Britt & Britt
[2017] FamCAFC 27
•27 February 2017
FAMILY COURT OF AUSTRALIA
| BRITT & BRITT | [2017] FamCAFC 27 |
| FAMILY LAW – APPEAL – EVIDENCE – Whether the appellant’s evidence of family violence was properly taken into account by the primary judge – Where the primary judge rejected parts of the appellant’s evidence of family violence on the basis that it lacked particularity and took the form of conclusions – Discussion of s 55 and s 56 of the Evidence Act 1995 (Cth) – Whether the rejected evidence had probative value – Distinction between admissibility and weight – Where the evidence was relevant to an issue in the proceedings and should not have been rejected – Discussion of the effect of a finding that the primary judge wrongly excluded evidence – Where the Court cannot be satisfied that the rejected evidence, if it had been admitted, would not have affected the outcome of the case – Where the matter must be remitted – Appeal allowed – Re-hearing ordered – Costs certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether the primary judge should have given the appellant leave to adduce oral evidence – Where the decision is a discretionary one and it is impossible to conclude that the primary judge erred – No error established. FAMILY LAW – APPEAL – PROPERTY – Where the appellant contends that the primary judge made erroneous findings about the appellant’s conduct in relation to the Australian Taxation Office (“ATO”) – Where the parties had received a large fine because appellant had defrauded the ATO – Where the primary judge made an adjustment in favour of the respondent – Where the parties misdirected the primary judge as to the precise sum of the loss suffered by the parties – Error established. FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Where the respondent contended that the primary judge erred in finding that s 75(2)(d)(ii) of the Family Law Act distinguishes between children of the marriage and other children that a party has a legal duty to support – Where this matter can be addressed during the re-hearing. |
| Evidence Act 1995 (Cth) ss 55, 56, 57, 140 Family Law Rules 2004 (Cth) r 10.12(d) |
| Balenzuela v De Gail (1959) 101 CLR 226 |
| APPELLANT: | Ms Britt |
| RESPONDENT: | Mr Britt |
| FILE NUMBER: | SYC | 3351 | of | 2012 |
| APPEAL NUMBER: | EA | 58 | of | 2015 |
| DATE DELIVERED: | 27 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Aldridge & Cronin JJ |
| HEARING DATE: | 27 October 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 685 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson |
| SOLICITOR FOR THE APPELLANT: | Sorensen & Brown Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Everingham Solomons Solicitors |
Orders
The appeal be allowed.
The orders made by Judge Terry on 30 March 2015 be set aside and the proceedings be remitted to the Federal Circuit Court of Australia for re-hearing before a judge other than Judge Terry.
The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 Britt & Britt 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 SYDNEY |
Appeal Number: EA 58 of 2015
File Number: SYC 3351 of 2012
| Ms Britt |
Appellant
And
| Mr Britt |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from property orders made under s 79 of the Family Law Act 1975 (Cth) (“the Family Law Act”) by Judge Terry on 30 March 2015 in proceedings between Ms Britt (“the appellant”) and Mr Britt (“the respondent”).
The value of the property to be distributed between the parties was $2,207,510. The primary judge found that the appropriate division was 44.95 per cent to the appellant and 55.05 per cent to the respondent. Thus, the appellant was to retain her property at C Town, household contents, motor vehicles and receive a payment of $597,875.74 from the respondent within 60 days. The respondent has paid that sum to the appellant. The effect of the orders is that there is a significant disparity; the respondent received $224,000 more than the appellant.
The appellant now appeals from those orders and seeks that the application be remitted for re-hearing in view of the delay of seven months between the hearing and the delivery of judgment.
The respondent opposes the appeal, and in doing so relies upon a Notice of Contention.
Background
The parties commenced cohabitation in either 1980 or 1981 when the appellant was 15 or 16 years old and the respondent was 31 or 32 years old. They were married in 1988 and separated in November 2011. Their relationship thus spanned some 30 or 31 years. The parties have four adult children.
The parties were farmers and for most of their married life lived and worked on a property known as “Property D”. The property was owned by the respondent prior to the commencement of the relationship. Farming Property D was difficult; however, towards the end of the marriage, the property was discovered to be on a valuable coal seam deposit. In 2009 the parties sold it for $3.4 million. Of that sum, $1.9 million was used to purchase Property E, which the parties farmed together until separation.
Between February and May 2012, $460,000 of the sale proceeds of Property D were released to the appellant. She used those funds to purchase a property at C Town and to undertake extensive renovations to that property.
The appeal
The Notice of Appeal raised some 14 grounds. In his oral submissions, counsel for the appellant grouped those grounds into four topics. We shall do the same. Grounds one, two, eight, nine and ten were not pursued.
