Kennon & Kennon
[1997] FamCA 27
•10 June 1997
Re : Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal [1997] FamCA 27; (1997) FLC 92-757 (1997) 22 Fam Lr 1 (10 June 1997)
FAMILY COURT OF AUSTRALIA
IN THE MATTER OF:
CASSANDRA KATHLEEN KENNON
(Appellant/Wife)
AND
IAN WILLIAM KENNON
(Cross-Appellant/Husband)
Appeal No. EA 42 of 1996
No. PA 5744 of
1994
Number of pages - 76
Property settlement
(1997) FLC
92-757
[1997] FamCA 27; (1997) 22 Fam LR 1
COURT
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
FOGARTY, BAKER AND LINDENMAYER JJ
CATCHWORDS
Property settlement - Short marriage - Wealthy party - Contributions - Section 75(2) factors - Reasonable exercise of discretion.
Property settlement - Domestic violence - Relevance of.
Assault - Domestic violence - Proof of individual assaults - Assessment of damages.
HEARING
SYDNEY, 3-4 February 1997 (hearing), 10 June 1997 (decision)
10:6:1997
Mr Broun, QC, instructed by Rodda Bailey Vagg, Solicitors, appeared for the appellant wife.
Mr Rose, QC, instructed by Adrian Twigg & Co., Solicitors, appeared for the cross-appellant husband.
ORDER
PROPOSED ORDERS:
1. That the appeal be dismissed.
2. That the cross appeal be dismissed.
3. That the appellant wife file and serve any written submissions which she seeks to make in relation to the appeal from the order of 19 April 1996 in relation to the costs of the trial, and in relation to the costs of the appeal and the cross appeal within twenty one (21) days.
4. That the cross appellant husband file and serve any submissions on which he seeks to rely in relation to the costs of the trial and in relation to the costs of the appeal and the cross appeal within a further twenty one (21) days thereafter.
5. That each party endorse on the cover sheet of any submissions filed pursuant to Orders 4 and 5, the date upon which those submissions were served upon the other party.
DECISION
FOGARTY AND LINDENMAYER JJ
BASIC BACKGROUND AND LITIGATION HISTORY
The husband is aged 54. He was at all relevant times and still is an advertising executive in a company controlled by him and is a person of substantial means. At the time of the trial he had net property of approximately $8.7m and income of approximately $1m. per annum. At the time cohabitation commenced (April 1989) his property and income were of a similar dimension. He had been married and divorced on three previous occasions. He has four children of those marriages all of whom live in their respective mother's care. During the cohabitation of these parties the husband had access to all of the children, the extent diminishing over time with the two elder children but continuing throughout cohabitation with the two younger children.
The wife is aged 36. She had not previously married and has no children. At the time the parties commenced cohabitation she was employed by a television station at an income of approximately $45,000 per annum. She had property to the value of approximately $49,000, constituted by equity in a unit, a motor car, savings and personal effects. At the time of the trial she had property of approximately $54,500 consisting of a motor car, jewellery, a debt owed by her parents and a bank account. His Honour added to that $40,000, representing the sum she had paid towards her legal costs, making a total of $94,500. At trial she was again employed by a television station, earning approximately $36,000 per annum.
The parties commenced cohabitation in April 1989. The husband was then aged 46 and the wife 30. The husband's third marriage was dissolved in July 1991 and the parties to these proceedings married in September 1991. They separated for two brief periods in 1991 and 1993. They finally separated on 1 March, 1994. Thus they cohabited for a period of about five years. There are no children of the marriage. The parties were divorced on 8 May, 1995.
The wife filed a property application in September 1994 and the husband filed an answer and cross-application in November 1994. In October 1995 the wife filed an amended application which included a claim under the cross-vesting legislation "that the husband pay to the wife, as damages for assault and battery the sum of $50,000 including exemplary damages". Shortly afterwards the husband filed an amended answer and cross-application in which he denied the allegations of assault and reiterated his position in relation to the property claim.
The matter came on for hearing before Coleman J in March 1996 and occupied ten sitting days.
The evidence relating to both issues was given together but in his judgment his Honour dealt with the damages claim first and then the s.79 claim. It is convenient to adopt that course in this judgment. However, his Honour made findings on matters of fact and credit which affected both issues. As some of these findings were the subject of grounds of appeal of the wife, it is convenient to refer to them first.
ISSUES OF FACT AND CREDIT
His Honour said that he regarded the issue of credit as having greater significance in the common law claim than in the property claim and that there was little independent or corroborative evidence supporting either party. He indicated that largely he preferred the evidence of the husband to that of the wife. Nevertheless, he made findings of fact adverse to each party on a number of specific issues. Before us, Mr Broun, QC, for the wife, challenged his Honour's credit findings and some of his findings of fact adverse to the wife. He also challenged his Honour's rejection of the evidence of Dr Wu, psychiatrist called by the wife, and his partial rejection of the evidence of Dr Wilton, general practitioner of the wife. There were substantial reasons, which his Honour explained, justifying rejection of Dr Wu's evidence. The issue relating to Dr Wilton's evidence is more complex and is best dealt with later in context.
Well-settled authority has demonstrated repeatedly that a challenge on appeal to issues of fact and credit is no easy task. It is necessary to establish that the trial Judge's conclusions were not reasonably open to him or her. The authorities emphasise the advantage that the trial Judge has in seeing and hearing witnesses give evidence, an advantage which the Full Court usually cannot replicate by reading the transcript. This was particularly so in this case because of the nature of the evidence, the myriad factual conflicts between these parties, and the substantial time taken by each party to give evidence. Mr Rose, QC, who appeared for the husband, did not challenge any findings of fact or credit adverse to the husband and contended that the findings of fact and credit adverse to the wife were reasonably open to his Honour.
In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said:-
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (See Brunskill[1985] HCA 61; (1985), 59 ALJR 842; 62 ALR 53; Jones v. Hyde[1989] HCA 20; (1989), 63 ALJR 349; 85 ALR 23; Abalos v. Australian Postal Commission [1990] HCA 47; (1990), 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" (S.S. Hontestroom v. S.S. Sagaporack [1927] AC 37, at p.47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" Brunskill (1985), 59 ALJR, at p.844; 62 ALR, at p.57)."
See also Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 565.
In this case it is sufficient for us to say that in relation to the evidence of the parties and of Dr Wu, the wife's challenge to his Honour's findings of fact and credit falls short of these requirements. Consequently, those findings stand for the purposes of this appeal.
THE COMMON LAW DAMAGES CLAIMS
(a) Approach of trial Judge
His Honour, in this judgment and an earlier ruling on 12 March, 1996, stated that he would deal with the claims for damages in a manner which "...approximates as closely as one realistically can, the manner in which a common law court would do so." (Appeal Book vol.1 p.15). Thus, the onus was on the wife as the claimant to establish each of her claims on the balance of probabilities. His Honour ruled that he would deal with each alleged assault or battery separately and reach conclusions and assess the damages in relation to each of them. This accords with his Honour's discussion of these issues in Marsh [1993] FamCA 57; (1994) FLC 92-443. However, he went on to say (Appeal Books vol.1 pp.15-6):-
"Having regard to the medical evidence to which I will later refer, there is a difficulty in that, if one accepted the medical evidence (including medical evidence obtained on behalf of the (husband)), whilst it would be open to the Court to find that the assaults and/or batteries proven had caused and/or contributed to the matters established by the medical evidence, it would be quite artificial to seek to regard any particular episode as having caused wholly, or to any particular definable extent, the matters referred to in the medical evidence. In the absence of any better approach, it seems to me that the Court must adopt a commonsense, practical approach to this problem and endeavour to consider the medical evidence with respect to each proven cause of action, not cumulatively but in proportion to the severity or otherwise of the particular assault and/or battery, that is on the basis of causality and remoteness of damage.
To do otherwise would mean that, although the Court might accept that the health of the (wife) had been affected by the tortious conduct of the (husband), the assessment of damages would have no regard to that reality by reason of the inability to allocate to each particular assault and/or battery, responsibility for a percentage of the overall impact of a series of events on the health of the (wife), a result which would seem not only unjust but illogical. The determination of the component of damages referable to the impairment of the (wife's) health is potentially the single most difficult aspect of determining the issues which the Court is obliged to determine."
His Honour also referred (Appeal Book vol.1 p.20) to Clerk and Lindsell on Torts, 15th ed. at 207 that "...the general object of an award of damages is to compensate the plaintiff for the losses, pecuniary and non-pecuniary, sustained as a result of the defendant's tort..." His Honour added that:-
"...compensatory damages potentially involve recognition of loss of earnings or earning ability, expenses referable to injuries sustained, pain and suffering and on-going impairment of health."
His Honour noted that the wife did not claim any special damages (actual loss such as medical expenses or lost earnings) but sought aggravated and exemplary damages. His Honour discussed each of these concepts. The correctness of his summary was not challenged.
But Mr Broun did challenge his Honour's approach in isolating and considering the assaults individually and reaching conclusions on the balance of probabilities in relation to each of them. He submitted that it was open to the trial Judge to consider these issues in a more global way. On the other hand, Mr Rose, for the husband, argued that his Honour was required to connect the wife's claimed damages with individual assaults. He submitted that damages must be assessed on the basis that they are referable to and causally connected with each individual assault found to have been established and that his Honour was in error in some of his conclusions on this aspect.
His Honour's approach raises issues of general importance. The only way in which such a claim for damages can be litigated in this Court is to attach that claim, via the cross-vesting legislation, to a claim within the original jurisdiction of this Court, essentially a claim under the Family Law Act (a matter which we will discuss later). Usually assault cases involve a specific assault or assaults and usually on one occasion but sometimes over a confined period of time. But it is more likely in proceedings between parties who are or have been married to each other for a number of years that the allegations will be of a series of alleged assaults, some grave and others less serious, stretching over a period of time. This usually results in the difficulty of pinpointing, with sufficient particularity, each allegation of violence and then connecting any longer term consequences and resultant damage to the individual assaults.
Consequently, it may seem that in these cases the applicant should be entitled to rely upon an established history of domestic violence over a period of time even if he or she cannot some time afterwards particularise each individual event. In addition, it appears to be artificial, if not impossible in many cases, to require the applicant to prove that longer term physical and psychological damage or future economic loss, which may be the cumulative outcome of a series of individual events, is causally connected with an individual assault or assaults.
