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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kennon & Kennon [1997] FamCA 27
Case
[1997] FamCA 27
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia heard an appeal and a cross-appeal concerning property settlement and damages for assault. The appellant wife sought to overturn certain findings of fact and credit made by the trial judge, and also challenged the trial judge's approach to assessing damages for alleged assaults. The respondent husband cross-appealed, arguing that the trial judge erred in his method of assessing damages for psychological harm.
The primary legal issues before the Full Court were whether the trial judge's findings of fact and credit were reasonably open to him, and whether his Honour had correctly applied common law principles in assessing damages for assault, particularly in the context of domestic violence occurring over an extended period. The court was required to consider the appropriate method for proving individual assaults and connecting them to resultant damages, and whether a more global approach to assessing damages for a series of assaults was permissible within the framework of common law claims litigated in the Family Court via the cross-vesting legislation.
The Full Court affirmed the principle that findings of fact and credit by a trial judge are not to be set aside unless it can be shown that the judge failed to use or palpably misused their advantage, or acted on evidence inconsistent with incontrovertibly established facts or which was glaringly improbable. Applying this standard, the court found that the wife's challenge to the trial judge's credit findings fell short of the required threshold, and therefore those findings stood. Regarding the damages claims, the court held that, as common law claims, they must be conducted in the Family Court in the same manner as in common law courts, requiring individual assaults to be identified and proved on the balance of probabilities. While acknowledging the practical difficulties and potential unfairness this posed in domestic violence cases, the court concluded that it was not open to them to depart from this established common law approach, given the cross-vesting scheme mandated the application of State law. However, the court found that the trial judge was correct in his approach to assessing damages arising from the cumulative effect of a number of assaults where it was not practical to relate the damage to individual incidents.
The appeal and cross-appeal were dismissed. The court ordered that written submissions be filed and served by each party in relation to the costs of the trial, the appeal, and the cross-appeal.