Damiani & Damiani

[2010] FamCA 217

FAMILY COURT OF AUSTRALIA

DAMIANI & DAMIANI [2010] FamCA 217

FAMILY LAW – PROPERTY SETTLEMENT – FAMILY VIOLENCE ISSUES – Whether the factual findings about family violence in a children’s case may be admitted in property proceedings when considering a Kennon based claim – issue estoppel

Family Law Act 1975 (Cth)ss 60CC(2)(b), 60CC(3)(b), (c), (f), (j) and (k), 69ZT, 79
Evidence Act 1995 (Cth) ss 91(1), 93(c), 135(a), (b) and (c)

Blackman v Blackman (1998) FLC 92 – 971
Blair v Curran (1939) 62 CLR 464
Damiani & Damiani [2008] FamCA 1154 [Parenting judgment between these parties by Rose J]
Kennon and Kennon (1997) FLC 92-757
National Mutual Life Association of Australia Pty Ltd v Grosvenor Hill Qld [2001] FCA 237
Outram v Morewood (1803) 102 ER 630
Parkin v James (1905) 2 CLR 315
Porter v Porter [1971] 2AllER 1037
Schorel v Schorel (1990) FLC 92-144
Spence and Spence [2008] FamCA 263

APPLICANT: Ms Damiani

RESPONDENT: Mr Damiani

FILE NUMBER: SYF 4576 of 2004

DATE DELIVERED: 19 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Knox

SOLICITOR FOR THE APPLICANT: Dettmann Longworth

COUNSEL FOR THE RESPONDENT: Mr Fox

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls

Orders

1. Subject to any further argument about relevance, the following factual findings and evidence are admitted in the hearing before me in respect to the alteration of the property of the parties:

   1.1.Those parts of Rose J’s Judgment of 19 December 2008 and those parts of the affidavit of the wife sworn 7 April 2008 which are set out at paragraphs 4 to 7 of my Reasons for Judgment dated 19 March 2010.

   1.2.Paragraphs 66, 85 and 102 of Rose J’s Judgment of 19 December 2008 and the photographs which were part of Exhibit 8 in the hearing before Rose J. 

   1.3.Evidence in the affidavit of Ms Y sworn 19 December 2006.

IT IS NOTED that publication of this judgment under the pseudonym Damiani & Damiani is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYF 4576 of 2004

MS DAMIANI

Applicant

And

MR DAMIANI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The current proceedings relate to the alteration of property interests under s 79 of the Family Law Act 1975 (Cth) (“FLA”). The wife indicated that part of her case will be that the violence she says she suffered at the hands of her husband caused her contributions to be significantly more arduous and consequently those contributions should attract additional weight (relying upon Kennon and Kennon (1997) FLC 92-757).

2. When the case was first before the Court, it was set down as one matter involving both parenting and property proceedings. Subsequently, the proceedings were split to be heard separately and the parenting issues where heard by Rose J. He made final parenting orders and delivered his reasons for those orders on 19 December 2008.  The husband filed an appeal.  The appeal included a challenge to the factual findings made by his Honour, including factual findings about family violence. The husband subsequently withdrew his appeal. 

3. The issue before me for determination, as a preliminary point, is whether findings of fact in relation to family violence which were made by Rose J on 19 December 2008 in the parenting proceedings between the same parties may be admitted in the current property proceedings to avoid rehearing evidence which has already been the subject of a judicial determination.

THE FINDINGS OF ROSE J UPON WHICH THE WIFE WISHES TO RELY

1. In the final hearing concerning property matters before me, the wife wishes to rely on certain factual findings relating to family violence made in the parenting proceedings together with certain evidence accepted by Rose J. In his Reasons for Judgment published 19 December 2008, at paragraph 80, His Honour made the following factual findings:

   “[80] I find that the husband has engaged in violent and abusive conduct to the wife as alleged by her in each of the five incidents to which I have referred and which are set out in her Affidavit.”

2. The five incidents to which His Honour referred were subject of findings by His Honour which are contained at paragraphs 56 - 60 of his Reasons for Judgment as follows:

   “[56] In about August 2003 the husband yelled at her [the wife] and repeatedly pushed her hard on the chest forcing her onto the bed.