However, because these are common law claims, the established view has been that they must be conducted in this Court in the same way as they would be conducted in common law courts, and general but unparticularised allegations of assault do not fit within that framework. In addition, there is the basic problem of fairness to the respondent in that it may be difficult, even impossible, to meet general claims of that nature. It may also make the adjudication difficult for much the same reason. In practical terms this difficulty is to some extent lessened by statutes of limitation of the States and Territories which, although they may vary, restrict the period of time that can be covered by such claims. In this case the New South Wales legislation applied and it prescribes a limitation period of three years with power in State courts to extend that period in appropriate circumstances. It is important to note that by contrast no statutory limitation period applies to domestic violence if that can be a component of a s.79 claim.
Mr Broun submitted that the common law approach of considering individual assaults separately should be adapted to the circumstances of claims between husbands and wives. He emphasised that generally speaking until 1976 married parties were unable, subject to statutory exceptions, to bring an action in tort against each other so that this issue did not arise in a meaningful way when the common law principles were being formulated. The common law did not have to grapple with these problems as it would be unlikely that a claim for damages between persons who had no such intimate relationship would stretch over a period of time and involve a number of assaults.
Consequently, Mr Broun submitted that the Court should look at a series of assaults, even if they cannot all be precisely particularised, reach a conclusion in relation to them overall, and award one amount of damages. He argued that it is difficult, perhaps even impossible, to apportion damages to specific assaults in cases such as this where the effect of the assaults upon the victim may be cumulative. He submitted that his Honour's approach gives a respondent an unfair advantage because if the claimant is unable to isolate each of the individual assaults he or she will not be compensated adequately or at all. Mr Broun argued that it should be sufficient to give evidence of individual assaults and more general evidence of a similar course of conduct over a period of time (as the wife attempted to do here).
Mr Rose submitted in support of a ground of the cross-appeal, that although the trial Judge correctly required each alleged assault to be considered and proved separately, he erred in his method of assessing damages in relation to psychological harm. Mr Rose emphasised that this Court only adjudicates claims for damages for assault through the cross-vesting legislation and is required to apply the law in force in the State in which the Court is sitting, in this case New South Wales. He argued that, if approached in this way, the principles to be applied are that each alleged assault represents a separate cause of action and, if proved, gives rise to a separate remedy in damages. To recover damages there must be findings that loss was sustained as a result of the commission of the particular tort and that there was a causal connection between the particular tort and the loss in respect of which damages are claimed.
On this issue Mr Broun referred us to two cases which he submitted had relevance - Re Application For Criminal Injuries Compensation (1991) 103 FLR 297 and Dimas v Government Insurance Office (N.S.W.) (1992) 15 MVR 213. The first of these cases was a claim for compensation under Crimes Injuries Compensation Act 1983 (ACT) by a young woman for a series of sexual assaults by her father and brother over a two year period. One of the issues was the impossibility of determining the extent to which her psychological condition at the time of the hearing was the result of each separate assault. Master Hogan of the Supreme Court of the Australian Capital Territory awarded a single amount for the totality of the injuries suffered which he said was a "broad and commonsense approach".
A similar approach was adopted by Brown J in W and W; R and G (next friend P) [1994] FamCA 34; (1994) FLC 92-475 where a claim by two children against their step-father for damages for sexual and other assaults which occurred over a period of time was heard in this Court, having been cross-vested with property proceedings between her mother and the step-father. Liability was not in issue.
Mr Rose submitted that the decision of Master Hogan was of no value in this case. This was because the issue there was one of statutory interpretation, namely, whether under the Act it was competent for the tribunal to determine in a single application compensation for separate incidents and that the conclusion of Master Hogan was that a separate application for each injury was not required.
The second case referred to by Mr Broun concerned a claim for damages arising from two separate motor vehicle accidents in each of which the plaintiff was injured. Liability was admitted in each case and the actions were heard together. The trial Judge awarded a global sum to cover both injuries. On appeal by the plaintiff the New South Wales Court of Appeal appear to have regarded separate verdicts as the appropriate course but dismissed the appeal on the basis that, even if there had been separate verdicts, the plaintiff would not have recovered a greater sum.
It appears to us that, as the law presently stands, the trial Judge was correct in requiring each alleged assault to be separately identified and proved. His Honour recognised that this approach could be unfair to a claimant because domestic violence over a period of time may not be able to be particularised and proved in this way and this approach may substantially erode the cumulative effect of those assaults. But these are common law claims for damages for assault. They are not part of the ordinary jurisdiction of the Family Court. They are only heard by this Court as a consequence of the cross-vesting scheme and that scheme makes it clear that in exercising that jurisdiction the Family Court is to apply the law of the relevant State.
For our part, we must say that we do not regard this as satisfactory. We doubt the validity of parallels between motor vehicle accidents and other like events or even "stranger" assaults on the one hand and domestic violence and sexual assaults involving a series of events over a number of years on the other. But we doubt that it is open to this Court to make such a significant change in an area of the law which is not part of its usual jurisdiction. However, it is an area of the law which may call for reassessment and reform.
For those reasons, we agree with Coleman J in this case that it was not open to him to treat the claim as constituted, even partly, by a series of broadly identified assaults over a period of time. It is necessary in a common law claim for the applicant to identify the individual events and satisfy the Court on the balance of probabilities that each of them occurred. This does not, in our view, sit easily with the nature of domestic violence, and this Court's experience of it and its responsibilities in relation to it. However, this is a common law claim litigated in this Court only because of the cross-vesting scheme and therefore these limitations must for the time being be acknowledged.
However, in our view, his Honour was correct in his approach to the assessment of those damages which arise as a consequence of the cumulative effect of a number of assaults and in circumstances where it is not practical to relate that damage or particular portions of it in a realistic way to the individual assaults which are established. This is not an issue which the common law normally has to confront. It is open to this Court to participate in the evolution of the law and to do so in the way adopted by Coleman and Brown JJ. Their reasons are compelling; not to do so would lack commonsense and represent a denial of basic justice.
(b) Damages claims in the Family Court
In 1976 s.119 of the Family Law Act removed the remaining limitations upon the right of a spouse to bring an action in tort against the other spouse, including claims for assault arising from circumstances which would generally be described as domestic violence.
More recently claims for damages for assault have been litigated in this Court by using the cross-vesting scheme and attaching them to a property claim under s.79 of the Family Law Act (see, for example, Marsh, supra).
We should add that at the present time the validity of the cross-vesting scheme, or at least the validity of the vesting of State powers in federal courts, is under consideration by the High Court. The discussion hereunder is, therefore, subject to the outcome in that appeal.
Where the action for damages is litigated in a State court that outcome would ordinarily have only limited relevance to a subsequent s.79 proceeding in this Court between those parties. It may create an issue estoppel arising from the determination and the necessary components of that determination. It may also have an impact upon the property pool to be considered by this Court in s.79 proceedings. Components of the damages awarded by the State court may be important in considering aspects of the s.79 claim: for example, if damages included components for loss or diminution of future earning capacity or ongoing physical or psychological injury.
The developing practice of including a claim for damages in family law proceedings via the cross-vesting scheme can have some advantages and is now occurring more frequently. They involve only the one proceeding instead of two and may be less expensive and quicker overall. However, this practice also creates difficulties and produces results which overall may not be satisfactory. It involves the simultaneous or virtually simultaneous hearing of two claims with different dynamics and which serve different purposes. It does not necessarily follow that this Court will in all such cases consider it appropriate to adjudicate the cross-vested issue. It may consider that it is more appropriate to transfer the proceedings to a State court for determination.
In any event, before it can be heard in this Court it is necessary for there to be a proceeding within the original jurisdiction of this Court to which it is attached. Whilst in theory any claim under the Family Law Act may be sufficient, it seems to us likely that it could only be attached to a s.79 claim. It may be difficult to envisage a case where there would be a sufficiently relevant connection (aside from the identity of parties) between a common law action for damages and applications under the Family Law Act such as divorce, parenting orders, child support or even spousal maintenance. In those cases the relevant connection may be so tenuous that it would ordinarily be expected that the Family Court would decline to entertain it and would transfer it.
Even in relation to a s.79 claim, it does not follow that the Family Court is obliged to hear the cross-vested damages claim. Whilst in no way attempting to understate the impact of domestic violence and the importance of appropriate remedies, the fact is that in such a situation the s.79 claim should remain the major focus in this Court because it is the area in which this Court has direct jurisdiction and particular expertise.
Some procedural and evidentiary difficulties may arise where a damages claim and a s.79 claim, involving the same parties, proceed in this Court at the same time. An initial decision would need to be made as to whether the proceedings should be heard together or separately. If they are heard together, difficulties may arise in distinguishing what is relevant under each claim. In particular, the parties themselves may not be able to draw that distinction and the s.79 claim could be submerged by what appears to the parties to be fault based issues which may overrun the quite distinct issues relevant under s.79. If the respondent to the common law claim is the applicant in the property claim, that person may suffer procedural unfairness if he or she is required to proceed first and is cross-examined about the assault claims before a prima facie case on that issue has been established. The procedures could be adjusted to meet this problem but that in itself may carry with it other disadvantages.
It may be possible to have one hearing but isolate the two claims, hear the assault and damages evidence first and then the s.79 evidence, and have one composite adjudication. This may be appropriate if both parties agree but there will be likely to be an overlap of relevance and evidence.
If the two claims are adjudicated in separate hearings, there would be little basis for these two hearings to take place in the Family Court and the appropriate course would be to transfer the damages claim to the State court. In any event, a split hearing in this Court may have disadvantages. It would be likely to require separate judges because findings in the first proceeding on issues of fact and credit may lead one party to request that the s.79 claim be heard by another judge. There would be likely to be an overlap in relevance and evidence, and issues of estoppel may arise.
These concerns are illustrated in the as yet unreported judgment of Chisholm J in Rosati, 14 February, 1997. In that case, a property case with a cross-vested assault claim, his Honour heard detailed evidence from the parties about assaults and other similar conduct which purportedly occurred during the marriage. His conclusions were (p.20):-
"Looking at this matter overall, it is clear that there were numerous angry interchanges between the parties. During these interchanges each of them used foul and abusive language to the other. Both of them engaged in what I may call symbolic violence at times, the wife throwing things off the table onto the floor and the husband flinging the car keys at the wife's hands (I accept his evidence that he threw them at her hands not at her head). On perhaps two occasions the husband's violence went further than being merely verbal or symbolic in that he pushed the wife. However, I am not satisfied that he caused her any injury or that he punched her or grabbed her round the throat, or engaged in any other such acts.
[...]
Having made these findings, in my opinion in the circumstances of this case the matters of behaviour arising between the parties very nearly cancel each other out. I do not think there is satisfactory evidence that the violence played a significant part in relation to the wife's contributions. To the extent that they should be taken into account in favour of the wife, in my view their significance is minimal."
