Pichard & Pichard
[2022] FedCFamC1F 549
•12 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pichard & Pichard [2022] FedCFamC1F 549
File number(s): PAC 2584 of 2021 Judgment of: RIETHMULLER J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – PROPERTY – Accrued Jurisdiction – Where the respondent seeks to join a common law claim in tort for personal injuries allegedly inflicted by the applicant to the de facto property proceedings – Whether the Court has accrued jurisdiction as a result of having jurisdiction to determine the property settlement proceedings between the parties – Leave to join tort claim refused. Legislation: Australian Constitution ss 75, 76
Family Law Act 1975 (Cth) ss 4AB, 79, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 29
Limitation Act 1969 (NSW) ss 50C, 50D
Limitations Act 2002 (Ontario) s 16
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
BHP Billiton Iron Ore v The National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157
Crampton & Robinson [2013] FamCA 65
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Fisher and Fisher (1990) FLC 92-127
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Loncar & Loncar (2020) FLC 94-054; [2021] FedCFamC1A 14
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
Re Wakim (1999) 198 CLR 511; [1999] HCA 27
Saba and Saba (1984) FLC 91-579; [1984] FamCA 42
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36
Tullo & Tullo [2016] FamCA 716
Yen & Yen (2010) 42 Fam LR 691; [2010] FamCA 1
Ahluwalia v Ahluwalia [2022] ONSC 1303
Giovine v Giovine (1995) 663 A. 2d 109 (Sup Ct of NJ)
R v BF [2022] QCCQ 1719
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 21 July 2022 Place: Parramatta Solicitor for the Applicant: Brydens Lawyers Solicitor for the Respondent: Marsdens Law Group ORDERS
PAC 2584 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PICHARD
Applicant
AND: MS PICHARD
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
12 August 2022
THE COURT ORDERS THAT:
1.The respondent's application to join a claim in tort for personal injuries against the applicant is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pichard & Pichard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
The parties, who are now both in their late sixties, were in a de facto relationship for around 40 years, from about 1979 until approximately March 2020. The applicant brought these proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) for property settlement orders. The only significant asset of the parties is the superannuation interest of the respondent.
The respondent seeks to join a common law claim for personal injuries against the applicant, which she argues is within the jurisdiction of the Court as a result of the Court's accrued jurisdiction.
Background
The personal injuries claim is set out in the draft pleadings annexed to the respondent’s Amended Response filed 17 August 2021. The pleadings particularise a significant number of alleged assaults causing bodily harm between about 1982 and 2016, resulting in a long list of injuries, including black eyes, a broken nose, a broken right middle finger, bruising to the whole body, a cellulitis infection to the left foot, fractured ribs, hearing loss, scratches and abrasions to the whole body, a soft tissue injury to the left foot, split lips, and psychological injuries. As a result, the respondent claims general, aggravated and exemplary damages for the intentional tort of assault.
On 31 August 2021, the applicant filed a Reply to the respondent’s Amended Response, simply requesting that the respondent’s Amended Response be dismissed and that the respondent pay his costs.
The Limitation Act 1969 (NSW) imposes a three year limitation period on claims for damages for personal injury from the date when the cause of action is discoverable (see s 50C(1)(a) and s 50D). The respondent only particularised one alleged assault occurring after 2016 (and therefore within the limitation period), as follows:
On 12 April 2020, the Defendant and Plaintiff engaged in a verbal argument, resulting in the Plaintiff fearing for her safety and locking herself in her bedroom.
(Respondent’s Amended Response filed 17 August 2021, Annexure A, paragraph 29)
Is a tort claim for assault within the accrued jurisdiction of the Court?
The applicant argued that the Court’s accrued jurisdiction does not extend to cover the respondent’s personal injuries claims as a result of the Court having jurisdiction to determine the property settlement proceedings between the parties, and that if it did, it would not be appropriate to allow the claim to be joined to these proceedings.
It is without doubt that conduct between parties to a de facto relationship, to the extent that it caused one party’s contributions to be significantly more onerous, is a relevant consideration in property settlement proceedings: see Kennon & Kennon (1997) FLC 92-757; Benson & Drury (2020) FLC 93-998. It is clear that the conduct that the respondent complains of occurring during the parties’ de facto relationship, if proved, would found a strong arguable case for a Kennon style contribution consideration.