   [57] In about October or November 2003 following a counselling session attended by them, the husband dragged her out of bed, across the floor, down the hallway, and then threw her up against the wall. He pushed her violently and repeatedly against the wall. Following that violence, he was abusive towards her for a lengthy period. He demanded an apology from the wife for not preparing food for him.

   [58] In March 2004, when the wife was about four months pregnant, the parties argued. He then assaulted her. The husband chased the eldest child after he said he would call the police. The husband returned to assault the wife again. He then abused her.

   [59] Subsequently, when the wife was about seven months pregnant, the husband spoke to her aggressively and then suddenly assaulted her. Upon the wife commencing to pack her clothes to leave the house, the husband assaulted her again. He then abused her.

   [60] On 1 November 2004, an argument developed between the parties in relation to who might be the godparents of the child. The husband then assaulted the wife. He punched her on the arm and kicked her legs and on the bottom. He then pressed her head against the floor causing pain. He shouted at her and claimed he had the right to do what he did.”

3. As indicated, as part of his findings, His Honour (at paragraph 80 of his reasons) accepts what the wife set out in her affidavit sworn 7 April 2008.  The affidavit contains evidence of the husband’s conduct which His Honour has accepted as factual.  That affidavit provided a more detailed description of what has been summarised by Rose J, as quoted in paragraph 5 of these Reasons.  The evidence at paragraphs 14 and 15 of affidavit of the wife is as follows:

   “[14] During the marriage I suffered physical violence from [the husband] on 5 occasions.

   (a) In about August 2003 we were living in my unit at [C] and house-hunting on weekends. On one weekend [the husband] and I were standing in the bedroom of my unit. We had a discussion about the house-hunting during which [the husband] began yelling at me things like “you should be more committed to finding a place for us”. I said “I am but I need to take an hour off to watch [S] play netball”. [The husband] kept yelling at me and then used both his open hands to hit me hard on the upper chest and push me backwards onto the bed. I crawled off the other side of the bed. [The husband] came around and pushed me back on the bed with force. This happened 3 or 4 times during the episode. The episode lasted about an hour. It ended when my father came to the door.

   (b) On a Thursday night in late October or November 2003 [the husband] and I had been to counselling. [The children] were staying at my parent’s home. [The husband] and I returned to the house at about 10:45pm. I prepared for and went to bed. [The husband] came into the bedroom and dragged me out of bed by my ankles. He dragged me by my ankles across the timber bedroom floor and then along the slate hallway. [The husband] threw me up against the wall at the end of the hallway. [The husband] gripped my pyjama top ripping a button. [The husband] pushed me against the wall. [The husband] used his hands to grip my upper arms and shoulders against the wall. [The husband] pushed me backwards and forwards against the wall with such force that my upper back and head was [sic] hitting the wall. I crouched down to try and protect myself. [The husband] picked me up and gripped my arms and again pushed my back and head backwards and forwards against the wall with force. During the time [the husband] dragged me along the floor and hit me against the wall [the husband] was shouting at me things like:

   ·    “you’re selfish and do not think of me.”

   ·    “I am your husband.”

   ·    “You didn’t even think if I would be hungry”.

   The only thing I said to [the husband] throughout the episode was “Stop – you’re hurting me”. I said this about 4 times. Each time I said this [the husband] paused but then began again hitting me against the wall. The episode lasted about 10 minutes and ended when I managed to get my hands to [the husband’s] shirt and pushed him away. I later saw that [the husband] had a scratch on his chest. After the episode I went back to my bedroom and was shaking and crying. I sat on the bed and continued crying. [The husband] came back in and walked around the bed from one end to the other and back. [The husband] was talking loudly at me saying things like “you are selfish” and “you are spoilt”. I cannot remember all the things [the husband] said. I felt cold and numb. This went on for about 3 hours, during which the whole time [the husband] was shouting at me and walking around the bed. I cannot recall much of what I said to [the husband]. I was afraid of saying much to [the husband] at all. I recall saying “If you were hungry why didn’t you get something yourself.” I recall saying 2 or 3 times “Please can we turn the light off and talk about it tomorrow?” In response to that [the husband] said “No we need to talk about it now.” I was afraid of lying down and trying to sleep in case [the husband] hit me again or dragged me away. I felt by sitting up I could watch what he was doing. One of the last things I recall [the husband] saying was “You should write me an apology letter that you will not neglect me again.” When I finally lay down I remember the time on the bedside clock was about 2:10AM. The next day I had bruising on my upper arms. I did not go to the doctor nor to the police. I did not tell anyone about this episode. I felt embarrassed and humiliated. I do not know if I was pregnant with [N] at the time.

