Farina & Lofts & Ors

[2019] FamCA 27

FAMILY COURT OF AUSTRALIA

FARINA & LOFTS AND ORS [2019] FamCA 27

FAMILY LAW – PROPERTY – ‘Kennon’ claim – interim ruling

Family Law Act 1975 (Cth)

Baranski & Baranski & Anor [2012] FamCAFC 18
Gillard & Gillard & Anor [2016] FamCA 841
Ismail & Elfar [2011] FamCA 716
Kennon & Kennon (1997) FLC 92-957 at 84,294
Spagnardi & Spagnardi [2003] FamCA 905
Whelan & Whelan[2010] FamCA 530

APPLICANT: Mr Farina

1st RESPONDENT: Ms Lofts

2nd RESPONDENT: C Pty Ltd

3rd RESPONDENT: D Pty Ltd

4th RESPONDENT: Mr Wagner

5th RESPONDENT: V Pty Ltd

FILE NUMBER: BRC 10102 of 2012

DATE OF RULING: 23 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

RULING OF: Carew J

DATE OF REASONS: 30 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Pyle of Counsel with Mr Clarry of Counsel (in the commercial case) and Mr Shoebridge of Counsel (in the family law case)
SOLICITOR FOR THE APPLICANT:	Dowd & Company

FOR THE 1ST RESPONDENT: Ms Hawkshaw (direct access brief)

COUNSEL FOR THE 2ND RESPONDENT: Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 2ND RESPONDENT: Bluewater Lawyers

COUNSEL FOR THE 3RD RESPONDENT: Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 3RD RESPONDENT: Bluewater Lawyers

COUNSEL FOR THE 4TH RESPONDENT: Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 4TH RESPONDENT: Bluewater Lawyers

COUNSEL FOR THE 5TH RESPONDENT: Mr Pyle of Counsel with Mr Clarry of Counsel

SOLICITOR FOR THE 5TH RESPONDENT: Dowd & Company

Ruling

1. The evidence relied upon by the first respondent is insufficient to establish that an adjustment should be made on the ‘Kennon’ principles.

NOTATION

The reference to the ‘Kennon’ principles is a reference to the decision of the Full Court of the Family Court of Australia: Kennon & Kennon (1997) FLC 92-957 at 84,294 in so far as it relates to family violence and property settlement.

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 Farina & Lofts and Ors 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 10102 of 2012

Mr Farina

Applicant

And

Ms Lofts

First Respondent

And

C Pty Ltd

Second Respondent

And

D Pty Ltd

Third Respondent

And

Mr Wagner

Fourth Respondent

And

V Pty Ltd 

Fifth Respondent

REASONS FOR RULING

1. The applicant sought a ruling on whether or not evidence of family violence relied upon by the first respondent, taken at its highest, could be sufficient to meet the requirements of the ‘Kennon’ principles and result in an additional adjustment to the first respondent. The applicant submitted it could not.

2. The ruling was sought at a preliminary point in the proceedings[1] and did not involve the second, third, fourth or fifth respondents.

   [1]Spagnardi & Spagnardi [2003] FamCA 905 [37].

3. A ruling was made that the evidence falls short of what is required and these are my reasons.

4. There was no disagreement between the applicant and first respondent as to the applicable legal principles, rather, an issue arose as to whether the evidence relied upon by the first respondent was sufficient to trigger the application of those principles.

5. The reference to the ‘Kennon’ principles is a short hand reference to the principles identified by the Full Court in the 1997 case of Kennon & Kennon[2] namely:

   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. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion.

   [emphasis added]

   [2] (1997) FLC 92-757 at 84,294.

6. While it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings,[3] the difficulty often faced by a trial judge is the inadequacy of evidence[4] to support any relevant finding and adjustment. However, even if there is no express evidence of how the conduct impacted on the victim’s ability to make his or her contributions the impact may be inferred if the evidence clearly supports it.[5] Although the Full Court in Kennon referred to the types of cases to which the principles apply as being ‘exceptional’, that should not be understood to mean ‘rare’, but rather the conduct that may be relevant is that which has had a ‘significant adverse impact’ or a ‘discernible impact’.[6] The Kennon principles are not directed at conduct that does not have that effect.[7]

   [3]Spagnardi supra [40].

