EATON & EATON
[2020] FamCA 446
•4 June 2020
FAMILY COURT OF AUSTRALIA
| EATON & EATON | [2020] FamCA 446 |
| FAMILY LAW – EVIDENCE – Application by the husband to strike out paragraphs of the wife’s affidavit of evidence in chief which relate to allegations of conduct amounting to serious physical, sexual and emotional abuse of the wife by the husband throughout their relationship and since separation – Where the wife is seeking a ‘Kennon’ adjustment – Where the husband contends that the wife has failed to demonstrate any nexus between the alleged conduct and any contributions she asserts to have made during the marriage and, as a result, those paragraphs of her affidavit should be excluded, or alternatively, that her evidence does not have sufficient probative relevance to have any material impact on the outcome of the proceedings and should be excluded on that basis – Where it is accepted that the wife’s case falls within the exceptional category identified by the Full Court in Kennon and where it is accepted that the evidence is probative in respect of crucial matters in issue in the proceedings – Where the objections raised by the husband are overruled and dismissed. FAMILY LAW – EVIDENCE – Expert evidence – Where there is dispute about the wording of a letter of instructions to be jointly provided to the single accounting expert engaged by the parties to provide evidence as to the value of the husband’s interests in a multitude of business entities – Where the parties will send a joint letter of instruction to the single expert in the form of the draft proposed by the husband. |
| Britt v Britt (2017) 56 Fam LR 526 Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 13th edition, 2018) |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) s 55, s 135, s 140 |
| APPLICANT: | Ms Eaton |
| RESPONDENT: | Mr Eaton |
| FILE NUMBER: | BRC | 4844 | of | 2016 |
| DATE DELIVERED: | 4 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 26 March 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Coleman SC |
| SOLICITOR FOR THE APPLICANT: | David Cohen & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Williams QC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
That those parts of the Applicant wife’s affidavit filed 4 February 2020 ruled through in red and initialled by his Honour Justice Forrest are, by the agreement of the parties, excluded from the evidence filed by the Applicant wife upon which she intends to rely at the final hearing of her property adjustment application in this matter.
That those parts of the Applicant wife’s affidavit filed 4 February 2020 ruled through in blue and initialled by his Honour Justice Forrest, including documents exhibited to that affidavit referred to in those parts, are excluded from the evidence filed by the Applicant wife upon which she intends to rely at the final hearing of her property adjustment application in this matter.
That coloured copies of the Applicant wife’s affidavit filed 4 February 2020 showing the rulings referred to in paragraphs (1) and (2) of these Orders be provided forthwith to the parties’ solicitors.
That on or before Thursday, 16 July 2020, the Applicant wife shall file and serve any affidavits of medical or allied health practitioners upon which she intends to rely at the final hearing of her property adjustment application in this matter.
That the remaining objections raised by the Respondent husband to the Applicant wife’s affidavit filed 4 February 2020 are overruled and dismissed.
That the joint letter of instruction to be sent to Mr B of C Firm, Chartered Accountants, in respect of the provision of an updated valuation report shall be in the form of the draft proposed by the Respondent husband in paragraph 10 of his affidavit filed 17 February 2020.
That the matter shall be listed for directions before a Registrar of the Court for further directions on a date to be fixed and advised to the parties.
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 Eaton & Eaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4844 of 2016
| Ms Eaton |
Applicant
And
| Mr Eaton |
Respondent
REASONS FOR JUDGMENT
On 27 June 2019, orders were made by another Judge of this Court listing these property adjustment proceedings for a five day trial before me commencing on 18 November 2019 during a proposed mini-“blitz” of hearings in this Registry of the Court. On 18 October 2019, I made orders vacating the trial dates and listing the matter for further mention before me on 31 January, this year. I did that after being satisfied that the matter was not going to be ready for a trial on the listed dates. I also made some further orders in respect of trial preparation and noted that there might be disputed objections in respect of the affidavit evidence of the Applicant wife that, unless resolved, would require an interim hearing and determination.
Ultimately, some agreement was reached in respect of the inadmissibility of certain parts of the wife’s filed affidavit of evidence-in-chief, but there remained dispute about the admissibility of substantial parts of her affidavit evidence. There also remained dispute about the wording of a letter of instructions to be jointly provided to the single accounting expert engaged by the parties to provide opinion evidence as to the value of the Respondent husband’s interests in a multitude of business entities.
