Dajani & Dajani
[2025] FedCFamC1A 28
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dajani & Dajani [2025] FedCFamC1A 28
Appeal from: Dajani & Dajani [2024] FedCFamC1F 605 Appeal number: NAA 263 of 2024 File number: SYC 3672 of 2020 Judgment of: MCCLELLAND, ALDRIDGE & JARRETT JJ Date of judgment: 26 February 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant was convicted of multiple offences of sexual assault against the daughter prior to the final hearing – Where the primary judge admitted the sentencing remarks from the District Court into evidence – Discussion of s 91 of the Evidence Act 1995 (Cth) – Where the reasons do not show the primary judge relied on the sentencing remarks to provide facts from which inferences could be drawn – Adequacy of reasons – Discussion of Kennon v Kennon (1997) FLC 92-757 – Where the primary judge found there was an inference that the respondent’s contributions were more arduous – Where the reasoning is clearly apparent – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Evidence Act 1995 (Cth) ss 91, 135
Occupational Health and Safety Act 2000 (NSW) s 26
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Benson & Drury (2020) FLC 93–998; [2020] FamCAFC 303
Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Maine v Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Martell v Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341
Number of paragraphs: 64 Date of hearing: 4 February 2025 Place: Sydney Counsel for the Appellant: Mr Chhabra Solicitor for the Appellant: Russell Kennedy Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Santone Lawyers ORDERS
NAA 263 of 2024
SYC 3672 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DAJANI
Appellant
AND: MS DAJANI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & JARRETT JJ
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $10,350.29 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dajani & Dajani has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & JARRETT JJ:
This is an appeal from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 12 September 2024. Those orders saw the property of the parties divided so that the appellant receive 37.5 per cent and the respondent 62.5 per cent.
In coming to that decision, his Honour took into account that the respondent’s contributions had been made more arduous by acts of family violence at the hands of the appellant and that the parties’ daughter required additional care because of the appellant’s sexual abuse against her.
The parties were married in 1983 and separated on 19 August 2019. They had two children – a son and a daughter, aged 30 and 28 respectively at the time of the hearing.
In late 2022 the appellant was sentenced to a lengthy term of imprisonment for multiple offences of sexual assault against his daughter when she was a child and also an adult.
THE APPEAL
Grounds 1, 3(b) and 4 were not pressed.
Ground 2 – Did the primary judge err in admitting the sentencing remarks into evidence?
There was no dispute as to the appellant’s convictions. A certificate of them was tendered without objection. His Honour also took into evidence the sentencing remarks made by a Judge in the District Court of New South Wales when the appellant was imprisoned.
The appellant objected to the tender of the sentencing remarks, relying on s 91 and s 135 of the Evidence Act 1995 (Cth) (“Evidence Act”).
Section 91 states:
91 Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
The section extends to sentencing remarks (Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (“Sukkar”) at [9]).
The remarks, therefore, were not admissible to prove a fact that was in issue in the proceedings before the primary judge.
The primary judge admitted the remarks into evidence accepting the respondent’s submissions to the following effect:
·The remarks add to the bare evidence of the convictions (at [20]);
·The remarks explain what the daughter suffered at the hands of the appellant, her challenging behavioural issues and the respondent’s efforts to manage them and parent the daughter (at [21]);
·The evidence goes to the issues of how the respondent’s contributions were rendered more arduous because of the appellant’s violent conduct against the daughter (at [22]).
His Honour concluded:
25The victim of the husband’s offending, [the daughter], was not called to give evidence in the present case. The wife could not give evidence about the details of the husband’s sexual assaults on [the daughter] as her only knowledge was derived from what she saw, heard, and learned during the husband’s criminal trial and sentencing. Whilst the fact of the convictions is unarguable, the only record of the details of the facts of perpetration are contained in the Sentence Remarks.
26The Court observes the artificiality and incongruity of having before it clear evidence about the husband’s convictions and sentencing, but not the details of the conduct that resulted in those convictions and sentencing. There is a sense in which the Court could almost be misled by the incomplete evidence of merely the convictions and sentencing.
27Senior counsel for the wife contends, in substance, that the purpose of the tender is not to prove the existence of the facts recited in the Sentence Remarks. Rather, the tender is to provide context to the impact on the wife’s contribution of the husband’s conduct towards [the daughter].