   [4] Ibid.

   [5] Ibid [42].

   [6] Ibid [46].

   [7]Kennon supra at 84,295.

7. The application of the Kennon principles requires evidence directed to the following matters:[8]

   a)A course of conduct falling within the definition of family violence in s4 of the Family Law Act 1975 (Cth);

   b)The impact of the family violence on the victim’s capacity to make contributions; and

   c)How that impact can be quantified.

   [8]Spagnardi supra [47].

Background

1. The applicant and first respondent cohabited in a de facto relationship from 1998 until 2012. They have two children, N aged 12 and M aged eight.

2. The applicant and first respondent are both 42.

3. The applicant and first respondent agreed that their respective contributions during the relationship (apart from the Kennon argument) should be regarded as equal.

Allegations of family violence

1. Under a heading ‘Domestic Violence’ the first respondent sets out, in 160 paragraphs in her affidavit, allegations against the applicant of conduct falling within the definition of family violence, both during and subsequent to the relationship between her and the applicant.

2. While the applicant generally denies the allegations of family violence made against him, the evidence, for the purposes of this application, was conceded to fall into the category of a ‘course of conduct’ and also for the purpose of the application it was conceded that conduct after the end of the relationship may be relevant to the assessment of contributions.

3. The first respondent’s evidence sets out:

   a)The history of protection orders made against the applicant in favour of the first respondent commencing in 2008, there being a current protection order in place for five years from 23 May 2017;

   b)Without repeating the evidence in her domestic violence applications the first respondent makes general reference to:

   i)Allegations of physical abuse throughout the relationship including the applicant hitting her and causing a black eye, dragging her by her hair, reversing a car into her causing her to fall, grabbing her around the throat, bruising her arms and legs;

   ii)Allegations of destruction of property throughout the relationship including the applicant smashing the first respondent’s iPhone, throwing her personal belongings, cutting up her credit cards, punching a hole in a wall;

   iii)Allegations of verbal abuse throughout the relationship including the applicant telling the first respondent she was “fucking stupid, a fucking idiot, fucking hopeless”;

   iv)Allegations of psychological abuse throughout the relationship including the applicant threatening to harm the first respondent;

   v)Allegations of financial abuse throughout the relationship including the applicant telling the first respondent that everything was his, hiding money, threatening to waste money, cutting up the first respondent’s credit cards;

   vi)Allegations of animal cruelty during the relationship including the applicant killing newborn kittens;

   vii)Allegations of exposing the children to family violence including the applicant threatening to kill the first respondent, and ‘engineering’ the children to be present when police attended; and

   viii)Allegations of emotional and mental abuse including the applicant making comments about the first respondent’s weight, giving her a ‘difficult time’ about her employment.

4. The first respondent provides particulars for a number of incidents including:

   c)An incident of physical abuse resulting in an black eye on or about 3 January 1998;

   d)An incident of physical abuse involving being pulled by her hair early in the relationship;

   e)An incident involving the applicant reversing his car and causing the first respondent to fall back onto an electric fence on 24 November 1997;

   f)An incident of physical abuse involving the applicant threatening the first respondent with a pair of scissors and pushing her to the ground and smashing her head into the floor and kicking her on or about 16 August 2008;

   g)An incident of verbal abuse in front of the children on 21 October 2010;

   h)An incident of verbal abuse on or about 29 August 2001[9] (sic);

   i)An incident of verbal abuse on 21 September 2011;

   j)An incident on 10 December 2011 involving the applicant smashing the first respondent’s iPhone and of verbal abuse in the presence of the children;

   k)An incident on or about 13 December 2011 involving the applicant threatening to run over the first respondent if she did not move;

   l)An incident on a weekend in 2012 involving the applicant threatening to pour fuel on the first respondent and set it alight; and

   m)An incident in April 2012 involving the applicant picking up a knife and waving the knife towards the first respondent.