The Federal Circuit and Family Court of Australia (Division 1) is a federal court invested with federal jurisdiction. Tort claims at common law are within state jurisdiction. The cross-vesting scheme is of no assistance here as the High Court found, in Re Wakim (1999) 198 CLR 511, that the states may not validly confer state jurisdiction upon federal courts. However, this Court has jurisdiction in proceedings associated with a matter where the jurisdiction of the Court has been validly invoked: see s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Accrued jurisdiction arises when it is necessary or desirable to deal with all of the issues that arise in a judicable controversy in one proceeding, the limits of which are set by reference to the “matter” in the sense that that term is used in s 75 and s 76 of the Australian Constitution: see Fencott v Muller (1983) 152 CLR 570. Mason J, in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512, explained that the accrued jurisdiction covers “an attached non-severable claim” which may arise as either “the resolution of the attached claim is essential to a determination of the federal question” or “the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts”. Importantly, the associated jurisdiction does not arise “in respect of a matter simply because it is closely associated with a matter within jurisdiction”: see Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261, at 278.
The respondent refers to a number of first instance decisions that specifically deal with the question of accrued jurisdiction with respect to tort claims for assault. It is appropriate to consider each of the decisions on this difficult issue.
In Yen & Yen (2010) 42 Fam LR 691, Cronin J found that an assault claim was not within the accrued jurisdiction of the Court, concluding that:
52.… It is stretching the language to say that an assault in a marriage that may or may not give rise to damages is a significant factor in a property case where there is no claim that contribution has been made more difficult because of conduct or because the conduct adversely affects future health or earning capacity.
As the respondent rightly argues, the facts of the present case are different from the facts in Yen in that the respondent does rely upon the conduct of the applicant to found a claim that her contributions were made more difficult, and that such conduct is alleged to be so extensive that it is prima facie relevant in the property settlement proceedings based upon the principles set out in Kennon’s case. However, it also seems unlikely that the respondent will be able to peruse more than the most recent allegation as the balance of the claims are likely to be statute bared.
In Crampton & Robinson [2013] FamCA 65, the husband sought damages in tort as a result of the wife pushing him from a hotel window. Cleary J concluded that:
53.There is clearly a connection between the two controversies, being the two parties involved in both of them, but I do not consider that they arise out of the same substratum of facts, nor that they are unable to be severed from each other. If I am wrong about that, I would exercise the discretion against taking up accrued jurisdiction in any event for the following reasons.
54.The State proceedings are a claim for damages arising from a particular incident in European Country A on one day. It seems likely that the law of European Country A would be the applicable law, although that aspect may be arguable. It seems likely that third parties such as police and others present in the hotel at the relevant time could be parties to the proceedings. Evidence from the police and perhaps from the hospital where the husband was a patient may be called. The wife's niece and the parties' young son could be witnesses in that dispute. There would be a question of the quantum of damages in the event that the tort was made out.
55.There is the possibility of third party entities being joined, for instance, insurers and any national schemes which may exist in European County A. I do not accept the argument that this action is merely the equivalent of the consideration during property proceedings of the impact of family violence by one party against another.
56.The District Court action is a discrete matter, the events of just one day, more properly dealt with in the District Court, or perhaps the Supreme Court, for a determination of whether or not the particular conduct of the parties gives rise to the tort in question and if it is made out, how that should be compensated by damages of different kinds.
57.It is an important consideration that it would be entirely inappropriate for the children, that is the parties' son and the wife's niece, to be exposed to the circumstances of the parties' matrimonial dispute in the context of the civil claim being heard here. I also take into account the extent to which the proceedings would be lengthened by the hearing of the two proceedings together with the real possibility that:
a.Having come to the determination of a civil claim, one or other of the parties might well ask me to disqualify myself from then hearing the matrimonial property proceedings.
b.That the husband would be in a position of perhaps being advised not to give evidence in circumstances where there is a prospect of some charges being re-tried and also the prospect of an appeal by the husband against his convictions and sentencing.
58.Further, the husband has the onus in the civil proceedings in the District Court. The onus could be lost if the matters were heard together. In the usual way, each party in property proceedings in this Court is effectively an applicant for the division of property. I do not consider that there is accrued jurisdiction on this particular set of facts.
…
60.Whilst it was understandable that the husband might seek to contain costs by having both matters heard in the same court, I do not consider that this end would be met especially in circumstances where this Court could be asked to determine the law of a foreign jurisdiction, namely European Country A. Accordingly I dismiss the application of the husband.
The respondent argues that Crampton & Robinson is also distinguishable as it involved a single event, and not a course of conduct. As the reasons quoted above make clear, the findings of Clearly J were not based upon the simple fact that the alleged defenestration was a single event.
In Tullo & Tullo [2016] FamCA 716, Loughan J considered a case where the wife sought to join claims for damages in tort with respect to two assaults that occurred in 1992 and 1998. Loughlan J said that:
9.The proceedings in the District Court raise issues about a duty of care, raise issues about the particular circumstances of the incidents alleged and later, as has been submitted on behalf of the wife, issues such as exemplary damages that raise the question of public interest in deterring certain behaviours. Those are not matters that would fall to be determined in the way in which they would be determined in the District Court, for the purposes of proceedings under s 79 Family Law Act 1975 (Cth) ("the Act"). Section 79 gives this Court power to make orders that are just and equitable to change interests in property on the breakdown of a marriage. That task is achieved through a number of steps or tasks in relation to the matters identified by s 79. Overall it has to be just and equitable to make a property division. The orders themselves have to be just and equitable.