Those interim matters in dispute were listed for hearing before me on 26 March 2020. The hearing proceeded on that day electronically by the Globalmeet telephone conferencing platform due to the restrictions currently in place because of the coronavirus pandemic. I was in the court room. Senior Counsel appearing for each of the parties appeared from remote locations by their telephones. Each had forwarded written outlines of submissions to the Court prior to the hearing commencing. I heard their oral submissions and I reserved my judgment.
I regret not being able to deliver judgment before now, just over two months later. I have had heavy sitting commitments hearing other matters in the period since hearing this matter, including a parenting orders trial that was originally listed for 5 days that took 19 days to conclude via an internet video conferencing platform.
Some Background
At this point in time, only the wife has filed her trial affidavit of evidence-in-chief. It was filed on 4 February 2020. In that, she deposes to commencing a relationship with the husband in early 2003, marrying him in … 2007, and separating from him in July 2015. Both parties had been previously married and each has an adult child from their former marriage. They had no children together.
The wife and her daughter arrived in Australia in January 2002. The wife asserts that she arrived in Australia still owning an apartment in Country D which she sold a year later. She asserts that she transferred the proceeds of sale to Australia and that when she started living with the husband she had about $360,000 in the bank. She asserts that he owned a property in Brisbane which was subject to a mortgage debt and that he also had a motor car.
The wife deposes to a history of property acquisitions during the period of the relationship. She also deposes to having been in paid employment herself between 2003 and 2009.
As for the husband’s employment, the wife deposes to the husband informing her when they met that he was “involved in the property market” and that he was the “national director” of a business group. It appears to be common ground that the husband now has interests in significant business entities that could very well be of substantial value, though the value of those interests is a matter upon which single expert opinion evidence is still being obtained.
The Husband’s Objections
By far the largest part of the wife’s affidavit of evidence-in-chief (roughly 22 pages of the 40 page affidavit) is evidence the admissibility of which the husband objects to. Clearly, he has sought determination of the disputed admissibility of the evidence before he is required to depose to his own affidavit of evidence-in-chief in which he might be expected to respond to the wife’s evidence if it is determined admissible.
As is a common practice in property adjustment litigation in this Court when objections to affidavit evidence are taken, Queen’s Counsel for the husband prepared a table listing the husband’s objections to the wife’s evidence. That table lists those objections paragraph by paragraph and is just over 4 pages long. In response, Senior Counsel for the wife has prepared a similar table in which he sets out the wife’s response to each of the objections of the husband on a paragraph by paragraph basis.
For the wife, as I have said already, a relatively small number of the objections were conceded. As for those, I shall go through the hard copy of the affidavit that is kept on the Court’s file and rule through the parts conceded by Senior Counsel for the wife as being inadmissible.
Having read the written outlines of submissions provided to the Court by both Senior Counsel before the hearing of the matter, I informed both of them that I would hear from them by giving each of them the opportunity to make their oral submissions in a general sense (as accorded with the approach each has taken in his written outline) rather than by going through each specific objection on a paragraph by paragraph basis. No opposition was expressed to that suggested course and each barrister, by his subsequent approach, took it up, making general submissions to supplement his written submissions.
The General Nature of the Evidence
I consider it fair to describe the most significant portion of the evidence that is objected to as containing multiple allegations of conduct amounting to physical, sexual and emotional abuse of the wife by the husband throughout the history of their relationship and since separation. Another smaller yet still significant part of the evidence that is objected to relates to medical matters pertaining to the wife’s health, including reference to medical practitioners she has received treatment from, documents produced by them and opinions expressed by them. I consider those two broad categories should be dealt with separately in this determination.
The Allegations of Abuse
(A)The Husband’s Submissions
The husband’s objections to the evidence in which the wife alleges physical, sexual and emotional abuse are founded on either one or both of two specific grounds. It is submitted:[1]
(1)That the wife has failed to demonstrate that her case falls within the “relatively narrow band of cases”[2] within which authority permits allegations of conduct to be admissible, by failing to demonstrate any nexus between the alleged conduct and any contributions she asserts to have made during the marriage (the Kennon point); and/or
(2)That the wife’s evidence does not have sufficient probative relevance to have any material impact on the outcome of the proceedings such that the Court would exercise a discretion conferred by s 135 of the Evidence Act 1995 (Cth) (“Evidence Act”) to exclude it because it “has the potential to result in an “undue waste of time””.[3]
[1] See [6] of the written outline of submissions provided by Queen’s Counsel for the husband
[2] This is a quote taken directly from the Full Court’s judgment in Kennon & Kennon (1997) FLC 92-757 (“Kennon”) by Queen’s Counsel for the husband
[3]This is a quote taken directly from the provisions of s 135 of Evidence Act 1995 (Cth) by Queen’s Counsel for the husband
The Kennon Point
The wife accepts that she seeks to make a case for the Court to take the alleged abuse of her by the husband during their relationship into account in assessing the parties’ respective contributions within s 79 of the Family Law Act 1975 (Cth) (“s 79”). In doing so, she is relying on the authority of the decision of the Full Court of this Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”).
The relevant and often cited passage from the judgment of Fogarty and Lindenmayer JJ, in Kennon found at 84,294, is:
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.
A little further on in their judgment, their Honours went on, though, to say:-
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass… conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
(emphasis added by the writer)
For the husband, it is submitted that the principles pronounced therein are the appropriate starting point in the determination of the admissibility of this evidence. Reference was then made by Queen’s Counsel for the husband to two subsequent decisions of the Full Court. Those were S & S [2003] FamCA 905 (“S & S”) and Keating and Keating (2019) 59 Fam LR 158 (“Keating”).
In the first of those two cases, S & S, the Full Court said that the Kennon decision established that in order for a trial judge to be entitled to take conduct of a party into account in assessing the parties’ respective contributions within s 79, it is necessary for a party seeking that to establish:
(i)The incidence of domestic violence;
(ii)The effect of domestic violence;
and to adduce evidence to enable the court to quantify the effect of that violence upon the party’s capacity to contribute within the bounds of contributions considered pursuant to s 79(4).
In the second of those two cases, Keating, the Full Court (by 2-1 majority) cast doubt on the soundness of that part of the S & S decision that referenced the need for evidence to enable the court to quantify the effect of the violence upon the party’s capacity to contribute. In this respect, the majority Judges said this at 166, [39]:
… Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in S & S was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus… But we did not have the benefit of argument on the point (nor it seems did the primary judge) and prefer to express no final view about it.
Queen’s Counsel for the husband respectfully submitted, however, that nothing the Judges in the majority in Keating said casts any doubt upon the applicability of the principles espoused in Kennon in what he described as “three critical respects”. Those, he submitted, were that:
(1)The principles only apply to a “relatively narrow band of cases”;
(2)That there is a necessity for a party to demonstrate that the course of conduct has “had a significant adverse impact” upon that party’s “contributions”, or to have made such “contributions” “significantly more arduous” than they ought to have been; and
(3)That the conduct had a “discernible impact” upon the “contributions” (which I understood he submitted was “inter-related” to the second aspect just referred to).
Perhaps most critically, Queen’s Counsel for the husband went on to submit that “conduct alone, without … sufficient linkage to the assessment of contributions and to the necessary standard of proof, does not make the conduct per se relevant.”
I shall put aside at this juncture the submission that there is a requirement for there to be a linkage between the alleged conduct and “the necessary standard of proof” for the evidence to be relevant. In that, I consider Queen’s Counsel was referring to the requirement of s 140 of the Evidence Act for the Court to only find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities after taking into account such things as the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged. I shall put aside this part of the submission because I do not understand Queen’s Counsel to be submitting that the wife’s evidence objected to is inadmissible because it is incapable of being accepted pursuant to that standard. In this respect, it was not submitted that the evidence is so incredible, unbelievable or inherently impossible that it cannot possibly be accepted even before the husband responds to it or the wife is cross-examined upon it. Unless the evidence cannot possibly be believed, whether the evidence is ultimately to be believed or not is not the question to be answered in determining its admissibility on the grounds of relevance.
Seemingly relying on the other part of his submission about “conduct alone” just referred to, Queen’s Counsel for the husband went on to submit that the wife does not “seek to demonstrate, (let alone establish with any precision) any causal link between that alleged conduct on the one hand, and any contributions she might assert on the other hand.” Queen’s Counsel submitted further:
There is no evidentiary nexus in the wife’s affidavit between the conduct complained of, and the capacity (and/or effort expended) to make relevant contributions.
Having submitted that, Queen’s Counsel went on to submit that the Full Court in Kennon confined the issue to a case put forward with evidence linking conduct to a “significant adverse impact” or a “discernible impact” upon a party’s contributions, or which made such contributions “significantly more arduous” than they ought to have been. He submitted that the wife’s evidence that is objected to:
... fails to establish sufficient particulars of the incidences of domestic violence, the effect of domestic violence, and importantly any evidentiary nexus between the alleged conduct and the wife’s capacity and/or effort expended to make relevant contributions.
The s 135 Evidence Act Point
Queen’s Counsel for the husband submitted that in the absence of evidence asserting nexus between the alleged conduct and the “quality and nature” of her contributions, the probative value of the evidence of conduct “is not great”. He then submitted that its probative value is so outweighed by the danger that the time that will be devoted to considering and assessing each of the allegations will be such that it will be unduly wasted. If correct, this would bring into play the discretion the Court is given by s 135 of the Evidence Act to refuse to admit the evidence, which Queen’s Counsel submitted the Court should exercise.
(B)The Wife’s Submissions
Relevance
Senior Counsel for the wife did not just make submissions responding to the twin submissions made for the husband. Rather, he submitted that the evidence of the wife that is objected to is admissible because it has relevance to three issues in the proceedings, namely:
(1)The nature, quality and characteristics of the wife’s contributions;
(2)The wife’s claim in reliance upon the principles established in the Kennon case; and
(3)The factual foundation or basis for the expert opinion evidence with respect to the psychiatric health of the wife (referencing Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705) (“Makita”).
Senior Counsel referred directly to the definition of “relevant evidence” contained in s 55 of the Evidence Act and submitted that the evidence objected to satisfies the criteria for relevance articulated therein. He submitted that relevance for the purposes of s 55 is broadly interpreted and stressed that the use of the word “could” in the section has been held consistent with that broad interpretation and means “it is possible that it may”. He went on to submit:
... that the requirement of a connection between the evidence and the facts in issue is established with respect to each of the categories of facts in issue identified above.
Senior Counsel referenced a joint judgment of Gleeson CJ, Heydon and Crennan JJ in the High Court’s decision in Washer v Western Australia (2007) 234 CLR 492 in which their Honours said at 498:
In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.
Senior Counsel submitted that in this Court, the fact that the trial judge is the trier of fact nevertheless invokes the same statements of principle.
Senior Counsel submitted:
... the authorities… establish that the relevance of evidence does not depend on its capacity by itself to prove anything, and that the assessment of the probabilities must be made in the context of other evidence admitted at the time or later.
One of those authorities he referred to was the relevantly recent decision of the Full Court in the case of Britt v Britt (2017) 56 Fam LR 526 (“Britt”). He submitted that it establishes the multiple relevance of the wife’s conduct allegations in this case: the Kennon claim itself, context to other evidence in the case, evidence of the relationship in existence between the parties which may explain other actions taken by the parties in their financial relationships or in their relationships generally, and the credibility of the parties (the last mentioned of which, Senior Counsel submitted is saved by s 55(2)(a) of the Evidence Act).
Senior Counsel submitted that the wife’s evidence adduced in the s 79 property adjustment application in this Court is not to be viewed like “a series of claims for damages for intentional tort”. He submitted that the issues that have to be ultimately decided:
involve evaluative determinations of primary issues of fact, and findings or inferences with respect to them in the context of each of the three categories of relevance identified [in the earlier part of the written submissions].
He then went on to submit that the allegations of the wife which are objected to are, “at their most benign”, relevant to the Court’s evaluation of the nature, quality and characteristics of the wife’s s 79(4) contributions, though they are “capable of assuming greatest significance in the context of the [wife’s] Kennon claim”. Senior Counsel submitted that the relevance of the wife’s allegations are “comfortably accommodated by the judgment in Kennon”.
Senior Counsel returned to the decision in Britt and made the following submissions as that which the Full Court had accepted in Britt:
(a)Evidence may be given in “general terms” and terms “redolent of being a conclusion”;
(b)There is not a higher standard for the admissibility of evidence of domestic violence compared to evidence on other issues;
(c)The issue is whether evidence has sufficient, even if slight probative value, if accepted, to make it admissible, and, if it does, being a conclusion (not involving expert opinion) will not justify its rejection, unless it has no probative value;
(d)If evidence is not capable of bearing upon the existence of a fact in issue, it should be rejected;
(e)There is a “danger” in rejecting evidence before all the evidence in the case has been heard, after which the Court is able to determine relevance;
(f)An approach similar to the approach in summary dismissal applications is appropriate;
(g)Section 57 permits provisional admission of evidence which can be revisited when the evidence is complete.
Senior Counsel submitted that perhaps the most compelling point to emerge from the decision in Britt is the Full Court’s acceptance of the point that rejection of evidence of the kind adduced by the wife, before all the evidence in the case is in and there has been cross-examination on it, is tantamount to summary dismissal of a claim. He submitted that to exclude the wife’s evidence at this preliminary stage would constitute a denial of natural justice in circumstances where the Court cannot find that those allegations are incapable of having the requisite bearing.
Senior Counsel for the wife then turned to his third submission of relevance which he submitted is “independent of the first two categories of asserted relevance”. He referred to the fact that the Court has appointed an expert in psychiatry to provide a report with respect to the wife’s state of mental health. He went on to submit that the psychiatrist will “assume or accept some “facts” which the [wife] alleges and the [husband] will dispute”. Senior Counsel then referred to the well-known passage from the judgment of Heydon JA (as his Honour then was) in Makita in which his Honour observed that for the expert opinion to be admissible identification and proof of the facts which were assumed or accepted and those upon which any opinion was based was necessary. Senior Counsel then referred to the High Court decision of Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”) in which it was further observed at 664, [37] that:
... it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that ‘the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded’.
Senior Counsel then submitted that if the factual basis for an opinion is not disclosed, or no evidence is adduced to establish the basis, it may be concluded that the opinion evidence does not satisfy the requirement of relevance as it is not possible to determine whether it is capable of affecting the probabilities of the existence of a fact in issue. He referred to Quick v Stoland Pty Ltd (1998) 87 FCR 371 (“Quick v Stoland”) and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549 (“Sydneywide Distributors v Red Bull”) in support of that submission, as well as ASIC v Rich (2005) 218 ALR 764 (“ASIC v Rich”) for support of the proposition that an expert should disclose the underlying facts, or asserted factual basis, and the process of reasoning by which the opinion was formed.
Senior Counsel followed that up by submitting that if the evidence of the wife about the factual matters that form an important part of the psychiatrist’s opinion evidence is not admitted then the “report prepared by the expert will be constrained, and the report itself potentially inadmissible, denying the [wife] the opportunity to adduce evidence of a material issue in the proceedings.” In contrast, he submitted, if the wife’s evidence is not excluded and the allegations she has made are not accepted on the balance of probabilities, the weight afforded to the expert’s opinion evidence will be “constrained” but in circumstances “not infected by a denial of natural justice”.
The s 135 Evidence Act Point
Senior Counsel submitted that in the absence of any evidence of fact in reply to the wife’s allegations from the husband that the comparative analysis required by s 135 of the Evidence Act cannot be meaningfully undertaken. He submits that in the absence of any evidence from the husband, his assertion that the unfair prejudice caused to him by the wife’s evidence can simply be seen as being a complaint that it damages his case. Senior Counsel submitted that a complaint that the evidence tends to damage the husband’s case does not make it unfairly prejudicial.
Senior Counsel went on to refer to relevant considerations set out by the learned author of Uniform Evidence Law (Thomson Reuters, 13th edition, 2018) at 1219 (the same considerations are set out in the 14th edition commencing at 1215) and made submissions in respect of many of these considerations supporting the principal submission that the discretion would not be exercised in favour of excluding the wife’s evidence.