   [9] It seems apparent that this should be a reference to 2011.

5. It was conceded by the applicant that the alleged course of violent conduct had some impact on the first respondent e.g. where the first respondent deposes to feeling fearful or anxious because of the conduct and it was also conceded that the conduct had some impact on her capacity to provide contributions e.g. on an occasion the first respondent deposes to being unable to go to her place of employment. However, the applicant submitted that the evidence failed to ‘demonstrate’ a ‘discernible’ or ‘significant’ adverse impact upon the first respondent’s contributions.

6. Further, the applicant sought to distinguish a number of cases relied upon by the first respondent where a Kennon argument succeeded. It was argued by the applicant that in Baranski & Baranski & Anor[10] the perpetrator’s conduct resulted in the couple’s children not spending time with the perpetrator causing an obvious increase in the parenting contributions made by the victim such that it could be inferred. In Gillard & Gillard & Anor[11] there was evidence from a psychologist establishing the impact on the victim. In Ismail & Elfar[12] there was evidence of the victim suffering nightmares and experiencing difficulty coping such that she had not been able to carry out all the things she would have liked to have done because of violence. In Whelan & Whelan[13] there was evidence the wife could not work for a period and that she had suffered depression. The trial judge also referred to the direct evidence of the ‘practical’ impact of the perpetrator’s conduct on the victim.

   [10] [2012] FamCAFC 18.

   [11] [2016] FamCA 841.

   [12] [2011] FamCA 716.

   [13] [2010] FamCA 530.

7. The applicant submitted that the first respondent’s conclusions about the impact were insufficient. The first respondent deposed to the following:

   176. In relation to financial contributions both direct and indirect financial contributions, I say that [Mr Farina] made it harder than it needed to be for me to contribute financially because of the domestic violence [Mr Farina] subjected me to over the years whereby I had to suffer his domestic violence behaviours and still had to then go to work including with a black eye in the military that [Mr Farina] had given me.

   177. In relation to non-financial contributions for the welfare of the family, I was the primary care giver of the children in very difficult circumstances whereby [Mr Farina] made it harder that it need (sic) to be for me to contribute as a Mother.

8. The applicant submitted that, to the extent to which the first respondent deposed to feeling anxious or nervous or humiliated on occasion, this represented a personal impact on the first respondent, but fell short of establishing that those feelings had a discernible or significant impact on her capacity to make contributions.

9. The evidence that the applicant’s conduct caused the first respondent to resign from undertaking cooking responsibilities and to undertake fewer weekends or evenings in pursuing her self-employment also fell short of establishing what is required given the limited particulars provided.

10. The first respondent submitted that the impact of the applicant’s conduct upon her contributions could be inferred.

Conclusion

1. While I have no doubt that the conduct about which complaint is made would have had a personal impact on the first respondent, the law does not make conduct per se relevant.

2. With the passing of the Family Law Act in 1975 the need to establish ‘fault’ i.e. conduct worthy of opprobrium, in order to obtain a divorce or other relief was replaced with a ‘no-fault’ system. This was seen as a significant advancement on what had been the necessity to establish, often by the use of private investigators, that a party had engaged in conduct that warranted the other party being granted a divorce or other relief such as a property settlement or spouse maintenance. The repeal of the ‘fault’ based system relieved separating couples from the humiliation and expense of presenting the necessary evidence. The no-fault system applies equally to couples who are not married.

3. Notwithstanding the ‘no-fault’ system, the Kennon principles establish that there remain circumstances where conduct such as violence will be relevant to the determination of a property settlement application. It comes down to a consideration of the evidence relied upon in a particular case and a determination as to whether or not the specific requirements of the Kennon principles are met.  

4. In the current case, I accept the submissions made on behalf of the applicant. The evidence relied upon by the first respondent was insufficient to establish either the impact of the conduct on the first respondent’s capacity to make contributions or the quantification of that impact on her contributions whether by way of direct evidence or inference.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons of the Honourable Justice Carew delivered on 30 January 2019.

Associate: 

Date: