Family law: June 2017

Property – Kennon – wife’s evidence of family violence should not have been excluded for imprecision – weight to be given to it was another matter

In Britt [2017] FamCAFC 27 (27 February 2017) the Full Court (May, Aldridge & Cronin JJ) allowed the wife’s appeal against Judge Terry’s property order. Arguing Kennon [1997] FamCA 27, the wife’s case was that the trial judge failed properly to take into account her evidence that her contributions towards the property and welfare of the family were made more onerous by the husband’s physical violence and coercive and controlling behaviour.

The Full Court said (at [25]): ‘The primary judge … rejected parts of the appellant’s evidence as to family violence, essentially on the basis that the evidence was not in “proper form”. The primary judge considered that the evidence consisted of conclusions, was “just too general” and lacked particularity. In particular, her Honour was critical of … “regularly”, “routinely”, “repeatedly” and “often”. This was because these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to “whether [the family violence] happened once a week or once a decade”. Further, scattered throughout the transcript are statements … by the … judge … that the evidence was not relevant to the issues before the court.’

Excluded evidence comprised statements that the husband ‘dominated [her] throughout the relationship’; was ‘violent and aggressive’; ‘regularly forced her’ to have sex; ‘regularly left’ her ‘alone on the property for days at a time’ and would return intoxicated and ‘always aggressive and violent’; and that she ‘often intervened when he attempted to hurt the children physically usually with the result that’ she ‘was assaulted physically’.

The Full Court said (at [31]) that ‘evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value’ and (at [41]) that ‘none of the [excluded] evidence … should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion’. Remitting the case for re-hearing, the Court said (at [50]): ‘The statements made by the primary judge, to the effect that the evidence was too general and was a conclusion, confuse admissibility with weight. … [A]ny generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not.’