   (c) On a weekend in March 2004 I was at the home. I say it was March because I was about 4 months pregnant with [N]. I say it was a weekend because the children and [the husband] were at home during the day. [The husband] and I were having an argument. It was daytime. I do not recall the details but I recall [the husband] was yelling. [The husband] and I were both standing. [The husband] was in front of me and suddenly grabbed me by the upper arms and pushed me back onto the bed forcefully. [The husband] then immediately grabbed my ankles and dragged me onto the floor. I started yelling “Stop”. I saw my son [M] start to walk downstairs from the upstairs level where his room was. There is a telephone on the downstairs level but not on the upstairs level where [M] was. [The husband] turned and saw [M] and shouted to [M] in an aggressive and angry tone of voice “What are you doing”. [N] said “I’m calling the police”. [The husband] shouted “go back upstairs now”. [The husband] ran out of the bedroom towards [M]. [M] ran back upstairs. [The husband] stopped chasing [M] and came back into the bedroom. During the time [the husband] ran out of the bedroom I crawled back onto the bed. When [the husband] returned he grabbed me with both hands by my ears and hair and dragged me back onto the floor. [The husband] pinned me to the ground. The left side of my face was against the floor and [the husband] was above me and placed his hands on the right side of my face and applied downwards pressure. I felt a surge of intense pain in my head from the pressure. I shouted “stop, stop, stop”. [The husband] was shouting at me but I do not recall the words. I again shouted “stop, stop, stop”. I am not sure how long the episode lasted but I think it was about 15 minutes in total. During this 15 minutes [the husband] pressed my head into the floor for 2 or 3 minutes, released for a minute or so, then pressed my head back into the floor for another 2 or 3minutes. He repeated this throughout the 15 minutes. Each time [the husband] applied pressure forcing my head down to the floor I felt intense pain in my head. Each time I shouted “stop”. I recall [the husband] was shouting something to me but I cannot recall the words. When [the husband] eventually released me from the floor I crawled to a corner and crouched down. The left side of my head was numb. I also felt physically numb all over and felt in shock. [The husband] then started to talk at me in a loud voice. I said something like “I’m going” or “I’m leaving”. [The husband] said “just like your first marriage.” This went on for 1 or 2 hours during which the whole time [the husband] was shouting at me and walking around the bedroom. I don’t recall saying anything. I stayed in the one spot with my knees up and my arms wrapped around my knees. I did not want to antagonise [the husband] in case he attacked me. I don’t recall how the episode ended. The next day I had bruising on my upper arms at the positions [the husband] had gripped me. [M] pointed at my bruises and said to me “Are they from yesterday?” I said “I’ll be OK. Don’t worry about it.” I did not go to the doctor nor to the police. I did not tell anyone about the episode. I felt embarrassed and humiliated.

   (d) On a weekend in June 2004 I was at the home. I say it was June because I was about 7 months pregnant with [N] and heavily so. I say it was a weekend because the children and [the husband] were home during the day. I was sitting on the bed in the bedroom when [the husband] came in. [The husband] began to talk to and at me in a loud voice with an aggressive tone. I do not know what caused [the husband] to suddenly talk loudly. [The husband] suddenly lunged at me, grabbed my ankles and dragged me off the bed. I crawled back onto the bed and broke my ankles free of [the husband’s] grip. I said “That’s it. I’m not putting up with this”. I took a suitcase from the wardrobe and started to pack clothes. I started to walk through the doorway and out of the bedroom. [The husband] grabbed me from behind my upper arms. [The husband] dragged me back into the bedroom and threw me onto the bed. We had the following exchange:

   [Husband] “I’m sorry. I don’t want you to go.”

   Me“You’ve got a problem with aggression […]. You need to see someone.”

   [Husband]“You’re the one with the problem.”

   I felt shaken and afraid. I didn’t try to get off the bed. I crawled to the centre of the head of the bed which was against the wall. I raised my knees up against my belly and wrapped my arms around my knees as far as they could go. [The husband] talked to and at me for 1 or 2 hours. I felt very afraid. I did not say much if anything. I recall saying in a loud voice “would you please stop yelling”. The episode ended when [the husband] said to me “You have broken a promise by threatening to walk out” and I said “I promise I won’t walk out”. I don’t think I had any bruises. I did not go to a doctor nor to the police. I did not tell anyone about the episode. I felt embarrassed and humiliated.

   (e) On Monday, 1 November 2004 I was at home in the evening. [N] by this stage was just over 2 months old. We had finished dinner and the children had gone to bed. [The husband] and I were talking about [N’s] baptism planned for 3 December 2004. We had a difference of opinion as to Godparents. This developed into an argument. [The husband] said “you’re selfish”. Both [the husband] and I were sitting on the couch. [The husband] suddenly got up in front of me and grabbed my hair and ears on the side of my head and dragged me onto the ground. When I was lying on the ground in front of the couch [the husband] started punching me on the arms and kicking me on my legs. I think [the husband] was wearing running shoes. [The husband] then punched and wrenched my left arm pulling it upwards. I crouched in towards the couch and held my arms around my belly where I had had a caesarean operation about 10 weeks previously. [The husband], who was still holding my left arm up, kicked me on the bottom. Whilst punching and kicking me [the husband] was yelling things like “You’re so spoilt” and “You only think of your family”. I was shouting “Stop. You’re hurting me.” I was crying and felt intense pain in my arm which I thought had been broken. [The husband] released his grip on my arm slightly. This episode last [sic] about 5 minutes after which [the husband] stopped kicking and punching me and I crawled onto the couch into a foetal position. [The husband] sat beside me. [The husband] started talking loudly to and at me for about 10 minutes. I felt shocked. I do not recall the words but only that he was shouting and his voice was angry. I then said something like “Was your father a violent man?” [The husband] became angry and stood up and dragged me by my ankles back onto the ground and began punching and kicking me. I shouted “Stop. You’re hurting me”. I was lying on my left side holding my knees up and my arms around my knees and belly. [The husband] stopped punching and kicking me but then pressed my head into the ground such that the left side of my face was against the floor. [The husband] was above me and placed his hands on the right side of my face and applied downwards pressure. I felt a surge of intense pain in my head from the pressure. [The husband] said “apologise for what you said and say you will never say it again.” I said “I’m sorry”. [The husband] then released me. I crawled back onto the couch and crawled into a foetal position again. [The husband] began shouting at me. [M] and [S] had been in bed. I saw [S] walk to the bathroom. I went down to the bedroom and sat on the bed. [The husband] and I had a conversation:

   Me:“You’ve got a problem. You need to see someone.”

   [Husband]:“It’s you. If you ever speak to me like that I have every right to do what I did. Do you accept that?”

   Me:“Yes”. I said this to keep [the husband] quiet.

   [15] On 2 November 2004 I woke up and had bruising on my arms and legs. [The husband] got up and went to work at his normal time of about 7:20AM. [M] and [S] had earlier come into my bedroom. They both looked at my bruises. [M] said to me “Are you alright?” I said “We’ll be OK”. [S] said to me “We can’t stay.” I said “Get ready for school. Go to school. I’ll sort something out.” [M] and [S] went to school. I telephoned someone who later collected me and [N] from the home. I took with me goods for the children and some basic clothes for myself.”

4. Rose J made further factual findings which can be found amongst the following discussion by His Honour:

   “[61] The wife also alleges that the husband was frequently abusive towards her, at times unpredictably and without apparent reason. The wife did not report the husband’s alleged violence to the police or anyone else, with the exception of the incident which occurred on 1 November 2004.