10.In making orders the Court has to take into account contributions of various sorts and then a number of other matters that are referred to in s 79(4)(e) to (g) inclusive. There is a decision of Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757, which allows that in some cases it can be relevant in the bare task of identifying appropriate changes of property interests to take into account the conduct of the parties. It is made clear that that is not the general business of the work of s 79. In some cases it is relevant. It is certainly not the same task that is undertaken in a court dealing with the tort of assault. They are different remedies for a different purpose. In this jurisdiction those issues may be relevant where the conduct of a party may have made it impracticable for the other party to make a contribution or may have made the making of a contribution more arduous.
11.As I have been informed briefly today, the issue is only peripheral to the wife's case. She will argue that the husband made virtually no contribution. Her case is that she has made all but a tiny fraction of the contributions that were made. In that context there is little or no room for a Kennon argument.
The respondent argues that the decision of Loughlan J should be read as ultimately founded upon the finding that the assaults were not such, of themselves, to be sufficient to give rise to a Kennon style claim in those proceedings, and thus did not have the necessary connection to the family law proceedings.
Properly understood, a Kennon claim is not a claim for damages or compensation for assaults in the sense that a claim for an intentional tort of assault or even the tort of negligence operate. In tortious claims, damages are awarded for the personal loss and suffering of the victim as a consequence of the wrongful conduct.
The principle in Kennon looks to the nature of the contributions made by a party in order to assess the weight to be attached to those contributions. That is, in some circumstances a party's contributions may well be significantly more arduous, which is important in assessing the relative contributions of the parties. The principle at the heart of the Kennon case approach is not based upon the number of events, but rather whether the contributions of a party are made significantly more arduous. Whilst the more common examples of Kennon adjustments appear in cases where there has been regular incidents of family violence, it is the impact of the events and not their number that is relevant. Thus, whilst the number of events will usually be an important evidentiary factor, it is possible that even a single assault could so impact upon a person’s functioning as to show that its consequences have made the contributions of that party significantly more arduous.
Contributions assessments pursuant to s 79 (or s 90SM) of the Act do not involve "quantification" of the personal injuries, in the sense contemplated in tort proceedings: see Keating & Keating (2019) FLC 93-894 at 78,886. The approach in the Kennon style cases is to take account of the nature of the contributions made by a party, which are necessarily affected by the circumstances in which those contributions are made. This is consistent with the views of Nygh J in Fisher and Fisher (1990) FLC 92-127 at 77,847 where his Honour said that:
… it is the existence of the respective contributions and needs which is the primary investigation and not the causes thereof, even though it may be necessary in some cases to relate them historically.
As the Full Court explained in Loncar & Loncar (2020) FLC 94–054 at 80,857:
In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party.
The difficult issues that arise in this case were identified nearly 40 years ago by Gee J in Saba and Saba (1984) FLC 91–579, where his Honour said at 79,675–79,676:
The claim for assault on the other hand, focuses upon an event at the tail end of cohabitation, the event which caused the separation of the parties and cohabitation to cease. It requires consideration of facts and elements foreign to the substantial federal claim. Let me indicate matters which could conceivably arise.
(a) Was the assault justifiable? Was it in self-defence?
(b) Was more force used by way of self-defence than reasonably necessary?
(c) Can the wife, in accordance with McHale v Watson [1964] HCA 64; (1964) 111 CLR 384, prove that in pouring the oil over the husband she acted without intent to harm him and without negligence?
Then I come to the question of damages. One considers, inter alia, the foreseeable consequences of the occasioning of the actual bodily harm, one considers the loss of capacity to earn, pain and suffering, past, present and future, and the question, not only of exemplary damages (and therefore any conduct of the wife in acting in contumelious disregard for the husband's rights) but also, whether there was any conduct of the husband, such as throwing coffee and beer, to which he admits, which might mitigate such claim.
As “a matter of impression and of practical judgment” I have come to the conclusion that the claim of damages for assault is “a completely disparate claim constituting a different proceeding”, and, “a distinct and separate justiciable controversy from the one that attracts federal jurisdiction”.
In any event, even if I had jurisdiction, I would, as a matter of discretion, decline to exercise it not only for the above reasons taken together, but also for the following additional reasons taken together:
(a) In an application for property settlement, the assets of the parties are of prime importance and no order is made against a party with which they may have difficulty in complying. In a claim for damages, the Court does not take into account the means of the defendant necessary to satisfy any award made, and in this regard I agree with the remarks of Bell J. in Hack and Hack (1980) FLC 90-886 at p. 75,595.
