EATON & EATON

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.