   [62] The husband was charged with common assault and assault occasioning grievous bodily harm. Apprehended Violence Order proceedings were also instituted by the police against him.

   [63] [In] March 2005, in the Local Court, […], the husband pleaded guilty to the charge of common assault. He was convicted and placed on a good behaviour bond for 12 months. An Apprehended Violence Order was also made on the same date against the husband for the protection of the wife and the three children. The Apprehended Violence Order was for a period of 12 months.

   [64] [In] May 2005 in the District Court, on appeal by the husband, he was found guilty, a conviction not recorded, and the husband was discharged upon entering into a good behaviour bond for 12 months.

   [65] The husband denies all of the allegations made by the wife of violent and/or abusive conduct towards her, except for part of his alleged violent conduct towards her on 1 November 2004. He admits be restrained her by her arm and slapped her on the bottom.

   [67] Affidavit evidence was given by [Ms Y], a social worker. Ms [Y] conducts a counselling and therapy practice. Ms [Y] is a social worker of substantial experience. The wife has been consulting Ms [Y] since 11 January 2005 to enable her to manage stress and anxiety as a result of the alleged domestic violence. Ms [Y] concluded that the wife has suffered from post traumatic stress symptoms due to the alleged violent conduct of the husband. Ms [Y] was not required for cross-examination. I accept her evidence which is detailed and professional.

   [68] The appointed child expert Dr [R], a child and family psychiatrist, provided a full expert report completed in about October 2007 and annexed to her Affidavit sworn 2 November 2007. That report was prepared following her interviews with the parties and the two eldest children.

   [72] Dr [R] expressed the opinion in her report and oral evidence that, if the wife’s allegations of violent and abusive conduct by the husband is accepted, then her symptoms of stress and anxiety are consistent with her having suffered trauma due to conduct as alleged and/or violent conduct by the husband and that Ms [Y’s] conclusions are well supported.

   [73] I accept Dr [R’s] evidence in relation to those matters and find accordingly.”

1. The wife also seeks to rely on the Affidavit evidence of Ms Y and Dr R, and photos detailing bruising the wife received. The photographs were part of ‘Exhibit 8’ before Rose J.

2. Exhibit 8 was referred to in paragraphs 66, 85 and 102 of Rose J’s judgment. These paragraphs are as follows:

   [66] Exhibit 8 comprises the Court papers provided by the Local Court, […], and the District Court in the proceedings to which earlier reference has been made. It includes photographs showing severe bruising to the wife’s left arm, left leg and left buttock.

   [85] I also have given weight to the photographs and “Statement of Full Facts” as well as the testimonial of [Mr K] which are inconsistent with the husband’s evidence that he merely restrained the wife by the arm and smacked her perhaps lightly on the bottom on 1 November 2004.

   [102] In my view, it is not a coincidence that the only violent conduct that the husband admits he perpetrated against the wife was arising out of the one incident he could not refute.  That was the incident on 1 November 2004 which the wife reported to the police and corroborated with photographs as contained in Exhibit 8.

3. The Husband wishes to file further evidence about the events of the five relevant days between August 2003 and November 2004 and re-examine witnesses rather than allow the Court to rely on the factual findings of the parenting case made by Rose J.

RELEVANT LEGAL PRINCIPLES

1. The law regarding admitting a finding of fact in another case is contained in the s 91 Evidence Act 1995 (Cth) (“EA”) which states:

   (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. Section 91(1) EA is, however, limited by s 93(c) EA:

   This Part does not affect the operation of:

   (c)  the law relating to res judicata or issue estoppel.

3. Issue estoppel creates a restriction against the reintroduction of an issue upon which a finding of fact has previously been made. The same parties are not permitted to reintroduce the same issue which has already been decided: Parkin v James (1905) 2 CLR 315; Outram v Morewood (1803) 102 ER 630.

4. In Blair v Curran (1939) 62 CLR 464 Dixon J explained at 531 that “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties”.

5. To attract issue estoppel, the factual findings must be fundamental to the ultimate decision which the Court had determined: “In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action” (Blair v Curran (1939) 62 CLR 464).

SUBMISSIONS

1. The husband’s submissions can be summarised as follows:

   16.1.Section 91(1) EA applied to restrict the importation of findings of fact from the earlier parenting trial.

   16.2.Section 91(c) EA with respect to res judicata does not operate to limit s 91 EA because although the parties are the same, they are not litigating the same subject matter.

   16.3.Section 91(c) EA in relation to issue estoppel should not operate to limit s 91(1) EA because the factual findings will take on a different character in relation to parenting proceedings compared to the character they have in property proceedings. The husband submits that the violence is to be assessed in a very different way and is linked to ascertaining whether the family violence impacted upon the wife’s contributions.

   16.4.The husband cites Porter v Porter [1971] 2AllER 1037 at 1039 per Ormrod J who explains that it is difficult to ‘do justice’ in family law cases where estoppel rules may restrict presentation of the ‘realities of the situation’.

   16.5.The husband also cites National Mutual Life Association of Australia Pty Ltd v Grosvenor Hill Qld [2001] FCA 237 which the husband submitted held that factual evidence from another case is inadmissible, as it merely gives evidence of another Court’s opinion. That is not a submission that can be made relying upon the authority cited.

2. The husband did not submit that s 69ZT FLA was significant in the matters which I am being asked to rule upon. It was not argued that, when making the relevant findings, Rose J relied upon any material that would not ordinarily have been admissible.

3. Wife’s written submissions are summarised as follows:

   18.1.The Judgment of Rose J dated 19 December 2008 is admissible for the property proceedings in so far as it relates to findings of family violence.

   18.2.Rose J judged that issues of family violence lay “very much at the heart of these proceedings”. The wife was thoroughly cross-examined in relation to the violence alleged, as was the husband.

   18.3.Numerous factual findings were made in relation to family violence in paragraphs 48 to 102 of the judgment, most importantly the finding in paragraph 80 that the husband had engaged in “violent and abusive conduct to the wife as alleged by her in each of the five incidents… which are set out in her affidavit”.

   18.4.Findings were also made at paragraphs 67, 72, 73 about the effect of the violence on the wife’s health, as assessed by psychiatrist and social worker.

   18.5.Issue estoppel, as per s 93(c) of the Evidence Act should apply to the factual findings in this matter to save the findings from being precluded by s 91(1) EA from admission in further proceedings.

   18.6.The wife says the husband’s submission relying upon Porter can be distinguished as relating to the re-litigation of children’s proceedings. This case rather refers to facts being taken from children’s proceedings and applied in property proceedings. Issue estoppel has been implemented in family law cases, such as Blackman v Blackman (1998) FLC 92 – 971.

   18.7.Issue estoppel should apply in the current case where the issue of whether violence occurred and its effect on the wife’s health is the same in both the parenting and property proceedings, and the parties are the same. The wife submits that the issue of violence for s 79 FLA is broken up into two steps:

   18.7.1.findings of fact in relation to the husbands conduct; and

   18.7.2.the effect of this violence on the wife’s condition, and therefore her contributions.

   The wife submits the first step is the same in parenting and property proceedings.

4. Husband’s counsel made the following oral submissions:

   19.1.That the factual findings made for one purpose (that of parenting orders) cannot be used for another purpose (assessing property contribution). It was argued that the examination of the evidence required looking through different ‘goggles’.

   19.2.That the paragraphs of the Judgement dealing with the accepted facts are too brief to enable analysis for a Kennon based argument, even with the corresponding paragraphs of the wife’s Affidavit. Further evidence is therefore required.

   19.3.That to cross-check the Judgment with the Affidavit requires interpretation of which particular paragraphs are referred to. The findings are therefore too uncertain.

5. The wife’s counsel made the following oral submissions in reply:

   20.1.That the husband had every opportunity to put the whole of his evidence regarding violence before the Court and did not suggest there was any further relevant evidence to add.

   20.2.That the paragraphs of the wife’s Affidavit that are to be relied upon may be predetermined in the current hearing.

DISCUSSION

1. One of the rationales for issue estoppel is the same as for res judicata, namely the public interest in finally determining disputes and avoiding unnecessary re-litigation.  Another is to avoid inconsistent judgments.