Was the primary judge’s exercise of her discretion plainly unreasonable and manifestly unjust? (Grounds 3, 4 and 5)
The primary judge found that having regard to the length of the marriage and that both of the parties were involved in farming operations and the care of the children, the parties’ contributions to their property and the welfare of the family were equal. However, the primary judge considered that because the respondent had held an interest in Property D before the parties commenced their relationship, it was appropriate to recognise that initial contribution by making an adjustment of 0.05 per cent in the respondent’s favour. Thus the parties’ contributions-based entitlements were found to be 50.05 per cent to the respondent and 49.95 per cent to the appellant.
After a consideration of the s 75(2) factors, her Honour came to the following conclusions:
244.Factors which favour the wife are the length of the marriage and the fact that she left school very young and before completing year 10 to live with the husband, bring up children and work on the farm. She has no qualifications to assist her to obtain paid employment and her work skills are in a limited area. The marriage has had an impact on her income earning capacity.
245.Factors which favour the husband are that he is similarly limited by his skill set in terms of obtaining employment in the future other than on the farm and in addition his age is likely to be against him. While there is some realistic possibility of the wife obtaining work in the future the chances of the husband doing so are slim. The husband may have to make do with whatever capital he obtains from the settlement to see him through for the rest of his life; the wife has some prospect of being able to preserve some capital by obtaining employment.
246.The s.75(2) factors to this point therefore slightly favour the husband and the other matter which favours the husband is that the wife must be brought to account for the loss of $106,000.00 as a result of her conduct with the GST returns.
247.To bring the outcome for the husband up to the amount the husband’s counsel proposed however would require an adjustment of nearly 25% in his favour. This would equate to $551,877.50 and create a differential of $1,103,755.00 between the parties.
248.Unless [the appellant’s property in C Town] is also sitting on a coal deposit, and even then, there is no remote likelihood that in 16 plus years or so of potential working life which remain to her the wife will acquire this kind of money. It is also not necessary for the husband to have this additional amount in order for him to maintain a reasonable standard of living and it is an extremely disproportionate response to the wife having caused a loss of $106,000.00 to the pool.
249.A proportionate response in light of the wife’s lack of qualifications and limited education and limited skills, all flowing from her early marriage, is an adjustment of 5% in the husband’s favour.
Thus the final determination was that the respondent should receive 55.05 per cent of the parties’ property and the appellant 44.95 per cent.
The appellant attacks this finding, submitting that this assessment was manifestly unreasonable and that the appropriate determination should be, at the least, an equal distribution of the property.
A challenge asserting that the primary judge’s exercise of discretion is plainly unreasonable and manifestly unjust faces some well-known difficulties. It is not sufficient merely to persuade the appellate court that it would have come to a different result: House v The King (1936) 55 CLR 499 at 505; Gronow v Gronow (1979) 144 CLR 513 at 519 and 538; Mallet v Mallet (1984) 156 CLR 605 at 615.
Nonetheless, in appropriate cases such an error may be established. The appellant must persuade the Court that the decision is one which fits into the category described as follows by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505:
…It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Dinsdale v The Queen (2000) 202 CLR 321 at 340, Kirby J observed that:
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.
(Citations omitted)
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ said at 367:
…Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.…
As identified earlier, the appellant submitted that the primary judge’s decision was manifestly unreasonable because the appellant should have received at least half of the property available for division. It was submitted that there should have been an equal division irrespective of whether the wife’s claim for a greater percentage by reason of her allegations of family violence succeeded.
However, as her submissions developed, it became clear that the appellant did not rely on there being no evident or intelligible justification for the orders. Rather, she relied upon the matters raised by the other grounds of appeal in support of her contention that the division of property was unreasonable.
By these grounds the appellant contended that the primary judge failed properly to take into account the family violence; erred in giving excessive weight to the appellant’s conduct in relation to the Australian Taxation Office; and failed to properly take into account and evaluate the respondent’s post‑separation contributions, the appellant’s earning capacity, and the benefit to the respondent of retaining Property E. As each of these is the subject of separate grounds of appeal, it became apparent that success under the remaining grounds would be informed by the success of the other grounds of appeal and not on the overarching basis of manifest unreasonableness. It is therefore not necessary to deal further with the more general submission.
Accordingly, we shall now turn to those grounds.
Was the evidence of family violence properly taken into account? (Grounds 6 and 7)
The appellant contended that her contributions towards the property of the parties and the welfare of the family were made more onerous by the coercive and controlling behaviour of the respondent and the physical violence he inflicted upon her (see Kennon v Kennon (1997) FLC 92-757).
That contention was not accepted by the primary judge for essentially two reasons. First, much of the evidence relied upon by the appellant was successfully objected to by the respondent and rejected by the primary judge. Secondly, ultimately the primary judge did not accept the evidence of the appellant that had been admitted, saying:
94.I cannot be satisfied on the balance of probabilities that any of the evidence the wife gave about the husband’s aggression or violence is true. The wife was not a witness of credit and the evidence of Mr [K] is only as good as the truth of the things the wife told him. The wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her.
These grounds give rise to the following four issues on appeal:
·Was the evidence of family violence properly rejected by the primary judge?
·Was the primary judge correct to refuse the appellant leave to adduce oral evidence?