Those and other matters led his Honour to express the following views with which we agree (p.15):-
"... I express my own view that it would be unfortunate if practitioners saw Doherty [(1996) FLC 92-652] as an indication that they should routinely include in property proceedings detailed evidence about the parties' behaviour towards each other during the marriage.
There are three main reasons for this. First, in practice it will often be very difficult for the court to make an overall determination of whether overall one party is more wronged than the other. In many cases, a prolonged investigation of these matters would, in the end, prove fruitless, and would add immeasurably to the financial and emotional costs of the proceedings.
Second, these matters may sometimes be of marginal relevance. For example, if one party has assaulted and injured the other party, the injury and its consequences will be relevant, quite apart from conduct, if as a result the injured party has medical or other costs, or is in need of assistance, or is unable to obtain employment. Again, if the victim of the assault has a right of action for damages under the general law, in financial proceedings a court may perhaps find that "the justice of the case" does not require the matter to be dealt with in the family court proceedings, since the right of action will remain available after the completion of the family law proceedings. This is however a complex matter, as parties sometimes seek to have cross-vested actions for damages dealt with in the course of property proceedings. It is a difficult and important question whether it is desirable that these matters be best dealt with by actions for damages, and if so whether such claims should be transferred to the State Supreme Courts or dealt with in the course of the property proceedings. If they are, questions arise about the relationship between the damages award and the resolution of the property proceedings. If they are not to be dealt with in this way, a just and equitable result may, on the authority of Doherty's case, require them to be taken into account in the s 79 proceedings, although it might be arguable that this will only be just and equitable if the party accepts that the property proceedings will bring to an end his or her claim to damages arising out of the incidents.
Third, and most obviously, this sort of material will normally lead to extended trials of a particularly bitter kind, and will take a heavy toll on the parties in both financial and emotional terms. In some cases, this may be disproportionate to its impact on the end result.
It is clear that there will be some cases where, under Doherty, matters of family violence and perhaps other types of conduct may be properly taken into account. Good lawyers will assist their clients to weigh up the many consequences when considering what evidence to lead in these cases."
These observations are strikingly illustrated in this present case. It took ten days, much of which was occupied in a detailed examination of the numerous assaults which were alleged. The wife's affidavit was 100 pages and contained absurdly detailed accounts of these and other events, large and small. The husband's affidavit in response was 68 pages.
There is not, we think, any legitimate basis for concluding that the Family Court is uniquely suited to the adjudication of domestic violence damages claims. Its daily work brings it into contact in a variety of ways with domestic violence but the same may be said of the Magistrates' Courts and District Courts of the States which have the additional advantage of being more familiar with claims for damages. It is obviously inappropriate to attempt to compare the suitability of different courts to deal with domestic violence claims but we think it is legitimate to make the point that the Family Court cannot be said to be so uniquely attuned to the adjudication of these cases that that is a basis for preferring this Court and for offsetting the circumstance that the State courts are the "natural" tribunals for the adjudication of common law claims.
It appears to us that in these cases a decision needs to be made at an early point whether this Court will entertain or transfer the common law claim. If the former occurs, there needs to be a clear understanding about the processes involved. In the interests of costs and time, this determination should be made at an early stage.
(c) The claims in this case
Having regard to the issues argued in this appeal, the relevant facts can be briefly summarised. The wife relied upon seven specific allegations of battery, that is, of the husband's actual violence to her, and upon specific and general allegations of assault, that is, occasions which created in her mind an apprehension of violence to her arising from the husband's conduct.
It is useful to set out how the claim for assault was pleaded (see Appeal Book vol.1 pp.180-1). It reads as follows:-
"PARTICULARS OF ASSAULTS During the course of the cohabitation there were many incidents when the Wife was placed in fear of her safety by the Husband's actions, such incidents becoming progressively more frequent as the marriage went on and particularly becoming more frequent from about the beginning of 1993. Such incidents were normally associated with the Husband having consumed and excessive amount of alcohol.
The Wife was left in fear by reason of the Husband being in a rage, frequently yelling with a very high volume voice words of abuse. He frequently went red in the face and shook with rage. He frequently clenched his fists and/or banged his clenched fists on to tables, chairs, walls or otherwise. On each occasion the Wife had to fear for her safety.
Some examples are as follows:"
(The application then set out in detail two particular incidents.)
His Honour in his ruling of 12 March, 1996 and again in his final judgment concluded that he would not consider these generalised allegations partly because of their vagueness and generality and partly because they did not allege and could not be construed to allege a reasonably apprehended threat of violence to the wife. However, he did consider the two specified assaults.
His Honour analysed in detail those two events and the seven alleged batteries and concluded in relation to two of the allegations of battery that the wife had established her case on the balance of probabilities. These events occurred in January 1992 and in July 1993 (this latter date involving three separate incidents). He found against the wife on the other allegations.
Mr Broun challenged his Honour's rejection of the other claims. There was no cross-appeal by the husband in relation to the batteries found to be established.
There was little corroborative evidence in relation to any of those incidents so that this was very much an issue of fact and credit for the trial Judge. He had the advantage in this difficult case of seeing both the parties in the witness box over a significant period of time, an advantage which this Court does not enjoy.
We have already referred to the principles which apply to this aspect of the appeal. This is not a re-trial of these issues but an examination of the record. The question is whether the findings of fact and credit were reasonably open to the trial Judge. It is sufficient for us to say that, in our view, there is no basis upon which this Court would be justified in interfering with his Honour's conclusions.
The damages awarded by his Honour were (Appeal Book vol.1 p.58-9) $8,000 by way of compensatory and aggravated damages for the January 1992 incident and $6,000, $21,000 and $8,000 for the three July 1993 incidents, each award being constituted by separate amounts for compensatory, aggravated and exemplary damages, a total of $43,000. The compensatory damages included damages for psychological damage referred to next.
(d) The Wife's Psychological Suffering and Damages
His Honour's award included damages for psychological suffering which he found was caused to the wife by the husband's assaults.
Mr Rose challenged this aspect of his Honour's judgment on the basis that no causal connection between the assaults and that condition had been established. We have already referred to that.
Mr Broun challenged his Honour's conclusion that he could not rely upon the evidence of Dr Wu, a psychiatrist whose evidence, if accepted, would have strongly supported the wife's case. We have referred to this previously. It appears to us that it was open to the trial Judge to reject that evidence for reasons largely relating to credit and which he explained in detail.
His Honour's partial rejection of the evidence of Dr Wilton is a more difficult issue. Dr Wilton was the wife's general practitioner from December 1987. He swore a detailed affidavit and was cross-examined. He stated that on 21 February, 1992 the wife presented with symptoms of recurrent chest pain and reflux oesophitis. Dr Wilton diagnosed her as "...suffering from an anxiety state." In February 1993, she "... presented with vague symptoms of lethargy, anorexia, light headedness and fainting episodes" and when questioned, "... she confirmed that she was "unhappy and stressed"." In March 1993, she presented with symptoms of "...general anxiety concerning particularly her tiredness." In August 1993 the wife was suffering from shingles which required treatment. Dr Wilton said that "stress is a well known precipitator of attacks of shingles". In September 1993 the wife suffered a skin condition requiring medication. Dr Wilton stated that "it was a skin condition which may well have had stress as a causative, exacerbating or contributing factor." He saw her again in November 1993 at which time the skin condition had worsened. The wife "complained of considerable stress. She was then temporarily separated from her husband and was very distressed by the events in her life."
Dr Wilton also stated that he observed a "...marked change in [the wife's] personality and nature over the period of her marriage." Before she married, the wife seemed "a happy, if somewhat anxious, patient", she was "quite talkative, had a wide range of friends and enjoyed active and responsible employment and appeared to live an extroverted, pleasant life." During her marriage, "she was much more guarded in talking about herself and life, became indecisive and very uncertain of her own capabilities, appeared quite withdrawn and seemed a much less happy person in herself".
Dr Wilton saw the wife four or five times after the final separation and observed that her "self-confidence is slowly returning", that she appeared "much more like her previous self", but still complained of "depression and anxiety".
The third doctor was Dr McMurdo. He saw the wife at the request of the husband's solicitors but was not cross-examined. His affidavit and report generally supported Dr Wilton's views. He stated that before the wife's marriage it appeared that she had "no particular emotional problems" but that as the marital relationship began to breakdown she became "quite distressed and depressed", a circumstance which she attributed to the husband's "brutal attacks" especially those which occurred in the presence of her step-children. Dr McMurdo diagnosed the wife as suffering from "an adjustment disorder with depression and anxiety". He stated that she had now "predominantly resolved" her "severe reactive depression" and was "quite fit for employment" but was still "obviously very vulnerable" and could "easily become seriously depressed in the future, particularly if she were to be intimidated".
His Honour, relying upon the evidence of Dr McMurdo, found that the wife's psychological damage was in part caused by the husband's assaults during their cohabitation (Appeal Book vol.1 p.55-6). However, he found that it was difficult to determine the extent to which that damage was caused by the assaults, the parties' separation, "demeaning" treatment by the husband not involving violence, and the wife's loss of contact with the husband's children (Appeal Books, vol.1, pp.55-7). His Honour referred to Mr Rose's submission that it is necessary in claims for damages to causally connect that damage with specific assaults, "or, put in another way, it must be demonstrated that the actions of the (husband) were responsible (wholly or in part) for the psychological condition found to exist".
His Honour described further problems associated with assessing damages for psychological suffering, namely, whether it is possible to conclude that the psychological damage is referable to specific assaults (as distinct from other factors) and to distinguish which of a number of proved assaults it is referable to. He stated (Appeal Book vol.1 pp.57-8):-
"On the other hand where, as here, that part of the damage sustained by the (wife) as a consequence of the tortious acts of the (husband) was not insignificant psychological damage for a period, to disregard that entirely by reason of the difficulties to which I refer does seem unjust. I am not persuaded that the (wife) must establish that any psychological damage sustained by her must be proved to be solely due to the (husband's) tortious acts provided that she can establish that any such damage is to some extent causally connected with and not too remote from such acts. Courts exercising common law jurisdiction have apparently not had to deal with multiple claims of assault and battery involving the same parties. Where that occurs, particularly where the parties are cohabiting, and where other factors, as Dr McMurdo suggests in this case, have contributed to the psychological trauma suffered by the (wife), the task which confronts the Court becomes extremely difficult. Ultimately the interests of justice dictate that compensatory damages, under which heading the applicant's psychological trauma falls, must be quantified. In all the circumstances, and without suggesting that the approach attains the clarity and precision for which the common law strives, to fail to reflect as a component of the (wife's) compensatory damages in respect of those claims which I find proved, any allowance for the psychological damage which I find the (wife) sustained would mean that the Court had shied away from doing justice."