2. I agree with the wife’s submissions that the approach regarding family violence in property and parenting proceedings can be broken down into steps, however I think the process should be broken down into three steps rather than two.  Those steps are:

   22.1.make findings of fact about one party’s conduct;

   22.2.(if applicable) make findings about the physical or psychological effect of the conduct on the other party;

   22.3.make findings of fact about the effect of the conduct of one party upon contributions made by the other party.

3. It may not be automatically assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions (as submitted in paragraph 18.7.2 above).  For example, Strickland J’s commented in Spence and Spence [2008] FamCA 263 at [163]:

   “There is no doubt that there was some domestic violence during the marriage, but there is no basis to find that “there was a course of violent conduct” by the husband which had “a significant adverse impact” upon the wife’s contributions to the marriage.  There is simply no evidence provided by the wife to establish the link between any domestic violence by the husband and any impact on her contributions.  Certainly the report of the psychologist does not assist in this regard. It does not assist the wife that she may be suffering from post-traumatic stress disorder.  That says nothing about whether any conduct by the husband made her contributions “significantly more arduous than they ought to have been”.  Thus, this is a claim that cannot succeed.”

4. Whether I am prepared to infer the wife’s post traumatic stress, in this case, made her contributions significantly more arduous, will be a matter to consider after further submissions.  The wife may choose to lead further evidence about that connection at the final hearing.

5. The wife in this case will have to establish to my satisfaction at trial, a connection between any proven family violence in this case and contributions she has made, for the family violence to be relevant in this property matter. 

6. In both parenting and property proceedings where family violence is involved, the first step is the same, namely, making findings as to the circumstances in which any family violence took place.

7. The second step is also the same, that is, to ascertain the effect of the family violence on the victim’s physical and mental health and well-being.

8. The process only differs in the third step. In parenting proceedings the third step involves assessing the likely effect of the family violence on what is in the best interests of a child. This will involve a consideration of matters such as those described in ss 60CC(2)(b) and ss 60CC(3)(b), (c), (f), (j) and (k) FLA. In property proceedings the third step involves an assessment of whether the victim’s contributions to the marriage have been made significantly more arduous by their diminished health and well being as a result of family violence, or as the Full Court put it another way in Kennon, the wife in this case would have to establish that the course of violent conduct by the husband towards her during the marriage is demonstrated to have had a significant adverse impact upon the wife’s contributions to the marriage.  The third step is unique to each proceeding, but the first and second steps are identical.

9. Clearly s 91(1) EA does apply to this matter. Although the parenting and property proceedings were originally was set down as one hearing, the hearing was split and will be heard by different judges.

10. Section 93(c) EA however acts to save factual findings from being precluded by s 91(1) EA if the law relating to issue estoppel operates. Issue estoppel exists where the same parties seek to reintroduce an issue that has already been determined. I accept the submission of the wife that the issue of family violence and its effect on the wife’s mental health and well-being is the same issue in both the children’s and property hearings. This same issue should not be re-litigated.

11. For issue estoppel to apply the findings of fact must be central to the ultimate decision. The findings of violence and their effects were a central issue in the parenting proceedings (and Rose J said so at paragraph 48).  They are also central to the wife’s argument about contributions, relying upon Kennon in the property proceedings.  I am content that the exploration of issues of violence before Rose J was comprehensive. 

12. I am not persuaded by the husband’s submissions that issue estoppel should not be used in family law cases. The husband’s argument holds more weight if this were a proceeding to re-litigate children’s issues. There is much authority for avoiding the use of issue estoppel when cases are concerning the child’s best interest. This approach is explained in Schorel v Schorel (1990) FLC 92-144 at [77996]:

    “issue estoppel … has a much more limited application in matrimonial causes, and more especially in litigation which involves the welfare of children.  That approach is based upon the view that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts, but more particularly it is based on the obligation of such courts to have regard to the welfare and protection of children within its jurisdiction.

13. We are not applying issue estoppel to children’s proceedings however, but to property proceedings. I do not believe that a clear finding of fact should be re-litigated at the expense of both the parties and the court, just because the proceedings are a matrimonial cause. 