·Was the evidence capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent?
·Are the primary judge’s findings as to the credit of the appellant such that, in any event, these grounds should not succeed?
Was the evidence of family violence properly rejected?
It is first necessary to record that the respondent submitted that the appellant was not entitled to appeal against the primary judge’s rejection of evidence because her Honour’s rulings were not decrees within the definition of s 4 of the Family Law Act 1975 (Cth) (see Commonwealth v Mullane (1961) 106 CLR 166 at 169). He also submitted that the decisions to exclude the evidence were interlocutory and not dispositive of the proceedings, either in whole or in part, and referred the Court to R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 302–304 per Gleeson CJ. Such submissions overlook the fact that the primary judge’s rejection of the evidence led to her Honour’s decision not to accept the appellant’s contentions as to family violence. The appellant is therefore entitled to raise the issue of the rejection of evidence on the appeal.
The primary judge, on the application of counsel for the respondent, rejected parts of the appellant’s evidence as to family violence, essentially on the basis that the evidence was not in “proper form”. The primary judge considered that the evidence consisted of conclusions, was “just too general” and lacked particularity. In particular, her Honour was critical of adjectives such as “regularly”, “routinely”, “repeatedly” and “often”. This was because these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to “whether [the family violence] happened once a week or once a decade”. Further, scattered throughout the transcript are statements made by the primary judge to the effect that the evidence was not relevant to the issues before the court.
The primary judge rejected the following evidence from the appellant’s affidavit:
· “I had been having a sexual relationship with [the respondent] since I was 11 years old”.
· “Our first sexual acts were not consensual on my part”.
· “[The respondent] dominated me throughout our relationship. He has been violent and aggressive towards me prior to the time I commenced cohabitation with him. He regularly forced me to have vaginal and anal sex with him without my consent, often causing me considerable pain and discomfort, throughout our relationship. Our first sexual interactions were without my consent. He routinely punched and beat me and was verbally rude and aggressive throughout our relationship. He also routinely denigrated me in public, called me a “slut” and “scum”, and regularly told people, including our children, that I was having affairs with other people. He regularly drank heavily. He would drink until he was extremely intoxicated. He was always violent, aggressive and abusive after drinking, particularly towards me. On numerous occasions during the marriage he said;
‘Why don’t you pack your shit and fuck off’
and
‘You are just a bloody [dodo] ([a reference to] my maiden name). Without me you’d be back in the gutter where you started from. That’s where you really belong’.”
· “For a long time while living at [Property D] we only had one motor vehicle. If [the respondent] left the farm he left in the vehicle and took the phone with him so I could not contact anybody”.
· “[The respondent] regularly left me alone on the property for days at a time while he went away socialising and drinking. Sometimes he left in the afternoon saying he was going to the local hotel for a drink and would not return for a day or more. He regularly came home extremely intoxicated. When he was in this condition he was always aggressive and violent. On these occasions he would punch me, hit me, try to choke me and grab me and drag me around by my hair. It usually took him more than a day of sleeping to recover. Usually he had no recollection of what he had done to me when he awoke”.
· “I had no close family and few close friends. My only contact with the outside world was on monthly and sometimes fortnightly shopping visits to [F Town], when we went to one of the local hotels or on the odd social occasion involving local people”.
· “I am aware that that [the respondent] has been charged with drink-driving offences on at least 3 occasions and he has wrecked at least 2 motor vehicles through crashing them whilst intoxicated. In both cases the vehicle was uninsured and we suffered financial loss as a consequence. In one of these cases he wrecked our [vehicle] the day we made the last payment on it. [The respondent] developed an aversion to driving after these incidents and thereafter I always drove when we went anywhere”.
· “Whenever he was unhappy with me [the respondent] would hit and punch me, throw me to the ground, choke me or drag me somewhere by the hair to make his point”.
· “I lived my life in fear of him and often intervened when he attempted to hurt the children physically usually with the result that I was assaulted physically myself. I was always anxious when he was drinking or when he returned to the farm after drinking. If we socialised in the local area be [sic] would not stop drinking until he was extremely intoxicated and he would never leave a hotel until closing time. On numerous occasions the children and I waited outside a hotel in the car until it closed and he was required to leave”.
· “Prior to the final separation in November 2011 I had left [the respondent] for short periods on many occasions. Every time my responsibility to my children and financial necessity caused me to return. On many of these occasions [the respondent] came and found me and forced me to return to the farm. On other occasions he prevented me from leaving the farm by depriving me of the car keys and …”
· “I complained to [G Town] police who spoke to [the respondent] about [his behaviour towards me on one occasion]. Thereupon [the respondent] started acting in a very caring way towards me. He repeatedly said to me words to the effect;
‘If you drop the complaint I will never hurt you again. I promise. I am very, very sorry. I was pissed when I did it. I will give up drinking. I didn’t know what I was doing. I didn’t mean to hurt you. I will never call you “a slut” again. I promise.’