His Honour applied this approach to the evidence which he accepted . In relation to the incident in January 1992, he awarded $5000 compensatory damages for both her physical and psychological suffering though "more of that sum being referable to the [wife's] not insignificant psychological suffering than physical suffering" (Appeal Books, vol.1, p.58).
For the first of the three incidents of July 1993, his Honour awarded $3,000 compensatory damages, the "bulk of which" was for the psychological suffering. He regarded the second assault as constituting "vindictive and reprehensible" conduct on the part of the husband causing "considerable" psychological suffering to the wife, awarding $6,000 compensatory damages. He considered that the third incident was "less vicious than the second attack and more severe than the first" because "having committed the previous serious assault, the [husband] should have left the [wife] alone and kept away from her rather than persisting with his violence towards her" (Appeal Books, vol.1, p.59), and awarded $5,000 compensatory damages.
The evidence of Dr Wilton and Dr McMurdo was generally similar on these issues. Consequently, it is at first sight difficult to see why the trial Judge largely rejected or discounted the evidence of the former but accept that of the latter. If the trial Judge had accepted the evidence of both of these professional witnesses, the problems to which he referred above would still remain but it may have enabled him to approach these issues in a more robust and confident way and it could have had an impact upon the assessment of damages referrable to the husband's assaults.
His Honour gave two reasons for rejecting Dr Wilton's evidence. The first appears to be based on his confusing two conditions for which Dr Wilton treated the wife. As mentioned, in August 1993 Dr Wilton treated the wife for shingles and in September 1993 he treated her for a skin condition. In relation to the latter condition, Dr Wilton referred the wife to Dr Cottee, a dermatologist. Dr Cottee, in her report to Dr Wilton in January 1994, referred to the condition as "late on-set acne" and stated possible causes of it could be "a separation or a divorce or the use of cleansers and toners as a precipitant" and that the wife had recently been using a new cleanser.
His Honour appears to have confused those events because he referred (Appeal Book vol.1 p.50) to Dr Cottee's report as if it related to the wife's shingles and was critical of Dr Wilton for not referring to Dr Cottee's opinion in his report as an alternative explanation for the development of shingles. Specifically his Honour said:-
"Whilst I do not suggest that Dr Wilton tailored his evidence to assist the (wife's) case, he cannot in my view avoid criticism for an oversight such as that in relation to Dr Cottee's advice. On the evidence I have heard, I cannot be satisfied on the balance of probabilities that the shingles outbreak suffered by the (wife), painful though that undoubtedly was, and occurring as it undoubtedly did as the (husband) himself conceded, was caused by any actions of the (husband) as opposed to a problem of the kind Dr Cottee referred to."
Thus the trial Judge put aside shingles as a relevant matter and seems to have at least partially rejected Dr Wilton's evidence on this credit issue.
On the other hand, it may have been open to his Honour to adopt a similar approach to Dr Wilton's evidence in relation to the acne. It is possible that the failure of Dr Wilton to draw attention to Dr Cottee's report in that context could have led his Honour to adopt a similar approach. But Dr Cottee's report raised this matter only as a possibility. However, even allowing for that and recognising that this aspect of his Honour's judgment was at least partly a credit issue, it does not seem to us to follow necessarily or at all that because Dr Wilton did not draw attention to Dr Cottee's suggestion, his Honour should have largely discounted the evidence of Dr Wilton, especially as its theme was very similar to that of Dr McMurdo.
However, his Honour gave a second reason for rejecting Dr Wilton's evidence and for concluding that it did not demonstrate the necessary causal connection between the wife's condition during the marriage as he observed it to be and the assaults by the husband. This appears in the following passage at Appeal Book vol.1 p.50:-
"Dr Wilton conceded that he was unable to indicate that any particular assault or battery had caused or specifically contributed to the change in personality of the (wife) to which he deposed in his affidavit. Dr Wilton further conceded that a marriage break-up was often accompanied by anxiety and depression and that a lack of confidence was not unusual, ultimately conceding that he could not say to what the (wife's) personality change was referable.
The evidence of Dr Wilton does not advance the applicant's claim for damages given the frank concessions of Dr Wilton that he could not suggest any causal link between the alleged assaults and/or batteries (in general, much less in relation to any particular episode) and the matters which he observed in relation to the health of the (wife). I am ultimately not persuaded on the balance of probabilities that Dr Wilton observed anything which was not reasonably incidental to the break-up of the marriage between the parties."
Dr McMurdo was not cross-examined. Consequently, the statements in his report suggesting a causal connection between the wife's condition and the assaults were not the subject of challenge. It would have been most unlikely that those acting for the wife would have chosen to cross-examine him on that issue and those acting for the husband were not really in a position to do so. That material being unchallenged, his Honour was, in the circumstances here, really obliged to accept it and he did so. Dr Wilton was cross-examined on this issue of causation and he made the concessions to which his Honour referred. But it would have been inevitable that a professional witness would have been obliged to concede the difficulty of connecting the wife's condition exclusively or in a definable way to one of a number of disturbing factors which were operating in her life at that time, including unhappiness in her marriage, separation, violence, and abuse by the husband.
Ultimately this was an issue for the trial Judge. He was obliged to weigh the evidence of both lay and professional witnesses and, in a difficult area where there is no clear and direct basis upon which to proceed, the trial Judge needs to take a commonsense approach. This is not a problem which is peculiar to this sort of case. It is an issue which commonly arises in actions for damages for personal injury and other like cases. Rather than rejecting Dr Wilton's evidence, as his Honour apparently did, it may have been safer for him to take into account evidence of Dr Wilton together with the qualifications which that witness made clear, add this to the unchallenged evidence of Dr McMurdo and the evidence of the wife and others, and reach an overall conclusion.
It follows from what we have said that we consider that his Honour was in error in aspects of his approach to Dr Wilton's evidence. The question, however, is what follows from this. It may have enabled him to approach this matter of causation more robustly and to reach a stronger conclusion in favour to the wife than he in fact did. This may have led him to award a greater amount of damages. Although Mr Broun submitted that his Honour should have awarded more by way of damages, the submissions were not specifically directed to this issue. It was put in a more general way and was coupled with the submission that the trial Judge was wrong in rejecting the other allegations of assault. As the total amount claimed by the wife was $50,000 and the amount awarded by the trial Judge was $43,000, the scope for interference by this Court is very limited. On balance we do not consider that it is appropriate for this Court to do so.
The husband cross-appealed, asserting that the order was excessive, outside a reasonable range and "arbitrary". We do not think that there is any substance in these arguments. His Honour had the usual advantages in a trial of this type. He explained the components of each award and his reasons in some detail. There is necessarily a degree of subjectivity in these matters. The award was within a legitimate range. His Honour made it clear that this award was to be disregarded in the s.79 claim, a view which was clearly correct. Otherwise, in many cases (although not in this case) the victim may contribute to the award.
RELEVANCE OF DOMESTIC VIOLENCE IN CLAIMS UNDER S.79
His Honour recorded one of the submissions of counsel for the wife as being (Appeal Books vol.1 p.48) that:-
"the "cumulative effect" of the (husband's) tortious conduct to the (wife) could and should result in a Section 75(2)(o) adjustment to the extent that the Court accepted the medical evidence adduced on behalf of the (wife) but did not, either by reason of liability being held not to be established or for reasons relating to causality or remoteness, reflect those matters in the civil damages proceedings, but that the Court should reflect the psychological damage sustained by the (wife) as a result of the (husband's) tortious acts as a substantial part of her damages award."
Thus his Honour recorded counsel's submissions so far as domestic violence and s.79 are concerned as being an adjustment within s.75(2), although secondary to the damages claim and reliant upon the Court's view of the medical evidence and the impact of the violence upon the wife.
His Honour's response to this appears in the immediately following paragraph at Appeal Book vol.1 pp.48-9:-
"Having regard to the decision of the High Court in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 it is conceivable that an applicant may, if the medical evidence is substantially accepted, receive an adjustment under Section 75(2)(o) by virtue of any impact upon the nature and quality of his or her contributions through having been the subject of violent abuse by a spouse. In the present case, the evidence does not establish, that the (wife) was, by virtue of any assaults and/or batteries which she suffered at the (husband's) hands, impeded in the making of contributions or prevented from making contributions or doing so under adversity or difficulty by virtue of those assaults and/or batteries. On the other hand, I am satisfied for reasons to which I will refer that the health of the (wife) was for a period during cohabitation and subsequent thereto impaired in circumstances which need to be considered within the context of Section 75(2) quite apart from any tortious or causal actions of the (husband) in that regard. There is necessarily a potentially significant difference so far as causality is concerned in suggesting that approach as it would be open to the Court to accept the thrust of the medical evidence adduced on behalf of the (wife) in the common law proceedings but decline to reflect the impact of that evidence in the damages awarded by virtue of an inability to be satisfied in relation to the issue of causality (or by reason of the remoteness of damage) yet have regard to the impairment of the (wife's) health, regardless of how it occurred during the marriage under Section 75(2). Ultimately the facts do not create a difficulty with this aspect of the proceedings. The issue of double counting, or avoiding double counting, therefore does not arise in the way that it potentially could." (Emphasis added)
Thus his Honour was of the view that domestic violence may be reflected in the assessment of contributions under s.79(4) where the circumstances show that it had an impact upon that party's contributions as homemaker or, within particular paragraphs of s.75(2) where they are relevant "quite apart from any tortious or causal actions" by the other party.. However, his Honour went on to say that in this case the evidence did not establish that the wife was by virtue of assaults by the husband "impeded in the making of contributions or prevented from making contributions or doing so under adversity or difficulty" and, for reasons which he developed later in his judgment, that there was no impairment to the wife's health during and subsequent to cohabitation "which need to be considered within the context of s.75(2) quite apart from the tortious or causal actions of the (husband) in that regard". He referred to the "potentially significant difference" of causality in common law proceedings and proceedings under s.79. However, he indicated that the problem of "double counting" did not arise in this case.
Later in his judgment (Appeal Book vol.1 p.101), and after having examined the evidence in some detail, his Honour returned to these issues. He said that he was "unable on the balance of probabilities to find that the (husband) was responsible for the impairment of health of the (wife) save in relation to those assaults and/or batteries in respect of which I have found verdicts for the (wife)". Importantly, his Honour went on to say:-
"That being so, there must be some other relevance for the (wife's) impaired state of health during cohabitation, the most obvious way in which that could be relevant being that it has rendered the quality of her contributions greater in that the contributions were made in the face of adversity arising from impaired state of health. The (wife) does not suggest that to have been the case and the medical evidence which I accept, does not suggest that to have been so. In the absence of any evidence linking impaired state of health with the nature and quality of contributions (irrespective of any causal link with the (husband)) there is not in my view any basis for finding that the (wife) should receive an adjustment by virtue of this factor. I believe that the High Court's decision in Mallet and the recent Full Court decision in Doherty v Doherty ((1996) FLC 92-652) provide support for this approach. Other than to the extent I have indicated in the context of the common law actions, the impairment of the (wife's) health is not established to have been due to more than the deterioration in and break-up of the marriage to the (husband)." (Emphasis added)
Although there was some discussion about these issues during the course of the appeal, his Honour's conclusions in relation to the relevance of domestic violence to the wife's s.79 claim was not the subject of challenge. In our view, subject to one possible qualification, his Honour's statements of principle are correct. As this is an important general issue, we consider that we should expand upon that statement.
Early cases in this Court appear to have rejected the relevance of domestic violence to a s.79 claim (except in cases where it was seen to have a direct financial consequence). However, in more recent times there has been a significant re-agitation of this issue both in decisions of this Court and in a number of learned articles: see Waters and Jurek (1995) FLC 92-635 at 82,378; Doherty (1996) FLC 92-652; Manna, (Coleman J, 20 May, 1996, not reported), and Rosati, supra; Behrens: Domestic Violence and Property Adjustment: A Critique of "No Fault" Discourse (1993) 7 Australian Journal of Family Law 9; Behrens: Violence in the Home and Family Law: An update (1995) 9 (1) Australian Journal of Family Law 70; Justice Murray: Domestic Violence and the Judicial Process: A Review of the Past Eighteen Years (1995) 9 Australian Journal of Family Law 26; Behrens: Recent Developments in Compensation for Violence in the Home, October 1996, 7th National Family Law Conference; Wiegers: Compensation for Wife: Abuse : Empowering Victims? (1994) 28 U.B.C. Law Review 247; Justice Morgan: Domestic Torts - Fertile Fields or Shifting Sands, Leo Cussen Institute, May 1997; Australian Law Reform Commission (1994): Equity Before the Law: Justice for Women Report No.69; Justice Chisholm: Matrimonial Property Reform: Current Proposals and Issues, March 1994; Justice Dessau: Domestic Violence and Family Law Cases, October 1995; Carp: Beyond the Normal Ebb and Flow ... Infliction of Emotional Distress in Domestic Violence Cases (1994) 28 (3) Family Law Quarterly 389.
Of the above cases, Doherty is a decision of the Full Court but the discussion of this issue is brief. Only in Rosati were the earlier cases discussed in detail. All, however, reached an affirmative answer to this question of the relevance of domestic violence within s.79.
We preface our brief further discussion of this matter by reference to the following preliminary points:-
The actions in question are variously referred to in discussions as "conduct", "misconduct", or "fault". Those terms seem to be used interchangeably. As a matter of convenience, we will use the term "conduct".
The question of what is encompassed by the term "domestic violence" in this sense has so far received little attention: (but see the definition in s.60D for Part VII purposes).
Although in this discussion reference is made exclusively to domestic violence, it is not intended to be confined to that issue. We do not consider that domestic violence is an exclusive category. It is the most obvious example of a wider and more general category of conduct which may be relevant within s.79.
This issue only really arises in a discretionary system of property settlement law. In non-discretionary systems the relevant issues and steps are generally spelt out in a way which is intended to be exclusive.
It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the "private" sphere of the home.
There has in more recent times been a marked and long overdue change in those attitudes and a greater social and legal awareness of and disapproval of domestic violence and past attitudes to it. The law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences.
In "Beyond the Normal Ebb and Flow ... Infliction of Emotional Distress in Domestic Violence Cases" referred to above there is the following observation (at 390):-
"A greater awareness and concern about domestic violence, the emergence of `domestic torts' imposing new standards of accountability on spouses and the erosion of inter-spousal tort immunity have increased Court involvement in protecting and compensating the battered or abused spouse."
Legal remedies for domestic violence which have been suggested in recent times outside the Family Law Act and equivalent legislation in other countries, include the following:-
More frequent criminal prosecutions. Greater use of intervention orders and greater involvement by the police. Civil actions for damages. The tort of intentional infliction of emotional distress. Breach of fiduciary duty. Intentional infliction of nervous shock.
It is unnecessary for present purposes to discuss any of these remedies. They indicate, however, a search for legal responses which may address the myriad aspects of domestic violence. The question raised in this case was whether and if so to what extent domestic violence was relevant in the exercise of the discretion under s.79 of the Family Law Act. If it is relevant, that should be clearly acknowledged. If it is not, then a disservice is done by attempting to apply the section to circumstances which are not within its ambit. Change is then a matter for the legislature.
Other major considerations which need to be taken into account in any such discussion include whether the well-established earlier authorities should now be reconsidered, and whether domestic violence can be legitimately included within the scope of s.79 without at the same time reintroducing conduct generally as a component of that section. That latter prospect would, we think, be inconsistent with s.79 and its history.
When divorce legislation was first introduced into the United Kingdom and into the Australian Colonies in the second half of the 19th Century, conduct was an integral part of its social and legal underpinnings. Not only were the grounds of divorce entirely fault-based (although with little recognition that domestic violence fell within them) but the right to obtain financial orders either by way of property settlement or maintenance was inextricably linked with the establishment of relevant conduct.
The same approach continued to apply when Commonwealth legislation (Matrimonial Causes Act 1959) replaced the divorce legislation of the States. This was so notwithstanding that s.86 of the Matrimonial Causes Act (the settlement of property provision) made no direct reference to conduct and was in contrast with s.84 (spousal maintenance) which did. The latter provision only applied to maintenance in the context of divorce. Otherwise State legislation continued to apply to maintenance until the Family Law Act 1975. Under State legislation it was, broadly speaking, necessary in order to obtain maintenance to establish either desertion or neglect to support, essentially fault-based issues.
However, in the years leading up to the enactment of the Family Law Act there was increasing dissatisfaction with the essential connection between property settlement and conduct. It was increasingly considered to be artificial, unfair and out of step with social realities. In discussions leading up to that legislation great emphasis was placed upon the removal of fault (at least in the divorce context) and the requirement that principal relief and ancillary relief be heard at the same time.
Section 79 replaced the previous s.86. It made no explicit reference to conduct one way or the other but it did include the rather enigmatic provision in s.75(2)(o) that the Court take into account:-
"any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account."
The early decisions of this Court were quick to adopt the view that "conduct" was no longer a relevant matter under s.79. In pre 1975 legislation, conduct as such was relevant to the determination of property proceedings and, to an extent, those orders were seen to represent social and judicial disapproval of that conduct. It seems to us that in the post 1975 cases the change was to exclude what were otherwise relevant factors under s.79 because they had their origin in conduct. That is, there may have been a failure to recognise that whilst conduct as such was not relevant to s.79, matters which were otherwise relevant within the s.79 exercise remained relevant notwithstanding that they were based in conduct. The correct position may be that such matters are relevant within s.79 not because they are based in conduct, rather despite that and because they are otherwise part of the legitimate s.79 exercise.
It is unnecessary for the purposes of the present limited discussion to consider those well known earlier cases in detail. They and the principles which were derived from them are, we think, sufficiently well known in any discussion on this aspect.
The first major decision was Soblusky (1976) FLC 90-124. That appeal concerned the question of conduct in the context of spousal maintenance. We think that the conclusion in that case that conduct was not relevant still holds good. Spousal maintenance is essentially concerned with issues of need and capacity.
However, the Full Court in Soblusky expressed itself more broadly and it has been interpreted as excluding conduct in financial matters generally under the Family Law Act. The Court set out some potential exceptions, but those exceptions were rejected in later cases and no attempt has been made to revive them.
Ferguson (1978) FLC 90-500 was an important case in this context. It was an appeal from the decision of the Victorian Supreme Court which in proceedings under s.79 held that the conduct of the husband relating to the breakdown of the marriage should be taken into account in the quantum of the order, relying upon s.75(2)(o). The Full Court of this Court upheld the appeal of the husband, concluding that the trial Judge was in error in taking that into account. The Full Court said at 77,607 that:-
"matrimonial fault in the general sense is not to be taken into account [under s.79]. The Family Law Act does not set out to punish parties on any basis when it comes to deciding their financial relationships either by way of ongoing maintenance or final property settlement."
It did, however, include within s.79 (see 77,606) conduct which "has produced consequences which have diminished or destroyed the property of the parties" or has otherwise resulted in the diminution of the value of the property, treating that as a relevant matter under s.75(2)(o).
In retrospect there is little to disagree with in that decision. It was correct (although too limiting) in its reference to conduct which has a direct financial consequence, and this is a principle which has been substantially developed in a number of later cases: see, for example, cases such as Kowaliw (1981) FLC 91-092; Hack (1980) FLC 90-886; Barkley (1977) FLC 90-216; Antmann (1980) FLC 90-908; Benson (1984) FLC 91-584; Fane-Thompson (1981) FLC 91-053 and Townsend [1994] FamCA 144; (1995) FLC 92-569. It was not part of the wife's case in Ferguson that the husband's conduct had any impact upon her contributions during the marriage; the conduct in question related to events surrounding the breakdown of the marriage. Consequently, the issue identified in this present appeal and in the other more recent cases, namely, that the conduct may be relevant within s.79(4)(c) if it has a significant impact upon the contributions of the other party during the marriage was not referred to. Nevertheless, that decision added strength to the perception at the time and since that conduct, other than conduct which had a direct financial impact, is irrelevant to property settlements.
This view was given considerable emphasis in the decision of the Full Court in Fisher (1990) FLC 92-127 and the earlier decision of Nygh J in Sheedy (1979) FLC 90-719. In Fisher, the wife in her property application alleged assaults by the husband during the marriage. The husband applied to have those allegations struck out. The trial Judge (Cook J) refused to do so. The appeal was allowed, the Full Court holding that the conduct of the parties was irrelevant because it was not of a financial nature. Nygh J gave the judgment of the Court in which he discussed the earlier cases. After referring to his own judgment in Sheedy, supra, his Honour said at 77,846-7:-
"In the present case the wife's allegations ... do no more than allege misconduct on the part of the husband. They do not contain any allegations that the wife's contribution was thereby increased or that she suffered any diminution in her future earning capacity."
Up to this point his Honour's statement appears to be unimpeachable. However, his Honour went on to say:-
"Even if the alleged misconduct of the husband had that consequence it would not per se have been relevant."