Those considerations said by the learned author, Stephen Odgers, to be relevant include:
·The issues to which the evidence relates;
·The probative value of the (un-cross examined) evidence;
·The importance of the evidence (bearing in mind the existence or non-existence of other evidence on the issues to which the evidence relates;
·The possible significance of cross-examination;
·The basis on which the hearsay rule did not apply to the evidence;
·Whether or not the person who made the statement “is available to testify” or not show to be unavailable;
·Any other dangers of unfair prejudice which may be exacerbated by the lack of opportunity to cross-examine;
·Whether the conduct of the party adducing the evidence has reduced the capacity of the objecting party to test and challenge the hearsay evidence;
·Whether or not any procedural disadvantages may be ameliorated or removed by some other action than evidentiary exclusion (for example, by an adjournment of the proceedings or by warnings to a jury);
·Whether the opponent also relies upon un-cross-examined evidence from the same source, so that neither party “will suffer any prejudice in that respect that is not also suffered by the other;
·The ability of the tribunal of fact to take into account the absence of cross-examination (and whether applicable, the inability to observe the making of the representation) when determining the weight to be given to the evidence.
Senior Counsel submitted that the disputed evidence of the wife relates to two major issues in the s 79 proceedings, namely the Kennon claim of the wife and the s 75(2) of the Family Law Act 1975 (Cth) (“s 75(2)”) adjustment issue and he submitted that it is ‘pivotal’ or crucial to the determination of those aspects of the wife’s case. He submitted that the husband will be able to adduce evidence in response as he was present on the occasions referred to by the wife and is able to respond, or, if he denies his presence, is able to depose to that and adduce alibi evidence. He submits the wife is able to be cross-examined on the evidence. He went on to submit that as the evidence is important to central issues, agitation of it will not result in an undue waste of time. He submitted that the discretion provided for in s 135 of the Evidence Act should not be exercised in favour of excluding the evidence.
The Husband’s Response in respect of the Expert Opinion Point
Queen’s Counsel for the husband submitted, albeit briefly, that the evidence objected to is not made admissible by reference to s 75(2) considerations. He submitted that it is the wife’s “diagnosis or treatment needs” which are relevant if her state of health is in issue, not “the cause of same”.
My Determination
Turning firstly to the Kennon point, I am initially very mindful of the observation of Fogarty and Lindenmayer JJ in Kennon that it will only be in “a relatively narrow band of cases” that a judge will be entitled to take conduct into account in assessing the parties’ respective contributions within s 79 and that where the common sense of the lawyers involved is not sufficient to regulate the particular matters in which such evidence is admissible it is a matter “for a firm hand by the Court at an early stage when a case appears to raise those issues”.[4]
[4]Kennon (n 2) at 84,294.
Having acknowledged that, I have to say that I have been in many cases over thirty-two years as a family lawyer, nine and a half of those now as a Judge of this Court, in which allegations of physical, verbal, emotional and sexual abuse have been raised by one party against the other. In many of those cases, evidence of abuse has been excluded from the outset where it has not been considered to meet the necessary evidentiary threshold that could bring the principles in Kennon into play. However, very few of those many cases would come anywhere near this case, as the facts are alleged by the wife in her affidavit of evidence-in-chief, in terms of the seriousness of the abuse alleged by the wife to have been perpetrated by the husband against her during the course of their marriage relationship, not just as isolated incidents but rather as a pattern of behaviour throughout. I have little hesitation in deciding that the facts alleged by the wife in this case justify the description “exceptional” or that they can be seen as bringing the case within a “relatively narrow band of cases” considered against the large number of cases that present to the family law courts.
The critical point, I consider, is whether or not, as Queen’s Counsel for the husband submits, the conduct the wife alleges is to be found to have had a significant adverse impact upon her contributions to the marriage or to have made her contributions significantly more arduous than they ought to have been. In considering this, I am conscious of what was said by the Full Court in S & S, but also what the majority judges in Keating said about that. I am also very conscious of what was said by all three judges of the Full Court in Britt. It is not insignificant, in my judgment, that those last two decisions are relatively recent decisions of the Full Court, to be seen in the light of the increased attention and awareness emerging around the subject of family violence, its prevalence and its seriousness within the wider community in this country.
Although some more particular evidence about the greater arduousness of the wife’s contributions consequent upon the abuse she alleges she suffered may have been given in her affidavit of evidence-in-chief, I accept that which the Full Court said in Britt where at 537, [43] their Honours said:
The difficulty in undertaking this consideration [of admissibility] 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.