This behaviour continued for a couple of days until I relented and contacted the police and withdrew the complaint. I did so partly because my self-esteem was so low after years of [the respondent]’s treatment that I did not consider anyone would believe my story against his. I was at the point where I believed I deserved his treatment of me. I still experience those feelings today. [The respondent] was not violent to me when other people were around although he still regularly denigrated me in front of other people. I still feel guilty about the sexual acts he has forced me to perform although they are against my will”.
· “[The respondent] was never satisfied with the standard of my cooking, housekeeping or parenting. He regularly criticised the meals I cooked or the standard of my housekeeping. I had to wash up immediately after every meal. If he was not satisfied with something he would make me do it again. He sometimes made me repeat vacuuming several times a day. He required me to clean the house and wash up the dishes from the family’s evening meal when I came home from second or third jobs after midnight. He was usually in bed asleep when I got home but if I didn’t do the cleaning I was abused and assaulted in the morning. At the same time he required me to rise before him and do my morning chores and jobs before breakfast. He remained in bed while I did this. He usually got up about 8:10 am when I had returned home from the 40 minute round trip to the bus stop. In winter I had to get up at 5:30 am to light the fire so the house would be warm when he got up. He repeatedly said about my cooking:
‘What is this shit? Can’t you cook something better than this? I’m sick of eating the same shit all the time.’
Then he would throw his food out the door to the dogs and say:
‘Now get your arse in there and cook something decent.’
I would then have to prepare another meal. I had never had any cooking training but learnt how to cook meat and vegetables. We rarely ate meat other than lamb because we killed our own sheep and struggled to afford other foodstuffs. At one time he agreed I could go to cooking classes. After 4 classes he stopped me attending because he thought I was having an affair with someone there.
He repeatedly made me re-iron clothes. If he took a freshly ironed pair of trousers from a coathanger and there was a slight mark where they had been hanging over the hanger he would throw the trousers at me and say:
‘Have a fucking look at me. I look like a fucking ragman. I’m not going out looking like a fucking ragman. Go and iron the fucking thing again and do it properly this time and don’t let it happen again. Can’t you do anything properly.’”
· “Often whilst he was abusing me he would punch and hit me, push me to the floor or pull my hair and drag me. I used heavy make-up and frequently wore long-sleeved shirts, jeans and large dark glasses to conceal my bruising and black eyes. I was sensitive and embarrassed about it in public especially when I had to turn up to work with bruises, black eyes and still emotionally upset.… I even lied to a doctor when I had ear trouble and he asked me about the cause of it. A hearing defect I have had for some years has since been diagnosed as being due to the beatings I received from [the respondent]”.
· “[The respondent] regularly administered corporal punishment to the children when they were young. I often had to intervene to protect them and was punched and beaten in the process”.
· “I eventually left [the respondent] because I could no longer tolerate the violent and abusive way in which he treated me throughout our relationship”.
The appellant had also adduced evidence which, if accepted, was that a third party had, on three occasions, observed bruising and been told that it had been caused by the respondent.
Before turning to the specifics of the appellant’s argument, it is desirable first to consider general principles.
The admissibility of evidence, subject to other exclusionary provisions, is governed by s 55 and s 56 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provide:
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.
In IMM v The Queen (2016) 330 ALR 382 French CJ, Kiefel, Bell and Keane JJ explained these provisions as follows at 390:
38. …There can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.
39. The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
40. Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.
41. Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised.…
(Emphasis added)
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.
Albeit in a criminal context, in Roach v The Queen (2011) 242 CLR 610, French CJ, Hayne, Crennan and Kiefel JJ considered that the evidence of a relationship, which was tendered so that the complainant could give a full account of a particular event and so that her evidence would not appear inexplicable and “out of the blue”, was admissible. Their Honours said:
44.Moreover, a view that evidence of the history of a relationship, including the conduct of one party to it towards the other, is not relevant other than as to the other person’s propensity does not accord with what was said by Menzies J (with whom McTiernan and Walsh JJ agreed) in Wilson v The Queen to which, it will be recalled, reference was made by the Attorney-General for Queensland in the debate on the Bill containing s 132B. Menzies J said:
“It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.”
45.In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant’s conduct in relation to the alleged offence intelligible and not out of the blue.
(Footnotes omitted)
Such evidence may also be relevant to the credibility of the witness, as the Victorian Court of Appeal explained in WFS v The Queen (2011) 223 A Crim R 327:
87. In my opinion, the evidence is relevant to the assessment of the credibility of the complainant in that her version of the particular incident, which is the basis of the charge in the indictment, may be more capable of belief when seen in the context of what the complainant says was her sexual relationship with the accused. It may explain, on the complainant's version, why the accused and the complainant acted as they did in circumstances where, without the context of the relationship, those acts might be inexplicable.
88. Under ss 55 and 56 of the Act, to be admissible the evidence had to be relevant. Under the Act, the evidence must be such that, if accepted, it could rationally affect the jury's assessment of the probability of the existence of a fact in issue in the proceeding.
