Kennon & Kennon

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.