It seems to us that this is the essential difference which the more recent cases have identified.
It is interesting to note that in Manna, supra, Coleman J preferred the view of Cook J at first instance in Fisher's case to that of the Full Court. His Honour said of the following passage from the judgment of Cook J that "the view expressed at first instance by Cook J more closely reflects the court's view today of such matters". What Cook J said was:-
"If a party is subjected to a situation within a marriage relationship where they do endure, if one might use that expression, or are subject to some repeated discomfort, violence, ill-treatment, matters of that kind by the other party and nevertheless they continue to perform the role of homemaker, then it is difficult to see that those matters can be left out of consideration by the Court. Indeed, in particular circumstances, it might be quite clear that rather special consideration has to be given to the efforts made by one or other of the parties, or even both parties if they have mutual claims of ill-treatment against the other party, either psychological or physical, that this role of homemaker must be given a special weighting or consideration in the case."
Turning briefly to the more recent cases, in Waters and Jurek, supra, the reference at 82,378 by Fogarty J to the circumstance that "It is possible that aspects of Ferguson and Soblusky may require a reconsideration in the light of, for example, the potential relevance of domestic violence within s.79." was intended to be a reference to the more recent debate on these issues.
In Doherty, supra, there is a clear statement by Baker J, with whom Fogarty and Hannon JJ agreed, that domestic violence may in an appropriate case be relevant to contributions. The actual issue itself was not a ground of appeal and was not the subject of any substantial discussion in that appeal. Thus its status as an authoritative pronouncement by the Full Court of this Court is doubtful. In addition, there was no discussion of the previous cases.
In Manna, supra, the affidavit of the wife contained allegations of serious assaults by the husband, resulting in medical treatment and causing residual injury. Counsel for the husband sought to have those allegations struck out. In relation to s.75(2) the argument for the husband was that particular paragraphs of s.75(2) were directed to the relevant issues - permanent injury and prospective loss of earning capacity - and causation was unnecessary and therefore irrelevant.
This is an important issue - whether conduct is relevant in the s.75(2)issues. The argument is that if the circumstance is that the claimant suffers from ill-health, either physical or psychological, or has a reduced earning capacity because of physical or psychological deficits, those matters would in any event be taken into account under the relevant paragraphs of s.75(2) and given full weight. The circumstance that that was brought about wholly or partly as a result of the other party's conduct would therefore be irrelevant and in isolation would be seen as punishing the conduct itself, a role better left to the common law. Chisholm J in Matrimonial Property Reform, above, after referring to the decision in Hack (1980) FLC 90-886 where the wife's capacity for employment had been adversely affected by an assault by the husband, said that:-
"Her position (that is, her incapacity to work) would be exactly the same if she had been knocked over not by her husband but by a bus. In each case it is her lack of employment and her inability to obtain employment that is relevant for the purposes of financial adjustment."
This view has attractions to it. But it seems to us to carry with it the assumption that any deficit, such as ill-health, unemployment, etcetera, will be given full effect within s.75(2) even if it arose from factors which were unconnected to the marriage, and may have occurred long after the marriage ceased. This gives rise to the "social engineering" objection. We have some reservations about this approach and prefer to express no final view about it.
Returning to Manna's case, Coleman J, dealing with the question of the relevance of the husband's conduct in the area of contribution, said:-
"It was conceded properly, I would have thought, with respect, by learned counsel for the respondent, that had there been evidence adduced in the wife's affidavit to demonstrate that by virtue of her injuries the contributions that the (wife) made subsequent to the date of being injured were more difficult to undertake or more onerous by virtue of her injuries, that could go to the nature and quality of her contributions and, if accepted, result in some enhancement of them."
His Honour referred in that context to Doherty's case.
Similarly, in the decision in Rosati, supra, Chisholm J discussed in detail the cases to which we have briefly referred and concluded that:-
"It is sufficient to say that in my view the authority of Doherty, and arguably of Mallet, precludes judges at first instance from holding that there are categories of matters, such as conduct, that cannot as a matter of law be taken into account in proceedings under s.79".
Both Coleman J and Chisholm J seemed to rely on Mallet's case, presumably the well known passage in the judgment of Wilson J that:-
"The quality of the contribution made by a wife as home maker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements."
We doubt whether Mallet's case was taken at the time as authority for the view that domestic violence had relevance and in many cases since, including Ferraro, supra, the Full Court has been at pains to read that passage down in the sense of negativing any suggestion that each case necessarily requires a close examination of standard of housekeeping, etcetera.
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.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those longstanding authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this Court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this Court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears to be appropriate to give effect to them: see Nguyen (1989) 169 CLR 245; Farnell (1996) FLC 92-681, and Ivanovic (1996) FLC 92-689.
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 (as in Ferguson) 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). Similarly, in Killick v Killick(1997) 21 Fam.L.R. 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.
SECTION 79 PROCEEDINGS
His Honour's conclusions under this heading were that the husband pay to the wife $400,000, the components being $200,000 for contributions (s.79(4)(a)-(c)) and $200,000 for what is generally described as the s.75(2) factors. Both parties challenged this outcome, principally on the basis that it was outside a reasonable range of discretion under s.79.
When the trial commenced the wife sought an amount of $800,000. At the end of the trial her counsel's submission was that she should receive 15% of the total property of the parties - that is, approximately $1.3m. On the other hand, the husband's case at trial was that the proper amount to be awarded was $150,000.
On the hearing of this appeal both counsel proceeded upon the basis that if the trial Judge was in error in a relevant sense this Court should re-exercise the discretion rather than remit the proceedings for a re-trial. For the wife it was contended that the proper re-exercise of that discretion was an amount of $1m. (approximately 11%). For the husband it was contended that the figure of $300,000 should be substituted.
(a) Background Facts and Property
The trial Judge set out the relevant facts and his conclusions in some detail. We have already set out the background facts which it is unnecessary to repeat. At trial there were several valuation issues. On appeal the wife challenged his Honour's conclusion about the value of the company through which the husband conducted his business. We do not consider that there is any substance in this ground and that it can be disregarded. His Honour also set out the history of the acquisition of properties by the husband during the marriage. That history was not challenged and as it has only a limited significance in this appeal it is unnecessary to repeat that detail. His Honour summarised that aspect as follows:- (Appeal Books vol.1 p.61)
The effect of the trial Judge's method has been to leave out of account any value of the husband's undoubted capacity to generate a very large business income.
151. These grounds are concerned with the value which the trial Judge found in relation to the husband's interest in Ian Kennon Pty Ltd. The trial Judge accepted the evidence of the husband's expert, Mr Ryn, as opposed to the wife's expert, Mr Tighe, for reasons which he gave in paragraphs 215 to 222 inclusive in AB 1.
152. The effect of his Honour's decision to accept Mr Ryn's valuation, which was some $2.4 million less than asserted by Mr Tighe, was that whatever significance it might have had in the assessment of contributions was to a large extent offset by the application of the provisions of s75(2)(b) insofar as the husband's earning capacity and ability to earn a substantial income is concerned.
153. Mr Tighe maintained that the company should still be valued on the basis of a capitalisation of future maintainable profits in the amount that he had concluded as at 30 June 1995, namely $5,351,200. By contrast, Mr Ryn valued the company on a net asset backing basis, having regard to major changes in the company's operations which occurred subsequently to 30 June 1995, namely:-
(a) The loss of two major accounts;
(b) Sale of the goodwill of the business and transfer of the David Jones' advertising work at the end of 1995;
(c) The lack of viability in contracts which showed a loss, coupled with the full time employment of the husband with two radio stations.
154. The trial Judge carefully analysed and reviewed the competing accountancy evidence which was before him and made findings of fact on each significant and relevant issue.
155. Authorities such as Sapir and Sapir (No2) (1989) FLC 92-047 and Turnbull and Turnbull (1991) FLC 92-258 have held that when valuing shares in private companies, the Court must look at the "reality of the situation". In the present matter the facts were that subsequent to 30 June 1995, and indeed as at the date of the trial, the company was a mere shell of what it had previously been. The husband was no longer engaged in its activities and it was running at a loss.
156. In my opinion, it was open to the trial Judge to have accepted the evidence of Mr Ryn and therefore no appellable error can be demonstrated.
Ground 9:
The wife's foregoing of children should have been held, in the circumstances of this case, to be a contribution.
The trial Judge's conclusion that it could not be so treated because it was a matter of consent cannot be sustained. Most contributions to be considered under section 79 are matters to which both parties have agreed.
157. These grounds of appeal are, in reality, destroyed by paragraph 1 of Senior Counsel for the wife Mr Broun's submissions, which, in substance, were:-
"In any marriage the parties agree how they will conduct themselves. Which of them is the homemaker and parent and which of them is the wage earner is fixed primarily by agreement although our society still recognises an overall sexually based role in most cases. Whether they employ domestic assistance is a matter of their resources and a matter of agreement. Whether the wife helps in the husband's business or remains strictly out of it, is again usually a matter of agreement or a decision taken by one or other of the parties and accepted by the other. Similarly having children is a matter of agreement and if the parties have children and rear them, that is a significant contribution."
158. Those are indeed the precise issues. People marry for a variety of reasons. Some marry in order to have children and devote themselves as full time homemaker, wives or husbands and parents. Others form an economic unity in which both work, pool their resources and instead of using those resources in the upbringing of children, concentrate their efforts on acquisition of property, travel, investment in the arts, and the like. During her evidence, the wife conceded that during conversations which the parties had held prior to the commencement of their cohabitation, they had agreed that they would not have any children. The wife also gave evidence that she did not have the same desire to have children as perhaps many other women did. A significant plank of the wife's case in this regard seems to have been that she spent what would have been her normal childbearing years with the husband in circumstances in which there had been agreement that no children would result from their cohabitation.
159. The trial Judge found in paragraph 269 in AB 1:-
"269. Two factors were sought to be made relevant under Section 75(2)(o), the first being the "foregoing of children", the second being the impact on the health of the applicant during cohabitation of her depression and anxiety as diagnosed by medical practitioners. So far as the former ground is concerned, it would in my view be an injustice of considerable magnitude to make allowance for the fact that the parties agreed prior to commencing cohabitation that they would not have children, an agreement which both parties adhered to."
160. The wife not having disputed that such an agreement was reached, it is difficult to see how her failure to have children could be recognised in any way as a contribution under s79(4) or a factor to be taken into account in some measure pursuant to s75(2).
161. In my view, and for these reasons, this ground cannot succeed.
Ground 10:
The total award under section 79 of the Act, including both the assessment of contributions and the assessment of section 75(2) factors, was outside the reasonable ambit of the trial Judge's discretion.