89.The evidence in question was an essential part of the overall evidence that disclosed the developing nature of the improper sexual relationship that existed between the applicant and the complainant prior to the alleged offending conduct.
(Footnotes omitted)
The proposed evidence went to the relationship between the parties. In proceedings under the Family Law Act, evidence of relationships and the parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion. Affidavits would be excessively long otherwise. For example, parties often describe “relationships commencing” or starting “to live together” and this evidence is routinely and unremarkably admitted. Judges use their experience and, importantly, all of the evidence in the case to understand such statements.
It is true, of course, that complaints of family violence raise serious issues. Even so, there is not a higher standard for the admissibility of evidence of family violence compared to evidence on other issues. In determining whether or not allegations of a serious nature have been proven, the Court will apply s 140 of the Evidence Act, but such a task is undertaken after issues of admissibility have been decided.
The issue of whether or not the particular passages set out above were impermissible conclusions is more difficult. There is nothing in the Evidence Act that prevents evidence being given as a conclusion (save for expert opinion expressed as conclusions which can only be given by expert witnesses). The test remains that posed by s 55 and s 56. Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible. If the nature of the conclusion is such that it has no probative value, the evidence should be rejected.
It was not entirely clear what evidence was rejected by the primary judge solely on the ground that it was a conclusion. We are, however, of the view that none of the evidence which was excluded should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion.
Finally, for evidence to be relevant it must be capable of bearing upon the existence of a fact in issue in the proceedings. If the evidence is incapable of establishing the fact in issue then, in reality, there is no issue and the evidence is not relevant.
The difficulty in undertaking this consideration at the early stage of a hearing is that at that point the evidence is not yet complete. As we have explained, in coming to a conclusion that a fact or proposition is established, the court must have regard to all of the evidence. The danger in undertaking such a consideration when determining the admissibility of evidence is that there will be a focus on whether a particular piece of evidence, as opposed to all of the evidence, is capable of establishing the fact or proposition.
There is a second difficulty. A determination, at the threshold of the hearing, that evidence is irrelevant because the fact or proposition contended for cannot be established must be undertaken cautiously and carefully. This is because such a consideration is, in effect, a summary determination of that issue. Accordingly an approach similar to summary dismissal applies and the evidence should only be rejected if there is no reasonable likelihood of the fact or proposition being established (to use the words of r 10.12(d) of the Family Law Rules 2004 (Cth)). The need for caution with respect to the summary dismissal of matters was identified in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255-256.
It must be recalled that s 57 of the Evidence Act permits evidence to be admitted provisionally. If there is a doubt as to whether a fact or proposition is capable of being established, the evidence as to that fact or proposition can be admitted provisionally and the issue can be revisited when the evidence is complete.
In the present case, the primary judge admitted some of the appellant’s evidence of the respondent’s behaviour. That can only have occurred because the behaviour was a relevant issue. Thus, any evidence capable of bearing upon the determination of that issue was relevant and, therefore, admissible.
We return now to the evidence the primary judge rejected. We will not deal in terms with all of it – three examples will be sufficient to demonstrate our point.
At the beginning of the hearing, the primary judge rejected the appellant’s evidence that “I had been having a sexual relationship with him since I was 11 years old” and “[o]ur first sexual acts were not consensual on my part”, giving these reasons:
·“It’s a conclusion and that is all it is”.
·“It wouldn’t be a conclusion if she gave it in proper form, so she went into some detail about what had actually occurred so that people could make some assessment of whether her conclusion that she had been having a sexual relationship with him was based on fact...”
·“…you can’t put information in an affidavit like this in such general terms...”
·“I’m not convinced it’s sufficiently relevant in a property case”.
The proposed evidence sought to explain the nature of the relationship between the parties by setting out the basis of its commencement. It put other evidence in context. If accepted, it was rationally capable of affecting, directly or indirectly, the assessment of the probability of the existence of a fact – namely, the alleged coercive, controlling and violent conduct of the respondent. It was therefore relevant, even if of itself it did not establish the appellant’s ultimate contention. Whether that was established was to be determined on a consideration of all of the evidence, bearing in mind that a piece of evidence may assist with the value of other evidence.
The statements made by the primary judge, to the effect that the evidence was too general and was a conclusion, confuse admissibility with weight. Whilst the evidence could have been more specific (although we do not see how, in relation to this particular evidence, it would have advanced matters much) any generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not.
As to the evidence set out in the third point in [26] above, the primary judge said in the course of hearing the matter and ruling on the application of the respondent for the evidence to be excluded:
·“…surely a major deficiency in this paragraph is as to form. I mean, again, we are talking about a relationship of, what, 31 years?”
·“what does “routinely” mean? These parties were together for 21 years [sic]”.
·“What on earth does the word “regularly” mean? … Does it mean once a year? Does it mean once a week? Does it mean everyday?”
·“Incredibly unfair. So in my view it is just way, way, way too general”.
We will not repeat what we have already said about generality and the confusion between admissibility and weight.
