EATON & EATON - [2020] FamCA 446

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
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Keating and Keating (2019) 59 Fam LR 158
Kennon & Kennon (1997) FLC 92-757
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
S & S [2003] FamCA 905
Washer v Western Australia (2007) 234 CLR 492

Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 13^th 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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: EATON & EATON [2020] FamCA 446
Case: [2020] FamCA 446
Decision Date: 4 June 2020

CaseChat Overview and Summary

In the matter of *Eaton & Eaton*, Forrest J of the Family Court of Australia considered an application by the husband to strike out paragraphs of the wife’s affidavit. The wife sought a 'Kennon' adjustment in her property adjustment application, relying on allegations of serious physical, sexual, and emotional abuse by the husband throughout their relationship and since separation. The husband contended that the wife had failed to demonstrate a nexus between the alleged conduct and her contributions to the marriage, and alternatively, that her evidence lacked sufficient probative relevance to impact the proceedings.

The primary legal issue before the court was whether the wife's affidavit evidence, detailing allegations of abuse, should be excluded under section 135 of the *Evidence Act 1995* (Cth) on the grounds of unfair prejudice or lack of probative value. A secondary issue concerned the wording of a joint letter of instruction to a single accounting expert regarding the valuation of the husband's business interests.

Forrest J reasoned that the wife's case fell within the exceptional category identified in *Kennon*, and that her evidence was probative of crucial matters in issue. The court considered the factors relevant to the exercise of discretion under section 135 of the *Evidence Act*, including the issues to which the evidence relates, its probative value, its importance, and the potential for cross-examination. The court found that the disputed evidence was pivotal to the wife's 'Kennon' claim and section 75(2) adjustment arguments, and that the husband would be able to adduce evidence in response. Consequently, the objections raised by the husband were overruled and dismissed.

The court ordered that certain parts of the wife's affidavit, marked in red and blue, be excluded by agreement of the parties. However, the remaining objections to the wife's affidavit were overruled. The court also ordered that the joint letter of instruction to the accounting expert be in the form proposed by the husband.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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