By no means am I suggesting by the first part of the previous paragraph that the wife’s evidence discloses no direct nexus, either expressly or inferentially, between the alleged abuse and a greater arduousness of her contributions to the marriage. There is much within her evidence from which the reader understands that she is alleging that the abuse she experienced made the nature, quality and characteristics of her contributions to the marriage more arduous, even if she does not expressly depose to words such as “as a consequence of the abuse I received at the hands of the husband, my contributions to the wellbeing of our relationship were made more arduous.” Any observation that the judgment in Kennon requires such direct evidentiary expressions of nexus is in my respectful view an incorrect representation of what their Honours in Kennon said was required.
The Dictionary to the Evidence Act defines “probative value” as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” In the context of the Kennon claim, in issue is not only whether or not the alleged abuse happened at all, but also, even more significantly, whether or not the evidence in the case as a whole demonstrates that the abuse, if it is found to have happened as alleged, had a significant impact upon the wife’s contributions to the marriage such that that abuse could be found to have made her contributions significantly more arduous than they ought otherwise to have been.
The evidence of the allegations of the wife, if accepted, could very well rationally affect the assessment of the probability of the existence of those facts in issue. I am not prepared to say at this point in these proceedings that a ‘nexus’ is not able to be established and will not be able to be established at the trial between the abuse alleged and an assessment of the nature of the wife’s contributions to the marriage such that might justify a Judge taking that abuse into account in assessing the parties’ contributions within s 79 in accordance with the Kennon principles.
Furthermore, having considered the evidence which is objected to and the submissions about its relevance to s 75(2) considerations, particularly having regard to the expectation of a report being made available to the Court by a single expert psychiatrist reporting on the wife’s state of mental health, in my judgment there is merit in the submissions of Senior Counsel for the wife and the applicability of that which was said in Makita, Dasreef, Quick v Stoland, Sydneywide Distributors v Red Bull Australia and ASIC v Rich to the determination of the relevance of the evidence independent of the wife’s Kennon claim. I accept that there could be serious doubts about the admissibility of opinion evidence of a psychiatrist based on acceptance of factual matters that are in dispute where evidence going to the determination of those factual matters has been adduced but excluded before the trial. Evidence going to establish those disputed factual matters must be relevant in such circumstances and, therefore, admissible.
As for the further or alternative point relying on the discretion given to the Court by s 135 of the Evidence Act, again I accept the merit in the submissions of Senior Counsel for the wife that the discretion should not be used in the immediate circumstances to exclude the wife’s evidence because it cannot be said, in the absence of other evidence, that its probative value is “substantially outweighed” by a “danger” that it might cause or result in undue waste of time or that it might be unfairly prejudicial to the husband. I accept the evidence is probative in respect of crucial matters in issue in this property adjustment proceeding. The husband will be able to adduce his own evidence in response in a careful and considered way after being able to take advice. He will be able to have counsel cross-examine the wife on her evidence. I am not satisfied that he will suffer any unfair prejudice and I do not accept that allowing it in, allowing the husband to respond to it if he is so inclined, and permitting cross-examination on it will cause “undue waste of time”.
The objection to the bulk of the evidence that I have described as evidence of alleged abuse is overruled and it will be allowed in.
The Medical Evidence
As was discussed with Senior Counsel for the wife during the hearing, the usual way to adduce medical evidence such as that which the wife has adduced in her affidavit of evidence-in-chief is to file affidavits of medical practitioners deposing to the facts of diagnosis of a party, subsequent treatment of the party and to opinions of prognosis, either in the body of an affidavit itself or in a report attached to the affidavit, along with any relevant medical records of the practitioners.
Accepting that, Senior Counsel for the wife submitted that alternatively the evidence could be admitted in its current form, conditioned on the medical practitioner being made available at the trial for cross-examination.
Respectfully, I am not inclined to adopt that alternative approach submitted by Senior Counsel. In this particular case, if the evidence of medical practitioners is to be relied upon in the wife’s case, then the husband and his legal representatives should be put in a position of knowing exactly what the evidence of each such medical practitioner is before being put to the task of determining whether they accept it or will cross-examine on it.
I will strike out the evidence of the wife from the affidavit that is on the Court file that references these medical practitioners and the treatment and opinions attributable to each of them. If the wife is to rely upon any such evidence, she has leave to file any further affidavits of such medical practitioners within a further six weeks of the date of the Orders in this matter.