162. This ground is an extension of Ground 7, wherein complaint was made in relation to the trial Judge's assessment of contributions under s79(4). Ground 10 is an expansion of that ground in that it asserts that the total award of $400,000, including the assessment of contributions and the s75(2) factors was outside the reasonable ambit of the trial Judge's discretion. In essence, the wife asserts that the overall result was manifestly unjust to her.
163. The trial Judge, on and from page 94 of AB 1, under the heading, "Section 75(2)", considered all the s75(2) factors before reaching his final conclusion. As Mr Rose submitted on behalf of the husband, there were no children born to the relationship of the parties and therefore the wife had no continuining obligation in respect of infant children.
164. No challenge was made to this Court in the course of the hearing of the appeal in regard to any of the findings of fact which the trial Judge made in his identification of s75(2) factors.
165. For reasons which I gave in relation to Ground 7, the findings which a trial judge makes when identifying contributions under s79(4) are findings of fact. So is the identification of relevant s75(2) factors a fact finding exercise. A trial judge's exercise of discretion comes into play when he translates the findings of fact made in relation to s75(2) factors into the overall result, whether it be a precise lump sum, as in this case, or by way of a percentage adjustment of the overall property of the parties.
166. His Honour, as set out in the paragraphs referred to above, came to the conclusion that $200,000 was, in the exercise of his discretion, the appropriate sum and represented a translation into economic terms of his findings of such of the s75(2) factors as were relevant to the facts of this case.
167. The authorities to which I have referred earlier under Ground 7 as to the manner in which an appellate court hears and determines appeals from discretionary judgments is the same as that to which the Court must take when considering the result achieved in a s75(2) adjustment and in relation to the overall result.
168. The husband is clearly a wealthy man, possessed of significant assets. The trial Judge, in a lengthy and well reasoned judgment, dealt with all relevant issues, made the necessary findings of fact and, in my view, correctly applied the law as it applied to the particular facts he was concerned with. In my opinion, his Honour made no significant errors of fact, nor am I able to discern any error of principle.
169. Nothing that I have said in these reasons for judgment should be seen to be an abandonment of what I said in Doherty and Doherty (1996) FLC 92-652 at p. 82,683 in relation to the effect of domestic violence in proceedings instituted pursuant to the provisions of s79. The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
170. In my opinion it is preferable in most cases for domestic violence in a marriage to be taken into account as an element of contribution rather than for litigants to pursue damages claims for assault and/or battery in cross-vested proceedings from a State Supreme Court. Cross-vested claims for damages, as this appeal clearly demonstrates, are rather cumbersome proceedings which do not fit comfortably with litigation under the Family Law Act because of the necessarily rigid nature of Supreme Court practice and procedure.
171. For all these reasons therefore, the appeal must be dismissed.
CROSS APPEAL
172. The cross appeal raises several grounds of appeal and it is appropriate for these grounds to be considered seriatim and the appropriate findings and comments made:-
Ground 1(a)
His Honour erred in implicitly taking into account and giving weight to the cost of a home unit at $300,000 in the absence of any evidence to support the same.
173. In the course of his consideration of the provisions of s75(2)(e) of the Act, the trial Judge considered the relative standards of living of the parties before him. His Honour found that the husband's standard of living was significantly higher than that of the wife when cohabitation commenced. His Honour observed that the probabilities were that the wife experienced a standard of living during her five years of cohabitation with the husband which she had not previously enjoyed. His Honour expressed the view that, due to the duration of the cohabitation, and considering the nature and extent of the wife's contributions, it was not reasonable to regard the wife as having an entitlement to or "expectation" of a standard of living as high as the husband.
174. His Honour then compared the provisions of s75(2) with certain provisions of the De Facto Relationships Act (NSW). In relation to his considerations of "expectation", his Honour made the following comment:-
... Had the parliament intended "expectation" factors to be relevant to the determination of proceedings under Section 79 of the Family Law Act the parliament presumably would have so stated in the legislation itself. In my view it is reasonable for the applicant to "expect" in reliance upon her contributions under Section 79 of the Act and relevant Section 75(2) factors, as therein set forth, a standard of living in the future which involves her owning a place to live of her own free of encumbrance."
175. The trial Judge then made the following comment:-
... There is no evidence as to the conceivable cost of a reasonable home unit on the North Shore (which is the effect of the applicant's evidence as to her intentions) and a figure in the order of $300,000 is a guess on my part."
176. The husband complains that the trial Judge erred in assessing the prospective cost of the home unit for the wife in the amount of $300,000 notwithstanding:-
(a) There was no evidence in relation to the cost of the home unit on the North Shore or anywhere else;
(b) The amount of $300,000 was, "a guess on my part";
(c) Neither of the parties gave evidence of the probable cost of accommodation for the wife;
(d) There was no evidence given by the wife as to the area, features, or nature of any accommodation which she might require;
(e) The finding that the wife currently enjoyed a reasonable standard of living.
177. What the trial Judge was really doing in paragraph 262 in my opinion, was to take account of the wife's future needs in relation to her accommodation and mode of living.
178. Judges, particularly those who spend their time day after day hearing property disputes following the breakdown of marriage, do not live in isolation and are not blissfully unaware of the cost of housing in the areas in which they live and work, or of market trends in residential real estate. In the absence of any evidence from either party in relation to the probable cost of accommodation for the wife, the trial Judge, in my view, used his common sense and knowledge of the Sydney real estate market gained through years of experience, both in practice and as a Judge of the Court, and concluded that $300,000 was a reasonable sum as representing the cost of a home unit on the North Shore, in the circumstances of this case.
179. In my opinion and for these reasons, this ground cannot succeed.
Ground 1 (b) and (c):
His Honour erred in finding the wife's capacity to earn income had deteriorated during the period of cohabitation, notwithstanding the findings as to the nature and extent of the work performed by her.
His Honour erred in failing to find that the wife's capacity to earn income had improved during the period of cohabitation, having regard to the findings referred to in ground 1(b) and the evidence of prominent personalities who she had become acquainted with in the marketing and media industries.
180. These grounds relate to the trial Judge's consideration of the provisions of s75(2)(k). The appellant submits that the trial Judge's findings in relation to these matters were in error, for the reason that the marriage had in fact increased the wife's capacity to earn an income, rather than reduced it. The specific matters which Senior Counsel for the husband Mr Rose relied upon in support of these grounds were as follows:-
181. At the commencement of cohabitation, the wife was employed by the husband's company as accounts manager, earning approximately $45,000 per annum, plus the payment of petrol expenses. That employment was entered into shortly prior to the commencement of cohabitation and represented a salary increase of $6,000 per annum, when compared to her earnings from her previous employment as an assistant to the creative director at Channel Ten.
182. Until January 1991, the wife was employed by the husband in his advertising agency, managing a major account, and two minor accounts, which duties she performed responsibly and competently. Thereafter, the wife was employed in the agency on a part time basis.
183. The wife completed a course in typing and work practice with the Williams Business College.
184. The wife met a range of prominent people in the media and advertising industry for the first time, and her friendship with one of them led to the opportunity for the wife's current employment with Channel Nine.
185. In paragraphs 265 and 266 on pages 99 to 100 of AB 1, the trial Judge considered all the evidence in relation to these matters and reached the following conclusion:-
"I am not satisfied, on the balance of probabilities, that the applicant established that the duration of the marriage affected her earning capacity and, as such, it is difficult to allow any substantial adjustment by virtue of this factor although it does appear that the applicant's earnings at present are marginally less than they were at the commencement of cohabitation and that, accordingly I could reasonably infer that here capacity has deteriorated in real terms given that it is not suggested that the applicant has a capacity which she is currently failing to exercise."
186. The evidence was not disputed that at the commencement of cohabitation, the wife was employed by the husband's company at a salary of approximately $45,000 per annum, plus the payment of petrol expenses. At the time of separation on 1 March 1994, the wife's salary had reduced to $28,588 per annum.
187. The wife's evidence in relation to her income during the relevant periods in respect of which the husband was not in disagreement has been reproduced earlier in these reasons for judgment.
188. In her oral evidence, the wife stated that in December 1995, her net wages were about $500 per week, which had not altered at the time she was giving her oral evidence on 14 March 1996.
189. On any view of the evidence, it is clear that the wife's income at the end of the marriage and subsequent thereto, was less than what she had been earning at the commencement of the cohabitation.
190. In my opinion, and for these reasons, the trial Judge was justified in making a "modest adjustment" in relation to the matters referred to in s75(2)(k). Therefore, these grounds cannot succeed.
Ground 1(d):
His Honour erred in making an adjustment for Section 75(2) matters in the sum of $200,000 in that such an amount was not within the reasonable exercise of discretion, having regard to the relevant findings of fact made by him.
191. Senior Counsel for the husband Mr Rose submitted that an adjustment in relation to s75(2) factors of an amount of $200,000 was well outside the range of a reasonable exercise of his Honour's discretion. It was further argued that this was so because of the following specific findings which the trial Judge made in the course of his reasons for judgment:-
(a) The parties cohabited for a relatively short period, being less than five years from 1989 until February 1994.
(b) The parties had no children.
(c) The wife is 36 years of age and in good health.
(d) The wife has tertiary qualifications and is engaged in a similar type of employment to that which she held shortly prior to the cohabitation. In addition, there was no evidence that her current position is below the level of her skills.
(d) There was no evidence that the wife does not currently enjoy a reasonable standard of living.
(e) That at separation the wife's assets were greater than those she had at the commencement of cohabitation and currently include a Mercedes Benz motor vehicle ($33,000), jewellery, ($13,900) and savings ($7,500).
(f) The matters relied upon by the husband in support of grounds 1(a) (b) and (c).
(g) The husband's greater earning capacity and his superior assets merely reflect the situation which existed at the time of the commencement of cohabitation and, further, that his present assets were either held by him at the commencement of cohabitation, or otherwise derived from the realisation of other assets held by him at that time and from time to time.
192. The trial Judge on and from paragraph 250 on page 93 of AB 1, considered the s75(2) factors in detail and traversed much of the evidence given in the course of the trial, before reaching his findings in relation to each individual paragraph.
193. The only findings which the cross appellant challenged in relation to the s75(2) factors are as set out in Grounds 1(a), (b) and (c) of the cross appeal. For reasons which I have already given, there is no substance in any of those grounds and therefore, in my opinion, the findings of fact which his Honour made in relation to s75(2) factors were open to him on the evidence and no appellable error has been demonstrated.