We would add that the words “routinely” and “regularly” have a common meaning capable of carrying some, although perhaps it might be said slight, probative value. The evidence that contained these words was rationally capable of affecting the determination of the allegations of family violence. To complain about them being too general is, in reality, to complain about the importance to be given to them and is not a consideration of whether they have any probative value.
Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.
Ultimately, the court will need to deal with that evidence, in the light of all of the material before it, in order to determine whether particular conclusions or inferences can be drawn. At that stage, the weight to be given to the evidence is critical. However, that occurs at the end of the hearing. It does not occur early in the hearing and not when dealing with objections to evidence.
Finally, we observe that the primary judge’s questions or proposed alternatives (once a year, once a week, once a day) highlight the issue. Whilst these phrases may, at the end of the hearing, demand more weight, they remain, nonetheless, general in form and are conclusions. We do not see why such phrases would be admissible whilst the phrases used by the appellant were not.
Our final example is the fifth bullet point from [26]. In this paragraph the appellant related the respondent’s response to her complaint to the police and why she withdrew it.
In an exchange with the appellant’s counsel, the primary judge said:
HER HONOUR: All right. Well, it infers that he called her a slut, so that’s all I can read into the paragraph. So if that’s the highest it goes, Mr Hodgson, the use I can make of it in a property matter is going to be seriously open to question.
MR HODGSON: Well, he’s saying:
I will never hurt you again.
So there’s an issue there.
I was pissed when I did it. I will give up drinking.
So there was an issue about drinking:
I didn’t mean to hurt you.
HER HONOUR: But he might have hurt her feelings.
…
HER HONOUR: Yes. Well, I think that’s right. I think everything else is just too general and it doesn’t help me. So I’m going to take out everything.
Thus, her Honour rejected the evidence because the evidence was too general and not relevant.
We will not repeat what we have said about generality – suffice it to say, the rejected evidence had some probative value and should have been admitted.
Importantly, the passage contains an allegation of a significant admission by the respondent. When regard is had to all of the appellant’s evidence, one inference that was available was that the respondent was apologising for being violent. This passage therefore illustrates the error in looking at one piece of evidence in isolation rather than considering the evidence as a whole.
The same may be said about the ruling as to lack of relevance. Taken in isolation, that passage may well have been incapable of establishing the appellant’s contentions as to the violence and the effect of it on her contributions. It is only if the proposed evidence as a whole, as opposed to isolated passages, cannot establish the case proffered that it ceases to be relevant. This is because it does not go to an issue in the proceedings. This was not the case here. Other evidence going to the issue of violence was admitted. It was, therefore, an issue in the proceedings. This particular passage was relevant to that issue not because it, of itself, established the appellant’s case, but because it was capable of shedding light upon and bolstering other evidence, so that all of the evidence when taken into account could establish the appellant’s case.
Whether it in fact did so is entirely another matter to be given attention at the end of the hearing, when the appropriate weight is given to the evidence. That is not, however, the consideration at the time objection is taken to the evidence. At that time the court’s task is to consider whether the evidence, if accepted, has some, even if only slight, probative value.
For these reasons we are satisfied that her Honour erred in rejecting the evidence which we have set out earlier.
Should the primary judge have given the appellant leave to adduce oral evidence?
The appellant submits that the primary judge erred by not giving her leave to adduce oral evidence to replace the rejected evidence. The point is now moot, given our finding that the evidence should not have been rejected.
We would point out that giving such leave is a matter of practice and procedure during a hearing and is, therefore, very much a matter for a primary judge. Such a decision must be made in the interests of justice, bearing in mind the competing interests of one party being able to call all the available evidence in support of his or her case and the other party having a proper opportunity to deal with that evidence.
The respondent submitted that an obvious remedy available at the time of the trial was to request an adjournment to prepare further evidence. An adjournment is often not the answer as an award of costs may not answer the prejudice that the other party might suffer. There is also a need for finality in litigation and for the proper and efficient use of judicial time.
As the decision to grant leave will depend on a myriad of factors which will differ in each case, generally speaking, the primary judge will be best placed to assess those factors. Whilst other judges may have taken a different course, in the particular circumstances of this case, it is impossible to say that her Honour erred.
What then is the effect of finding that this evidence was wrongly excluded?
The respondent submitted that the appellant must do more than show that the evidence was erroneously excluded and must establish that had the wrongly excluded evidence been allowed and had the primary judge accepted it, then the orders appealed from would not have been made.
This is not a correct statement of the law. The authorities establish that the court must have regard to the following three propositions:
a)Was the evidence wrongly excluded?
b)If the wrongly excluded evidence had been admitted, can the court be satisfied that it would not have made a difference to the outcome?
c)If the court cannot be satisfied that the wrongly excluded evidence would not have influenced the outcome of the proceedings, then a new trial ought to be ordered.
See Balenzuela v De Gail (1959) 101 CLR 226 (“Balenzuela”) at 239 and 244; Dairy Farmers Co-Operative Milk Co Limited v Acquilina (1963) 109 CLR 458 at 463; and Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”) at 147.
In Balenzuela, Dixon CJ said at 232:
When material evidence has been erroneously rejected at the instance of the party who succeeds, then to deny nevertheless to the unsuccessful party the remedy of a new trial the court must have some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so.
In Stead at 145-146, the High Court considered that in deciding whether the outcome of proceedings would have been different if wrongly excluded evidence had been admitted, the court needs to consider:
Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must be clearly answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions of an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of re-hearing and that on hearing such an appeal the court has all the powers of the primary judge, including the power to draw inferences of fact, Supreme Court Rules, o.58, rr.6 and 14. However, when the full court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
Thus, unless we can be satisfied that the rejected evidence would not, if it had been admitted, affected the outcome, the matter will have to be remitted for re‑hearing. This leads to consideration of the next point under this ground.
Was the evidence capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent?
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
The real question is whether the evidence, taken as a whole, is capable of leading to such an inference. In other words, the appellant invites this Court to find that the rejected evidence “would not have affected the result” (Balenzuela) or “had no bearing on the outcome” (Stead). The authorities oblige us to proceed with caution.
We cannot be satisfied that the excluded evidence would have made no difference to the outcome if it had been admitted. The evidence is capable of suggesting, at least, that the appellant was often left alone at the property with the children, made to repeat tasks, work long hours and remained in the relationship because of her responsibility for the children and out of economic necessity. The evidence is capable of establishing that the respondent was violent, to the extent of leaving bruises that were noticed by a third party.
The respondent denied the appellant’s allegations and was critical of the witness she called to support her evidence. Issues of credit are therefore important and should be decided on the basis of all of the evidence that should have been before the court at a re-hearing. Therefore, we are not in a position to decide these issues and the matter must be remitted for re-hearing.
Is the primary judge’s finding as to the credit of the appellant sufficient to justify the dismissal of this ground?
The respondent submits that because the primary judge did not accept the evidence of the appellant on the issues of violence, no miscarriage of justice has occurred.
We do not accept that submission. The appellant, by reason of error, has lost the opportunity to have her case determined on all of the admissible evidence available. That means, of course, that the credit finding itself was not based on all of the available evidence.
Further, we are concerned about the primary judge’s credit findings. The primary judge rejected the appellant’s evidence for two reasons. They were that:
·The appellant gave “a number of demonstrably false pieces of evidence during the proceedings” (at [84]); and
·Since separation the appellant “has behaved in an aggressive and confrontational way” towards the respondent and members of his family. This conduct led to Apprehended Violence Orders (“AVO”) and to the appellant pleading guilty to assault and was placed on a good behaviour bond for breaching the AVO, intimidation and damage to property. This led the primary judge to find that: “The wife clearly has aggressive tendencies herself which leaves open to question whether she would have meekly put up with the husband assaulting her” (at [94]).
As to the first, this finding is, of course, based on the evidence that was before the primary judge. We have, however, concluded that the primary judge did not have before her all of the available evidence. If all the rejected evidence had been before her Honour it is impossible to be sure that the same credit finding would have been made.
As to the second, the conduct of a person after separation may not be a reliable guide to their behaviour during the relationship. Further, it does not follow, assuming that one party was aggressive and violent at times during the relationship, that the other party was not also violent.
However, as it is our view that the matter must be remitted for re-hearing, we do not consider it desirable or necessary to pursue this issue any further.
It follows that the evidence should not have been rejected and that ground six has been established. The effect of this is that the orders of the primary judge must be set aside and the matter remitted for re‑hearing.
Were the primary judge’s findings as to the effect of the appellant’s conduct in relation to the Australian Taxation Office open to her Honour? (Grounds 11 and 12)
The appellant submitted that the primary judge should not have made an adjustment in favour of the respondent to allow for the appellant’s conduct in defrauding the Australian Taxation Office (“ATO”) because both parties, at the least, received the benefit of the fraud. Further, it was submitted that the primary judge overstated the effect of the appellant’s conduct.
It was not in dispute that the appellant defrauded the ATO. She had carried out the bookkeeping for the farming business for at least the last 18 years of the relationship. Part of that task involved preparing the quarterly Business Activity Statements (“BAS”). Between 2002 and 2007, when preparing those returns, the appellant systematically overstated the Goods and Services Tax (“GST”) paid and understated the income received. The result was that the parties received refunds to which they were not entitled.
According to the primary judge:
162.…The ATO became suspicious and conducted an investigation and in 2007 fined the parties nearly $100,000.00.
163.The husband borrowed the money to pay the fine from his mother and upon the sale of [Property D] in 2009 the parties paid the husband’s mother $106,000.00 being repayment of the loan plus interest.
…
172.I agree that the loss of $106,000.00 is not a loss in which the husband should be required to share. This was not a case of the wife making mistakes because of a misunderstanding of how to complete BAS forms or had involved an isolated error. It arose solely because of the wife’s deliberate wrongdoing and continued for a period of six years. I take into account that:
a)The ATO was satisfied after a very thorough investigation that the errors in the BAS statements were the result of an intentional disregard of the law;
b) The wife was uncooperative in the ATO investigation;
c)The wife displayed guilty knowledge in providing minimum and inaccurate information about the issue in her trial affidavit.
The appellant did not dispute that the ATO audited the GST returns, required the refunds to be repaid and imposed significant penalties. It is also correct to say that the parties borrowed a large sum from the respondent’s mother in 2009 to repay the amount then outstanding to the ATO. The parties repaid the respondent’s mother when Property D was sold.
The primary judge rejected the appellant’s evidence that the fraud was undertaken under the direction or with the connivance of the respondent. Thus, any loss that flowed from her conduct was something that properly could be taken into account under the principles set out in Kowaliw & Kowaliw (1981) FLC 91-092.
However, her Honour seems to have been misdirected by the parties as to the precise sums involved. The ATO records demonstrate that the shortfall was $66,720 and that the penalty imposed was $60,048. Thus any loss suffered was, at best, the amount of the penalty because the shortfall was simply the tax that should have been paid. This is of some importance because of the following finding of the primary judge:
249.A proportionate response in light of the wife’s lack of qualifications and limited education and limited skills, all flowing from her early marriage, is an adjustment of 5% in the husband’s favour.
250.This gives the husband an additional $110,375.50 and creates a differential of $220,751.00 between the parties. It takes account of the missing $106,000.00 and the fact that wife has 16 years plus ahead of her in which she has some prospect of being able to obtain employment and preserve capital for her retirement (if she chooses to do so).
The “missing $106,000.00” accounts for most of the five per cent adjustment of $110,375.50 in the respondent’s favour. Had the correct loss been identified, it is likely that this adjustment would have been different.
Further, it needs to be added that the respondent did not seek an adjustment on the ground of the imposition of the penalty. Rather the respondent’s position was that his contributions were enhanced by the provision of the loan from his mother to pay the sum outstanding to the ATO.
These two matters are sufficient to cast such uncertainty upon the finding of the five per cent adjustment under s 79(4) as to require reconsideration. This ground therefore succeeds.
Did the primary judge err in the assessment of the parties’ economic capacity and the benefit of the respondent retaining an income earning asset? (Grounds 13 and 14)
These two topics deal with the weight to be given to particular considerations by the primary judge. We are conscious that any appeal on these grounds is an appeal against a broad discretion and that we are otherwise allowing the appeal.
It is clear that an intermediate court of appeal should “consider whether to deal with all grounds of appeal, not just what is identified as the decisive ground”: Kuru v New South Wales (2008) 236 CLR 1 at 6; see also Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited (2001) 207 CLR 1 at 20.
Consistently with that principle, as the discretion as to the weight to be given to the parties’ contributions and s 79(4) considerations is to be reconsidered at a re-hearing, it is neither necessary nor desirable to deal with these grounds.
Notice of contention
The respondent relied upon the following two matters to support the decision of the primary judge:
1.That her Honour erred in finding s 75(2)(d)(ii) differentiates between children of the marriage and other children that a party has a [legal] duty to support.
2.That even if the appellant had been permitted to rely on evidence concerning “family violence” or been granted leave to do so, the evidence disclosed no nexus between the asserted fact and contribution based entitlements.
We have already dealt with the second of these matters in the course of the above discussion.
As to the first, the primary judge said:
232.The husband has a responsibility to support his child with Ms [J] and a responsibility to support Ms [J] if he is in a de facto relationship with her to the extent that she is unable to support herself by reason of her care of the child, but Ms [J] also has a responsibility to support herself and a responsibility to support the child.
…
234.The husband will have sufficient, either from retaining the farm or from selling the farm and obtaining the capital to which he is entitled, to support Ms [J] and [the young child the husband and Ms J have together] to the extent that he is obliged to do so. S.75 (2) makes a clear distinction between the responsibility of parties to support children of a marriage and their responsibility to support any other child or person. I do not accept that the husband can expect to receive an adjustment in his favour in respect of the property owned by himself and his wife to assist him to support his new wife and child.
Section 75(2)(d) of the Family Law Act requires the court to take into account the commitments of each party necessary to enable the party to support a child that the party has a duty to maintain. Another relevant consideration is the care or control of a child of the marriage (s 75(2)(c)).
They are both relevant considerations and the weight to be given to each will depend on the circumstances of each case. Given that the matter is to be re‑heard, there is little utility in dealing with the primary judge’s treatment of these considerations.
Costs
We are satisfied that the appeal should be allowed because of an error of law. Neither party sought an order for costs should the appeal be allowed and none will be made. In that circumstance each party sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). They are appropriate orders to make and it is intended that they include the costs of each of the parties which have been reserved to the hearing before this Full Court
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Aldridge & Cronin JJ) delivered on 27 February 2017.
Associate:
Date: 27 February 2017
22
19
4