether or not there has been a miscarriage of justice occasioned by that error and whether a rehearing should be ordered.
Ground 2
Ground 2.1 asserts that the primary judge erred by limiting her Honour’s consideration to the incidence and effect of family violence upon the respondent without connecting those considerations to the effect of family violence upon the contributions that the respondent had made.
It is useful to repeat the primary judge’s finding at [162]:
As a result of all of these matters, I have taken the view that [the respondent’s] Kennon claim is made out. It is my view that the impact of the family violence on [the respondent] made her contributions both during the relationship and in the lengthy post separation period all the more arduous.
While not formally abandoning Ground 2.1, counsel for the appellant conceded that this ground cannot be maintained given the second sentence of [162] where the primary judge explicitly makes the necessary connection.
Ground 2.1 fails.
Ground 2.2 asserts that the primary judge gives inadequate reasons for reaching the finding at [162].
Reasons will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to have been done (see Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 quoting Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The reasons should enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279). Reasons need be neither “lengthy nor elaborate in order to be adequate” (Thorne v Kennedy (2017) 263 CLR 85 at [61]).
The Full Court in S & S, summarised the evidentiary requirements for a Kennon argument as follows:
47.… As Kennon has established, it is necessary to provide evidence to establish:
· The incidence of domestic violence;
· The effect of domestic violence; and
· Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to “contribute” as defined by s 79(4).
However, in Keating & Keating (2019) FLC 93-894 (“Keating”), the plurality raised doubts as to the S & S formulation of the evidentiary requirements in Keating. Whilst not expressing any final view, the plurality interpreted the third dot point in S & Sin the following way:
39.… We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in [S & S] in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in [S & S] said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon, when in truth, the court in [S & S] was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the court to draw inferences which would establish the evidentiary nexus (see [S & S] at [42])…
Even though S & S might, in the past, have been interpreted as implying the need for something more, it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties (Maine v Maine (2016) 56 Fam LR 500 at [47]–[52]; Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating at [27]–[43], [52]–[67]).
Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
As already chronicled, what the primary judge did do was firstly set out, in detail, the nature of the family violence perpetrated by the appellant “in all its forms” ([19] and [150]) and found that it had “a debilitating effect” upon the respondent [19(l)] and made the contributions of the respondent all the more arduous [162].
This is a case where, given the nature of the violence described, the primary judge was entitled to draw inferences to establish the necessary evidentiary nexus.
There is no merit in Ground 2.2.
Ground 3
The appellant asserts that the primary judge gave inadequate reasons as to why a 5 per cent adjustment was appropriate and just and equitable based on the principles espoused in Kennon.
That conclusion is at [163] of the primary judge’s reasons for judgment and is set out above.
The appellant correctly submits that the “5% adjustment” referred to in [163] means that given all other contributions were assessed as equal, the overall assessment of the parties’ respective contributions would lead to a division of the net assets of the parties as to 55 per cent in the respondent’s favour and 45 per cent to the appellant.
The primary judge at [174] concluded that the combined net assets and superannuation of the parties is $2,259,053. Five per cent is therefore $112,953 or as the appellant points out, a $225,905 differential.
It is invariably the case that at the end of a discussion about contributions, there will be a “leap” from words to figures. As Coleman J observed in Steinbrenner & Steinbrenner [2008] FamCAFC 193:
234.Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective. In this Court’s view this is not such a case.
The appellant submitted that the leap at [163] is too great and so unheralded by the discussion which proceeds it as to amount to an inadequacy of reasons. We disagree.
As was explained in the reasons for judgment, there was systematic long term family violence perpetrated by the appellant against the respondent which extended from threats to murder, to choking and a panoply of other violent conduct. The primary judge concluded that the impact of that family violence made the respondent’s contributions, including in her role as primary parent and in her employment, both during the relationship in excess of 10 years and in the post-separation period, all the more arduous. Five percent is neither too great nor so unheralded as to render the reasoning process defective.
Ground 3 fails.
Ground 4
Ground 4 complains the primary judge gave inadequate weight to the appellant’s initial contribution of his interest in real property.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 520:
…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
As set out above, the initial contribution of real property had to be weighed together with “a raft of other factors” ([138]).
The appellant submitted that the initial contribution of a property which was now worth $900,000 should have been given weight in circumstances where:
·The parties were in a de facto relationship for approximately 10.5 years;
·The property was retained throughout the relationship;
·The parties made limited improvements to the property;
·The resources contributed to the property by way of mortgage payments and outgoings were not substantial in the context of the value of the property;
·It was not suggested that the parties had to sacrifice to retain the property; and
·It was not suggested that the increase in the value of the property was a windfall.
The primary judge expressly weighed the appellant’s initial capital contribution with numerous other identified contributions in an inclusive way (at [138]) and found general equivalence (at [139]).
Apart from the appellant’s initial contribution of the property and the Kennon argument, the parties had invited the primary judge to consider the myriad of all other contributions as being equal and in doing so the primary judge was implicitly invited not to discuss in her reasons the myriad of other contributions that each of the parties had made during the course of the relationship and following the separation. There is no complaint in this ground relating to the inadequacy of reasons.
In the circumstances we are unable to conclude that the trial judge gave inadequate weight to the appellant’s initial contribution of real property and consequently we are unable to conclude that her Honour’s discretion miscarried when considering the argument in relation to the appellant’s initial contribution.
There is no merit in Ground 4.
Has there been a miscarriage of justice?