The Joint Letter of Instruction to the Single Expert Accountant
Since 2016, Mr B of C Firm, chartered accountants, has been retained by the parties as the single accounting expert to provide his valuation opinion evidence in the matter. Late that year, Mr B was jointly instructed by the parties to value the husband’s “interest within the E business group of entities” and was provided with a list of the entities the husband instructed that included.
When this matter was listed for trial late last year, Mr B was instructed to update his valuation report. Subsequent to that request, Mr B wrote a lengthy letter dated 27 September 2019 to the parties’ solicitors in which he set out information he had obtained about a number of matters pertaining to entities that he considered to be part of the “E group” and informed the parties that there had been “a material change in the E business” since his last valuation report. He informed the parties’ solicitors that he did not consider himself in a position to proceed until he received joint instructions as to the particular entities which formed part of the E consultancy business and as to which additional entities, if any, ought to be included in the valuation. He concluded by asking the parties’ solicitors to specifically provide joint instructions as to the particular entities that should be included in his “assessment”.
Particularly, in that letter, Mr B wrote that he understood from publicly available information that F Pty Ltd as trustee for the Eaton Investment Trust (“EIT”) owns 16.08% of the ordinary shares in a company named G Pty Ltd. G Pty Ltd, in turn, wholly owns a number of other companies, including H Limited. H Limited, in turn, wholly owns a number of other companies and has a 96.8% interest in another company, J Pty Ltd. Mr B said that he understood J Pty Ltd to own shares in another company, K Limited and units in the L Trust, both shares and units being said to be worth just under $6.3 million. He also said that his review indicated that L Trust “would appear to be generating material profits”.
Whilst Mr B also said that he had been told that L Trust was not an Eaton Group entity, it appears that Mr B was greatly influenced by his understanding that EIT had indirect interests in a number of companies, through its minority interest in G Pty Ltd, as well as L Trust. Mr B noted that EIT is an entity the husband discloses he has an interest in and should be valued.
The parties have not been able to agree on the terms of the joint letter of instruction, save for agreement as to the valuation date of 30 June 2019. Each has provided a draft of the proposed letter and submits to the Court that their draft should be the one sent to Mr B.
Queen’s Counsel referred to the husband’s affidavit of evidence filed 17 February, 2020. Significantly, in that affidavit, the husband, acknowledging he has an interest in EIT, deposed to the fact that EIT sold its minority interest in G Pty Ltd in July 2017 and that neither he personally, nor any company or trust “related to associated (sic) with [him] holds any interest, direct or indirect in” three of the entities that Mr B had referred to. At a different place in the same affidavit, the husband had said that Mr B’s letter referred to “a number of entities that were not the subject of joint instructions in the 2016 letter” and, further, that “neither those other entities nor my adult daughter [who the husband concedes has an interest in some of them]…. are parties to these proceedings” and “neither I, nor entities in which I or any related party has an interest, own or control those other entities”.
In short, the husband’s draft of the proposed letter lists, it was submitted, the entities in which the husband discloses he has an interest. Queen’s Counsel submitted “there is no warrant to depart from the terms of that draft to include entities which do not form “property” amenable to alteration pursuant to sec 79”.
The wife included in her draft of the proposed letter these other entities that Mr B referred to in his letter. However, Senior Counsel who appeared for the wife did not make any submissions in his written outline of submissions going to the issue. During the hearing, Senior Counsel told the Court that the wife had made an open proposal to the husband’s legal representatives to simply delay instructing Mr B for a period during which the husband could provide documentation to the wife’s legal representatives and Mr B that proved or verified his assertions that he had disposed of his relevant direct and indirect interests. Senior Counsel appropriately informed the Court that the husband’s legal representatives had rejected that proposed course.
Appropriately, in my view, Senior Counsel for the wife conceded that the Court could simply approve the draft of the letter proposed by the husband and that the wife could take such steps as she considered in her interests following receipt of advice from her legal representatives as to how to deal with any residual concerns about asserted disposal of property interests or “actual” control of business entities, given that this matter is not yet listed for trial.
Consequently, I am satisfied at this point in time that Mr B should be instructed to value those entities in which the husband discloses an interest and that the joint letter of instructions should go to Mr B in the form in which it is drafted in paragraph 10 of the husband’s affidavit filed herein on 17 February 2020.
I make the orders set out at the commencement of these written reasons.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 June 2020.
Associate:
Date: 4 June 2020
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