28Moreover, the tender would enable the Court to draw inferences about the impact on the wife of the husband’s conduct during the trial of pleading, and maintaining a plea of, not guilty. The Court notes, however, that if an inference is available in this regard, it can be drawn from the conceded, and self-evident, fact of the not guilty plea.
However, his Honour also said:
31Unless stated otherwise above, the Court accepts the submissions made in the wife’s case about the Sentence Remarks. Consistent with the Full Court’s decision in Cirillo, the document is not being tendered for the purpose of proving the facts referred to and will not be used as such by the Court.
…
35…The purpose of the tender of the Sentence Remarks is not to re-establish the husband’s guilt, but merely to provide facts from which inferences may be drawn about how the wife’s contributions were rendered more arduous.
If the “facts from which inferences may be drawn” were indeed facts in issue, then his Honour erred.
It is relevant to note that the appellant was convicted after a jury trial during which he maintained his innocence.
As is plain from the terms of the section itself, the bar imposed by s 91 is not on the admission into evidence of the decision or finding of fact but on admitting the document “to prove the existence of a fact that was in issue in that proceeding”.
In Ainsworth v Burden [2005] NSWCA 174, Hunt AJA (Handley and McColl JJA agreeing) said:
109It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose – as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false – they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act…
(Original emphasis)
The appellant submitted whilst his convictions were not in issue, his conduct to his daughter was disputed. The distinction is between the fact of conviction and the commission of the acts comprising the offence. He submitted that the use of the sentencing remarks to prove acts said to have been committed against the daughter, from which an inference could be drawn that the respondent’s contributions were rendered more arduous, was in breach of the section.
That may be so, if that is what the primary judge did.
The appellant placed particular emphasis on the following remarks of Bathurst CJ (with whom Allsop P, Beazley and Basten JJA, and Sackville AJA agreed on this point) in Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634 at [58]:
Given the terms of s 178(1)(a) as one of the facts to which the section applies, s 178(2) and s 178(3) provide for proof of a conviction of a particular offence identified in the relevant certificate. I would not read s 178(3) as providing for evidence that the offence was committed. Thus, in this case, the certificate would not be evidence of the contravention, but rather of the conviction of the offence in question (which fact is not relevant). Whether or not s 178 has a wider meaning was not the subject of argument. It need not be decided because, whatever its width, it does not provide for proof of the facts relevant to the commission of the offence in the face of s 91(1) of the Evidence Act 1995; and s 26 of the [Occupational Health and Safety Act 2000] should be construed so as to require the proof of the facts underlying the contravention such that the offence is proved beyond reasonable doubt.
That comment was made in proceedings against a director of a company under s 26 of the Occupational Health and Safety Act 2000 (NSW). At the relevant time, s 26(1) provided that if a corporation contravenes any provision of the Act then, subject to certain defences, each director “is taken to have contravened the same provision”. The Court found s 91 of the Evidence Act operated to limit the use of the Certificate of Conviction to proof of conviction only and not the underlying facts. In proceedings against the director of the company for the same offence, the prosecutor could not establish the facts necessary to prove the offence by relying on the certificate but had to prove them by other means.
In a different context, a slightly wider view has been taken.
In Sukkar, the question was whether the defendant was not a fit and proper person to remain on the Roll of Lawyers of the Supreme Court of New South Wales. On 29 September 2003, the defendant was convicted of being knowingly concerned in the importation of ecstasy and was subsequently sentenced to 14 years imprisonment.
Justice Hodgson (with whom Tobias and Basten JJA agreed) said:
9The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.
This decision was applied by the Court of Appeal of Victoria in Osborne v Butler (2024) 73 VR 386 at [34].
Consistent with these decisions, counsel for the appellant conceded the Certificate of Conviction carried with it proof of the elements of the offence.
It is therefore perfectly permissible to draw from the Certificate of Conviction in this matter that the appellant was convicted of many sexual assaults of his daughter over a long period when she was a child and also when she was an adult. The elements of the offences, and those alone, are sufficient for that purpose.
The appellant referred only to [146] of the reasons which states:
The evidence before the Court allows the inference to be drawn that the husband’s sexual offending against [the daughter], proven by the Certificate of Conviction (Exhibit A31), caused or contributed to [the daughter’s] difficult behaviour, and that the wife’s contribution as a parent was rendered more arduous because of this. As above, the fact that she did not provide explicit evidence of how her contributions were made more arduous does not defeat her claim. It can be inferred from the facts that over a period of many years, at least being [the daughter’s] “last years” as a teenager (as conceded by the husband during cross-examination) until the husband’s arrest, the wife had to handle and cope with [the daughter’s] hostile behaviour as well as the unpleasant conflict-ridden environment it caused.
We are quite unable to see where in that paragraph his Honour relied on the sentencing remarks.
The appellant did not point to any other part of the reasons which he said relied on the sentencing remarks and therefore, the ground must fail.
Ground 3 – When assessing the contributions of the parties, his Honour:
(a) Drew an inference in support of the respondent’s argument based upon inadmissible evidence (sentencing remarks);
(b) Considered the Kennon argument independently from the other contributions of the parties; and
(c) Gave inadequate reasons as to the basis upon which the appellant’s conduct had a significant adverse effect upon the respondent’s contributions.
This ground, most unhelpfully, is a combination of three discrete grounds.
Ground 3(a) is merely a repetition of Ground 2 and nothing more needs be said about it.
Ground 3(b) was not pressed.
The submission under Ground 3(c) is that the primary judge’s reasons “do not reveal how and to what extent his Honour considered the [r]espondent’s contributions were actually rendered more onerous” (original emphasis) (appellant’s Summary of Argument filed 7 January 2025, paragraph 59).
In Kennon v Kennon (1997) FLC 92-757 (“Kennon”), Fogarty and Lindenmayer JJ said (at 84,294):
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…
In Martell v Martell (2023) 66 Fam LR 650, Aldridge J explained the principle in a more modern context saying:
24For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
26That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
27More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine v Maine (2016) 56 Fam LR 500 … at [47]–[52] (Maine); Britt v Britt (2017) 56 Fam LR 526 … at [74]–[75]; Keating v Keating (2019) 59 Fam LR 158 … [27]–[43], [52]–[67]; Benson v Drury (2020) 62 Fam LR 1 … at [47]–[50]).
28It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244…; Jabour v Jabour (2019) 59 Fam LR 475…).
Pausing there, it can be seen the focus is on the contributions made by a party and the nature of them. The circumstances in which family violence could make that contribution more arduous and deserving of greater weight can easily be envisaged. The point is, however, the recognition of the true nature and extent of the contributions and not punishment of the perpetrator.
In this matter the respondent had to care for a child and then help an adult child who was facing difficulties in her life which can easily be attributed to or be seen to be exacerbated by the offending against her. That care was needed and given regardless of who the perpetrator was.
Therefore, focusing on those particular contributions and the nature of them, there is no reason why they should not be recognised and given appropriate weight even in the absence of proof that the appellant was the offender. Thus, for example, the child’s difficult behaviour was manifest long before allegations were made against the appellant. That does not mean the contributions were not capable of attracting additional weight.
This was a point made by his Honour who said:
148Further, that the wife did not become aware of the cause of [the daughter’s] behaviour until after the husband’s arrest in 2019 is quite irrelevant in the circumstances. The reality of the wife’s contribution being rendered more arduous because of [the daughter’s] behaviour which, inferentially, was caused or contributed to by [the daughter’s] experience of abuse at the hands of the husband, is not diminished by the wife’s delayed awareness of the husband’s offending. Indeed, this delay is consistent with the secretive and covert nature of sexual abuse. This delay did not change the reality of the wife’s experience of [the daughter’s] behaviour, or the effect it has had on her contributions.
And:
154Lastly, the wife submitted her post-separation contribution of parenting the children was rendered more arduous in the context of the family violence perpetrated by the husband and consequently having to support the children through the period post-separation during the husband’s criminal trial and conviction. The revelation of the husband’s offending against [the daughter] had a deep impact on the wife which was described in detail at paragraphs 63–78 of her affidavit. She felt guilt, shame, betrayal, conflict, anger, disgust and disbelief. It was “the most awful time” for her. She attended the trial to give evidence and listen to the verdict and sentencing, while at the same time trying to support the children and maintain the home where the abuse occurred.
To that extent, it seems to us, that there was no need to have recourse to the principle in Kennon. Of course, as found by the primary judge, the position changed when the respondent became aware of the allegations and supported the daughter throughout the investigation and subsequent court events and the ultimate conviction of the appellant. The suspicion and knowledge of the appellant’s part in the daughter’s difficulties must have made the respondent’s contributions more arduous.
Returning then to the case before this Court, it is important to note that express evidence that the contributions were made more arduous or worthy of significantly greater weight is not required. Such a finding can be inferred if the evidence permits such a course.
In Maine v Maine (2016) 56 Fam LR 500, the Full Court said:
49We consider that this finding by his Honour is erroneous. It ignores, with respect, direct evidence given by the wife in her affidavit not challenged substantively in cross-examination and not the subject of any adverse finding by his Honour. The wife gave direct evidence that family violence had made the household tasks and care of the children “more difficult”. In addition, given the wife’s detailed evidence of the history of the husband’s drunken violence and abuse over a period of about 20 years; the fact that no finding contrary to that evidence was made; and his Honour’s findings quoted at [66] above, we are, with all respect, unable to understand how it was not, in any event, an inescapable inference that the wife’s contributions – in particular her s 79(4)(c) contributions at the very least – were made “more onerous”.
(Footnote omitted)
See also Benson & Drury (2020) FLC 93-998 at [50].
The respondent’s evidence as to her care of the daughter was:
101I found [the daughter] was very difficult as a teenager. She often screamed at me. But as [the daughter] got older, I observed ever increasing tension between her and the Husband. I would often hear him demanding to know where she was going, with who and what she was wearing. I thought at the time, that the Husband was being a protective parent and wanting to ensure that she was safe. However, in 2019, after [the son] went to [Country AA] to work for five months, I noticed that the Husband was behaving in an increasingly aggressive manner towards me and [the daughter]. I heard them fighting on an almost daily basis and him constantly criticising her. He often said to me:
If only she didn’t have such a big mouth. You have no idea what she is doing to me.
102If I spoke up in support of [the daughter], I would hear the Husband yelling at me too. Outside the house, when I was not with the Husband, I noticed that [the daughter] was much more relaxed. I recall we went shopping one day and I had a really good time with her. Then a couple of weeks before the Arrest, I recall that [the daughter] came into the house from the shed and I heard her scream at me: “I hate you!” I didn’t understand what was going on. I said: “Tell me what’s going on. Is dad doing something to you?”
103On another occasion not long before the Arrest, at about 11.30pm at night, I was in the kitchen with [the daughter] and the Husband who were fighting. I saw [the daughter] take a big knife from the kitchen and heard her say something. I saw her go outside, so I followed her and sat with her on the steps, trying to calm her down. After a while, I saw her throw the knife in the bushes and dive into the dark pool, headfirst with all her clothes still on. It felt like it took forever before I saw her head surface from beneath the water. I was terrified.
104At the time, I did not understand why there was so much fighting between [the daughter] and the Husband. I did not understand why [the daughter] seemed so angry with me. I was very sad and tense. I couldn’t sleep. I now believe the fighting was caused by the events that led to the Arrest.
(Affidavit of the respondent filed 4 April 2024)
Counsel for the appellant said that this evidence merely described normal behaviour for a teenager. Whether there is such a thing as “normal” behaviour for a teenager is not the point. The question is what the behaviour of the daughter would have been had she not been repeatedly sexually assaulted.
The particulars of the first offence of which the appellant was convicted were that between early 2002 and mid-2012, at Suburb BB and elsewhere in New South Wales, he had sexual intercourse and indecently assaulted the daughter whilst she was a child (Exhibit A31, Certificate of Conviction).
Therefore, there were a number of assaults in that period.
The last offence of which there was a conviction occurred in mid-2019, being aggravated sexual assault of the daughter when she was under the appellant’s authority as her father.
The intervening offences are of a similar kind. An inference that these offences, which are of a most serious kind, had an adverse impact on the emotional wellbeing and behaviour of the daughter is nigh on inevitable. It would be surprising and, perhaps, incredible if they did not.
This was not the only aggravating factor.
The primary judge referred to the evidence of family violence directed towards the respondent at [134]–[138] before finding that there was insufficient evidence of financial control or social isolation at the hands of the appellant.
At [139], his Honour returned to the evidence of physical family violence and said:
…The Court accepts that the husband denies these allegations. Nonetheless, the importance of the issue of the husband’s alleged family violence was self-evident. Some attempt could have been made to more fulsomely challenge at least some of her allegations. This did not take place. The Court accepts the wife’s evidence, which was unchallenged except in a perfunctory, formalistic manner. The wife’s evidence about this violence was detailed and convincing.
That evidence was found to be confirmed by the evidence of other witnesses in the subsequent paragraphs.
His Honour then concluded:
144The wife has provided ample evidence regarding the family violence she experienced during the marriage, and the Court accepts her evidence, unless otherwise stated. The Court acknowledges that she did not provide express evidence about the effect of that violence on her contributions. However, as stated above at [57], this failure is not necessarily fatal, as this is a case where the evidence falls into a category where it is a very likely inference from the facts that the family violence perpetrated by the husband must have adversely affected her contributions (S & S at [45]).
The evidence of the appellant was then taken into account as follows:
163However, this ignores the fact that the wife experienced family violence and had to manage [the daughter’s] difficult behaviour during the marriage, and post-separation had to deal with the aftermath of [the daughter’s] disclosure that she had been sexually abused by the husband, including supporting the children and dealing with her own physical and mental health issues which were caused and/or exacerbated by these events. The husband conceded to perpetrating family violence, including punching a hole in the wall (Transcript 24 April 2024, p.166 lines 31–40), losing his temper and hitting his fists on the table (Transcript 24 April 2024, p.165 lines 19–20) and threatening to commit suicide on multiple occasions (Transcript 24 April 2024, p.167 lines 11–20). He admitted that he placed a security camera in the loungeroom and that he had a light bulb in his shed activated by a sensor, although denied any sinister purpose that could be inferred from this (Transcript 24 April 2024, p.164 lines 1–26). The security camera made the wife feel “violated” (the wife’s affidavit, paragraph 99) and [the son] feel like he “was being watched” ([the son’s] affidavit, paragraph 23). The husband agreed that [the daughter] was “abusing” the wife (Transcript 26 April 2024, p.182 lines 16–34) in her later teenage years and also that he saw the wife’s expression of a view about what [the daughter] could do as “interfering” with him (Transcript 26 April 2024, p.184 lines 4–5). The Court does not accept the husband’s contentions.
His Honour found, without challenge in this appeal, that there was a causal link “between the control and abuse suffered by the wife in the past and her present chronic pain based on her [medical practitioner’s] specialised knowledge of the link between stress and trauma and the chronic pain caused by medical conditions as well [as] the symptoms of a chronic disorder” (at [156]).
This led to the ultimate conclusion:
167While the wife did not provide direct evidence in every respect regarding the impact of the husband’s family violence on her contributions, the Court nevertheless can draw this inference and accepts the wife’s evidence and finds that her contributions, particularly as homemaker and parent, were rendered more arduous both during the marriage and post-separation as a result of family violence and the sexual offending against [the daughter] perpetrated by the husband.
168Even if the Court is incorrect in finding that numerous instances of the husband’s conduct cumulatively contributed to the wife’s contributions being made significantly more arduous, a course of conduct is not required to demonstrate this and a single incident may be sufficient (Scaletta & Scaletta [2024] FedCFamC1A 87 at [52]–[61]). Many of the single incidents described by the wife and accepted by the Court would be sufficient to come to the same conclusion.
Thus, the respondent’s post-separation contributions were also found to be more arduous as a result of the appellant’s conduct.
The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the following test (at 78,266):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will … be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the NSW Court of Appeal expounded:
57The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
As explained above, the primary judge’s reasoning is clearly apparent and therefore the reasons are adequate.
The appeal will be dismissed.
COSTS
The appeal has been wholly unsuccessful. The appellant will pay the respondent’s costs fixed in the sum of $10,350.29.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Jarrett. Associate:
Dated: 26 February 2025
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