(b) The absence of pleadings in this Court, an alleged advantage in “matrimonial causes”, renders it difficult to define the issues in a claim for damage precisely which is a difficulty not shared by other courts which deal with these matters.
(c) The general difficulty of seeing how the proceeding would go forward in the midst of a general sec. 79 claim by the parties to a marriage, a factor referred to by Fogarty J. in Prince and Prince (1984) FLC 91-501, at p. 79,085.
In this context, it must also be noted that much conduct which falls within the definition of “family violence” (as the term is defined in s 4AB of the Family Law Act 1975 (Cth)) is not conduct that would necessarily found a common law tort. Just as s 79 and s 90SM of the Act highlight the inadequacy of common law property rules when considering entitlements of spouses, so too the definition of family violence highlights that the law of torts is insufficiently fine grained in the context of intimate relationships.
In cases involving intentional torts between spouses there will often be a common factual element – whether a particular application of force (or threat thereof) took place. However, many of the circumstances relevant to a tort claim will not need to be considered when making a contributions assessment under s 79 of the Act. The precision with which any individual action is proved differs as the action complained of is an essential element of a tort claim, but only a surrounding circumstances bearing upon the essential question of assessing contributions under the Act. Even the concept of consent may differ between traditional common law tort rules and the principles applicable when considering family violence in the context of intimate relationships for the purpose of contributions assessments. The questions of causation of damages and assessment of damages at common law are not necessary to address in assessments of contribution under s 79 or s 90SM.
Ultimately, I accept that there is much to be said for the arguments both in favour of and against the proposition that tort claims between spouses come within the appropriate ambit of accrued jurisdiction.
The respondent attempted to develop her argument by relying upon the Canadian decision of Ahluwalia v Ahluwalia [2022] ONSC 1303. The decision recounts the general Canadian approach of declining to hear tort and family law claims in the one proceeding before determining first, that there is a tort of family violence in the common law of Canada, and secondly that it was appropriate to hear and determine that tort claim with the family law proceedings (the potential limitation of actions problem is overcome in Canada by the effect of s 16(1) of the Limitations Act 2002 (Ontario) which removes the limitation period where the claimant was in an intimate relationship with other party).
Importantly, the Ontario Superior Court of Justice has original jurisdiction both in family law and tort, and thus the case involved no question of accrued (or pendant) jurisdiction, although the decision demonstrates that even within one court with jurisdiction in both areas of law there is generally a view that tort claims should be heard separately from family law claims.
Most significantly, the decision recognises a tort of family violence in Canada, whilst no such tort has been recognised in Australia. It is too early to determine whether this single judge decision concerning torts will be followed by other courts (at present it has only been cited in passing by the Court of Québec in a sentencing decision: see R v BF [2022] QCCQ 1719). Whilst the decision is thought provoking, it is of little assistance in determining the present application as the respondent does not argue that there is a tort of family violence in the common law of Australia and the question of accrued jurisdiction is not addressed. The case does, however, demonstrate that in Canada there is a reluctance to have tort claims for personal injuries determined together with family law proceedings due to the very different considerations that are necessary in the two types of claim. Presumably, in looking for support in the jurisprudence of the Americas, the respondent would also seek to rely upon the reasoning in Giovine v Giovine (1995) 663 A. 2d 109 (Sup Ct of NJ) to overcome the difficulties presented by the three year limitation period in s 50C and s 50D of the Limitation Act 1969 (NSW). However, neither of these authorities, nor the reasoning they adopt, represent the law as it currently stands in Australia.
The significance of the question that this application raises cannot be under estimated. Hearing this application at first instance, I should not depart from previous single judge decisions unless I am satisfied that these decisions are clearly or plainly wrong: see BHP Billiton Iron Ore v The National Competition Council (2007) 162 FCR 234 at [88]. I am not persuaded that the approach adopted in Saba, Yen, Crampton & Robinson, and Tullo is clearly or plainly wrong. If this line of authority is to be challenged, it is appropriately a matter for the Full Court. This leads to the conclusion that the respondent’s tort claims are beyond the appropriate ambit of the exercise of accrued jurisdiction by this Court when exercising its jurisdiction to determine property settlement claims in this matter.
As a result I dismiss the respondent’s application to join her common law claims in tort for damages for personal injuries to the present de facto property settlement proceedings.
It is appropriate in the circumstances of this particular case to reserve the question of costs of this application to the trial judge who will have detailed evidence of the parties’ financial circumstances.
The respondent also sought orders to either adjourn these proceedings, or for asset perseveration (in the nature of Mareva injunctions) in the event that the application to join her tort claim was refused. At this stage such orders are premature. If the respondent brings proceedings in the state courts with respect to her common law claims those matters may be the subject of application in the appropriate court, if the parties are unable to agree upon suitable interlocutory orders.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 12 August 2022
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