We have found there is merit in Ground 1. In the event that the appeal was allowed, counsel for the appellant sought that we order a rehearing. Section 94AAA(6) of the Act provides that on appeal this court “may, if it considers appropriate, order a rehearing”. Section 28(1)(f) Federal Court of Australia Act 1976 (Cth) is in similar terms.
In Conway v The Queen (2002) 209 CLR 203 the High Court said at [36]:
…Section 28(1)(f) of the Federal Court of Australia Act empowers the Federal Court to allow an appeal “on any ground upon which it is appropriate to grant a new trial”. This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred…
(Footnotes and citations omitted)
Whilst we accept they are limited, there are occasions where an error of law established on appeal will not as a matter of course lead to the appeal being allowed.
The question arises as to what the outcome would have been, had the Kennon argument been properly considered as part of the holistic assessment of all contributions.
We have already set out in detail the systemic violence the primary judge found the appellant perpetrated over an extended period of time and referred to the inference available to the primary judge as to its effect upon the respondent’s contributions.
Whilst not discussed overtly in the primary judge’s reasons for judgment, the respondent gave significant evidence in her affidavit filed 2 July 2019 as to the effect of the family violence upon her contributions. This evidence was unchallenged at trial. While the appellant submitted the respondent’s evidence was uncorroborated, in the absence of any challenge to the reliability of the respondent’s evidence, the lack of corroboration was meaningless. The evidence of the respondent included the following:
41.[The appellant] would frequently do these things, usually daily…
41.1…I was sitting on the bed feeding [B] [when the appellant committed an act of violence].
41.2While I was pregnant… the [appellant] became enraged and started strangling me… I was extremely concerned for my unborn child” [this appears to be a reference to the incident listed by the primary judge at [19](d)(i) set out above].
…
41.4…he trashed a kitchen…
41.6… I was informed [by the appellant] that I had [Borderline Personality Disorder]. The [appellant] then would reference this fact daily, saying that everything was my fault, that I was unwell, and I was the cause of all his anger.
42. The abuse attested to above left me extremely fearful, anxious and drained and physically (sic). The constant adrenaline as a result of being abused left me extremely tired.
43.… I was very concerned about my safety and the wellbeing of the children who were sometimes present…
…
44.1.Normal everyday life was difficult and doing things such as cleaning, cooking and raising the children had an added element I needed to be worried about, that if it was not done perfectly it may provoke one of the episodes attested to above.
45.In addition, the abuse itself made me very anxious, fearful and tired.
45.1The lack of concentration and clarity and sleep made it much harder to care for our newborn babies, doubly so because I was losing sleep and energy over both the abuse and the baby.
45.2It made everyday household tasks much more burdensome with the fear, anxiety, fatigue and bruises constantly present and the threat of further abuse hanging over my head.
45.3…The uncertainty, not knowing what would set the respondent off, or if he would do something to hurt the children was exhausting.
45.4 The constant, persistent level of violence in the house effected my emotional and physical well-being. It made life unhappy, difficult and I didn't feel safe in my own home with my children. I would try to make sure everything was up to his standard, by trying to keep the children as happy and well looked after as possible but every day was difficult, both suffering from the abuse and doing everything I could to try and avoid it.
46.…I started to believe it [that I was a terrible person] and saw my friends less. This reduction in social support also made that time more difficult for me.
…
50.Writing was very difficult as it was hard to get clarity with such a chaotic homelife (sic). It was extremely hard to focus and concentrate while looking after the boys and enduring the constant abuse [this was in relation to finishing her qualifications].
…
52.After completing my [qualifications] the abuse continued and was affecting my work. The abuse had the same effect as it had on me when I was raising the children and I continued to do the majority of the housework and child raising.
53.At work, in addition to the fatigue, fear and anxiety, the abuse affected my clarity. Concentration was difficult knowing that I may be going home to be physically or verbally abused. I persisted with work as I knew I needed financial independence.
54.Working full time. while also continuing to face the domestic abuse when I got home was exhausting. I essentially got very little downtime throughout that period as all of my mental energy was focused towards working, trying to avoid the respondent's domestic abuse or dealing with the effects it had on me when he did abuse me.
(Respondent’s affidavit filed 2 July 2019)
There is ample unchallenged evidence to substantiate the finding that the impact of the family violence on the respondent was such as to make her contributions, both during the relationship and in the lengthy post separation period, significantly more arduous.
We are of the view that considering all of the evidence before the primary judge, including the evidence about the appellant’s initial contribution of real property and the impact of family violence on the respondent’s contributions, that an appropriate, just and equitable contribution-based division of the parties’ net assets is 55/45 per cent in the respondent’s favour.
Consequently, given the additional unchallenged finding of the primary judge in respect of s 90SF(3) considerations, the orders made by the primary judge do not occasion a miscarriage of justice and it would not therefore be “appropriate”, within the meaning of s 94AAA(6) of the Act to order a rehearing, and the appeal will be dismissed.
Costs
Notwithstanding the appellant has established Ground 1, the appellant has been wholly unsuccessful and the respondent is entitled to a costs order. The respondent indicated that she would accept a figure of $30,000 which was a reduction in a costs memorandum said to be at scale of $43,000. The appellant indicated that he would concede a figure of $20,000 as being fair and reasonable.
To avoid the need for costs assessment, in exercise of the power under r 19.18(1)(a) of the Family Law Rules 2004 (Cth), we are of the view that an appropriate assessment of costs in this matter is a fixed sum of $15,000.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Watts & Austin JJ) delivered on 7 December 2020.
Associate:
Date: 7 December 2020
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