Ground 2(a)
His Honour erred in awarding damages based, in part, on psychological damage, notwithstanding his findings of fact that the evidence did not enable him to establish any causation between the assaults found to have been proved and the alleged psychological damage.
194. Counsel for the husband submitted that the trial Judge erred in awarding general or compensatory damages to reflect psychological damage, notwithstanding that his findings of fact did not enable him to provide the necessary linkage between the tortious act as proved and the damages which resulted.
195. It was submitted that the trial Judge in awarding the wife an adjustment in respect of psychological damage suffered by the wife in relation to the incidents of assault found proved against the husband misconstrued the medical evidence. In order to address this ground of appeal it is necessary to survey both the relevant medical evidence before the trial Judge and his findings that flowed from it.
196. On and from paragraph 138, his Honour considered the quantum of the psychological damage which he proposed to award in respect of each of the claims which had been proved. His Honour's findings and the relevant damages awarded referrable to the wife's psychological damage have previously been set out in these reasons for judgment.
197. Dr McMurdo was a psychiatrist called on behalf of the husband. He saw the wife on 21 February 1996. The trial Judge considered Dr McMurdo's evidence in the following passages which appear on pages 55 and 56 of AB 1:-
There came into evidence as Exhibit A9 a report of Dr Rob McMurdo dated 26 February 1996. Dr McMurdo saw the applicant on 21 February 1996 at the request of the solicitors for the respondent. Dr McMurdo's opinion, from the history obtained and "confirmed by my examination" suggests that the applicant had "no particular emotional problems in her earlier life" but of having become "quite distressed and depressed as the marital relationship began to break down". Dr McMurdo stated that the applicant attributed that to "brutal attacks" by the respondent, "particularly in front of her step-children". Dr McMurdo said that "accepting the history given to me", it would seem that the applicant was exposed to a very difficult situation", setting out reasons for that.
Dr McMurdo's opinion (page 3) was "almost certainly she suffered from an adjustment disorder with depression and anxiety as defined in DSM IV Classification of Mental Disorders. At times her diagnosis may have warranted the label of major depressive disorder, but the more appropriate diagnosis is probably the former term". Dr McMurdo referred to the applicant's presentation during interview noting that it was "not uncommon" and "does not necessarily indicate that she is severely depressed at this point in time". Dr McMurdo's opinion (page 4) was that the applicant had "a severe reactive depression" although that had "predominantly resolved" although the applicant is "still obviously very vulnerable". Dr McMurdo expressed the opinion that the applicant could "easily become seriously depressed in the future, particularly if she were to be intimidated". Dr McMurdo referred to the fact that the applicant is working at the moment, stating "from the psychological point of view she is quite fit for employment"."
198. His Honour's findings in relation to Dr McMurdo's evidence are contained in paragraph 134 on page 56, and were as follows:-
"I accept the evidence of Dr McMurdo, arising as it did from an examination of the applicant conducted at the request of the respondent's solicitor and given that Dr McMurdo was not required for cross examination on his report. The evidence of Dr McMurdo establishes, given that some of the history to which I have referred has been substantiated, that the applicant did, in part at least as a result of violence which she received at the hands of the respondent, suffer an adjustment disorder with depression and anxiety, or, as Dr McMurdo describes it later in his report "quite a severe reactive depression". Dr McMurdo's evidence establishes that this has "predominantly resolved" subject to the proviso which the evidence, of the applicant and her lay witnesses, does not suggest to have become operative."
199. As the trial Judge pointed out on page 56, the difficulty with Dr McMurdo's evidence was in relation to the causality of his findings and conclusions. The problem for the trial Judge was, particularly in the absence of any cross examination of Dr McMurdo, whether the wife's severe reactive depression was caused by the assaults or by the deteriorating marriage. In addition, as his Honour pointed out at the top of page 56 of AB 1, there were also difficulties in relation to the remoteness issue.
200. As his Honour noted in paragraph 136, if he was to include a component for psychological damage in respect of the amount to be awarded for the assaults and batteries, then a causal link must be established between the psychological condition as found by Dr McMurdo and the tortious acts.
201. His Honour found on the evidence that he was satisfied that the wife had suffered psychological damage as indicated by Dr McMurdo in his report and that a portion of such damages was referable to the assaults and batteries committed by the husband upon the wife during their period of cohabitation.
202. In paragraph 137 of his reasons, the trial Judge then asserted:-
"What portion of the psychological damage was referable to those assaults and/or batteries I cannot say with precision, much less suggest as between the proved assaults and/or batteries what significance each particular assault and/or battery has in that context."
203. His Honour then referred to the submissions of counsel and made the following finding:-
"...I am not persuaded that the applicant must establish that any psychological damage sustained by her must be proved to be solely due to the respondent's tortious acts provided that she can establish that any such damage is to some extent causally connected with and not too remote from such acts. Courts exercising common law jurisdiction have apparently not had to deal with multiple claims of assault and battery involving the same parties. Where that occurs, particularly where the parties are cohabiting, and where other factors, as Dr McMurdo suggests in this case, have contributed to the psychological trauma suffered by the applicant, the task which confronts the Court becomes extremely difficult. Ultimately the interests of justice dictate that compensatory damages, under which heading the applicant's psychological trauma falls, must be quantified. In all the circumstances, and without suggesting that the approach attains the clarity and precision for which the common law strives, to fail to reflect as a component of the applicant's compensatory damages in respect of those claims which I find proved, any allowance for the psychological damage which I find the applicant sustained would mean that the Court had shied away from doing justice."
204. On and from page 50 of AB 1, the trial Judge considered Dr Wilton's evidence insofar as it related to this aspect of the case. In relation to Dr Wilton's evidence, the trial Judge made the following findings and observations:-
(a) Dr Wilton was unable to indicate any particular assault or battery caused or specifically contributed to any change of personality on the part of the wife.
(b) Marriage breakup is often accompanied by depression and lack of confidence.
(c) He was unable to say what the wife's personality change was referable to.
(d) He could not suggest any causal link between the alleged assaults and batteries and his observations of the wife's health.
205. Dr Wilton however, was a general practitioner and, in all probability, he would not be in any position to comment upon the existence of any causal connection between the wife's allegations of assault and battery on the one hand and any psychological damage which may have been caused to the wife on the other.
206. Dr Wu's evidence in large measure having been discounted by the trial Judge, his Honour was then left with the evidence of Dr McMurdo when seeking to establish any link or causal connection between the assaults and batteries on the one hand, and the psychological damage suffered by the wife on the other.
207. It was contended by Mr Rose for the husband that the principles of law which must be applied are:-
(a) That each particular assault or battery constitutes a separate cause of action.
(b) It must be established on the facts that the damage complained of was caused by such proved tortious act, for the purpose of recovering damages in each separate cause of action.
208. It was submitted therefrom, for an award to be made in relation to psychological damage, there must be a causal connection between such psychological damage and each tortious act in respect of which liability had been proved. In other words, it was asserted that psychological damage cannot be assessed in a cumulative or global fashion in the absence of any direct causal link between the psychological damage and the individual tortious act.
209. In my opinion, it was a question of fact for the trial Judge to find whether or not the wife's depression had been caused by the tortious acts perpetrated upon her by the husband.
210. The question for this Court to determine is, having regard to the findings which the trial Judge made, was it open to the trial Judge to have awarded sums in respect of psychological damage because of the unsatisfactory nature of the evidence and by reason of the difficulties which the trial Judge himself identified? The trial Judge's statement of principle, as set out on the bottom of page 57 of AB 1, is attacked by the husband for the reason that the trial Judge was bound to find a direct causal connection between the psychological damage and the tortious act, for the wife to succeed in obtaining an award under that heading.
211. The trial Judge found, on the balance of probabilities, that the wife had established that the severe reactive depression observed by Dr McMurdo was, "to some extent causally connected with, and not too remote from, such acts".
212. In my opinion, that finding was open to the trial Judge, having regard to the whole of the evidence, even allowing for the fact that some aspects of the evidence were either unsatisfactory or inconclusive.
213. For all these reasons therefore, this ground, in my opinion cannot succeed.
Ground 2(b)
His Honour erred in the quantum of damages awarded under each head for such of the assaults proved in the quantum was grossly disproportionate to each of such assaults.
214. The husband complains that the amounts awarded for each head of damages in respect of each of the assaults and/or batteries proved, were excessive. No text on assessment of damages, nor decided cases in relation thereto, were referred to the Court by Senior Counsel for the husband Mr Rose in support of this ground.
215. Having regard however, to the severe nature of at least some of the assaults and batteries, and the trial Judge's findings in relation to psychological damage, I am not persuaded that the amounts awarded were in any way excessive. The trial Judge did the best he could with the evidence which was before him and correctly, in my view, dealt with each assault and/or battery as an individual tortious act. His Honour reached his conclusion on damages following his consideration of the individual heads of damage which were applicable to each of the incidents complained of.
216. Assessment of damages is a discretionary exercise by a trial judge and, as such, the husband faces the same authorities and principles on appeal as referred to earlier in my reasons for judgment. (See Sharman v Evans etc. (supra)).
217. For these reasons therefore, this ground cannot succeed.
COSTS
218. At the commencement of the hearing of the appeal, the Court granted leave to the wife to appeal out of time from an order made by the trial Judge following the substantive judgment in relation to costs. That order in specific terms was that the wife's application for costs be dismissed.
219. As it would be inappropriate for the Court to hear any appeal arising from the order in relation to costs until the decision in the substantive appeal has been handed down, the Court declined to hear any argument in relation to the costs of the trial. I propose to direct that each party file and serve written submissions in relation to the appeal against the trial Judge's order for costs, which the Court will then consider.
220. Similarly, the Court did not require counsel for the parties to make submissions in relation to the costs of the appeal and cross appeal for the reason that until the result of the substantive matter is known, it would be difficult, having regard to the facts, for counsel to make any meaningful submissions in relation to the costs of the appeal.
221. Accordingly, I would also give directions for the filing and serving of written submissions in relation to the costs of the appeal and the cross appeal.
PROPOSED ORDERS:
1. That the appeal be dismissed.
2. That the cross appeal be dismissed.
3. That the appellant wife file and serve any written submissions which she seeks to make in relation to the appeal from the order of 19 April 1996 in relation to the costs of the trial, and in relation to the costs of the appeal and the cross appeal within twenty one (21) days.
4. That the cross appellant husband file and serve any submissions on which he seeks to rely in relation to the costs of the trial and in relation to the costs of the appeal and the cross appeal within a further twenty one (21) days thereafter.
5. That each party endorse on the cover sheet of any submissions filed pursuant to Orders 4 and 5, the date upon which those submissions were served upon the other party.
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