14. Once the operation of s 91 EA has been precluded by s 93(c) EA, I still have a general discretion to exclude the evidence contained in s 135 EA. This section reads as follows:

    The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

    (a)be unfairly prejudicial to a party;

    (b)be misleading or confusing; or

    (c)cause or result in undue waste of time.

15. ‘Unfairly prejudicial’ holds a particular meaning in law, defined by the ALRC (ALRC 26, vol 1, para 644) as “the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case”.  The findings in relation to violence are logically connected to the case presented by the wife. Their probative value is not outweighed by any unfair prejudice. 

16. The counsel for the husband raised concerns that the findings of fact were too uncertain due to the cross referencing required between the Judgment and the wife’s affidavit. I do not accept this submission. Subject to any argument about relevance, paragraphs 4 to 7 and 9 of these Reasons set out the facts upon which the wife will be able to rely in the final property proceedings before me. There is no uncertainty about Ms Y’s evidence and the photographs in Exhibit 8. There is no confusion which would attract s 135(b) EA. I also do not believe the finding of facts arising from Rose J’s determination is in any way misleading.

17. Section 135(c) EA and issue estoppel are the opposite sides of the same coin. The public policy aims are the same. Section 135(c) EA is designed to avoid the court’s time being used hearing about matters that are peripheral. On the other hand, issue estoppel is applied to avoid rehearing evidence about central issues. In this case it is estimated by counsel that to air evidence of violence afresh will involve two days of hearing. Both the Applicant’s and the Respondent’s lawyers indicate that questioning would involve approximately one day each. The proposed re-examination of the previously heard material is exactly what s 93(c) EA is trying to avoid. The public policy underpinning of s 93(c) EA seeks to save the parties and the Court the costs of re-examining the same facts. Another two days re-examining facts upon which Rose J has already passed judgment will certainly create unnecessary costs.

18. I am not, as a matter of discretion, persuaded to exclude the factual findings of Rose J. 

THE FINDINGS AND PROVEN FACTUAL MATTERS STILL NEED TO BE SHOWN TO BE RELEVANT

1. Implicit in the wife’s contention that the course of domestic violence in this case enlivens the principles in Kennon, is an assertion by the wife that a finding will be made at the final hearing that establishes that the course of violence or the post-traumatic stress which it has caused, has made the wife’s contributions significantly more arduous. 

2. As I have already said, it is open to the wife at the final hearing to ask me to make that finding (at what I have referred to as the third stage) by inference.  However, that may or may not be an inference I am prepared to draw.  On the other hand, the wife may seek to lead evidence which establishes that the course of violence and/or her post-traumatic stress symptoms made her contributions significantly more arduous. 

3. Consequently, the decision that the wife is able to rely upon findings made by Rose J about the course of violent conduct and/or the wife’s post-traumatic stress symptoms is provisional upon the wife establishing that those matters are relevant.  The relevance of the findings cannot be determined conclusively until a finding is made in the wife’s favour that her contributions have been made significantly more arduous. 

CONCLUSION

1. The factual findings provisionally admitted will be those parts of Rose J’s Judgment and the wife’s affidavit as excerpted at paragraphs 4 - 7 of these Reasons. 

2. Subject to any argument about relevance, I will accept into evidence paragraphs 66, 85 and 102 of Rose J’s Reasons together with the photographs in Exhibit 8, but no other part of that exhibit.

3. The Affidavit of Ms Y sworn 19 December 2010 will also, subject to relevance, be accepted as evidence in the property proceedings. This is appropriate given the factual finding made by Rose J in paragraph 67, transcribed above, accepts Ms Y’s evidence without reservation.

4. Conversely, paragraph 68 and 72 do not directly adopt facts and opinions in Dr R’s report, but rather, make findings based upon Dr R’s report. I was not taken to a specific part of the report by counsel for the wife to expand upon Rose J’s findings. Dr R’s report will not be admitted as evidence in the property proceedings, although paragraphs 68, 72 and 73 of Rose J’s Reasons shall be.

5. I will provisionally import these findings and proven factual matters into the hearing of the property matter.  As I have said, the wife will still need to demonstrate the findings and proven factual matters are relevant. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  19 March 2010.