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Effect of Family Violence in Property Proceedings

Britt & Britt [2017] Fam CAFC 27 revisited

Since being handed down on 27 February 2017, in the Full Court of the Family Court, the decision of Britt & Britt has had the potential to significantly impact the way that evidence in property matters, relating to family violence, is treated and therefore, how it’s admitted in evidence.

In the case, the parties had a relationship that spanned a period of approximately 30 years. The parties started living together in or about 1980 when the wife was around 15 years old and the husband was around 31 years old. The parties married in 1988 and separated on a final basis in November, 2011. During the relationship, the parties had four children who were adults by the time the family law proceedings started.

For the majority of their relationship, the parties were farmers and worked on a property which was owned by the husband prior to the relationship. Towards the end of the marriage, it was discovered that the property was located on a valuable coal seam deposit and it was sold in 2009 for approximately $3.4million. $1.9million of the sale proceeds was used to purchase another property which the couple lived in until their separation.

Following separation, an application was made to the Family Court for property proceedings to commence. At first instance, the asset pool, valued at approximately $2.2 million, was divided in the proportions of 44.95% to the wife and 55.05% to the husband. The husband’s initial contribution of the farm led to him being given an adjustment of 0.05% in his favour.

Other Section 75(2) factors deemed relevant and persuasive by Her Honour included the length of the marriage and the fact that the wife left school at a young age (before completing year 10) to live with the husband, rear the children and work on the farm. Further, the husband’s limitations in his skill set in terms of his employment as a farmer for the majority of the relationship was also relevant, and it was considered that there was a realistic possibility of the wife obtaining work in the future, compared with the husband.

The wife, in initial proceedings, raised the case of Kennon v Kennon [1997] Fam CA27 – namely, that the husband was violent towards her throughout the relationship and as such, her contributions towards the family’s property and wealth were made more arduous.

The wife’s evidence of family violence and subsequent impact of that violence on her contributions were rejected in part as the evidence was deemed to general and lacked specificity.

Her Honour was particularly critical of the wife’s use of adjectives such as “regularly,” “routinely,” “repeatedly” and “often” as they didn’t provide sufficient particulars of how often the violence occurred. Therefore, the wife’s Kennon argument wasn’t accepted at first instance, because much of the evidence was objected to and Her Honour rejected the evidence of the wife that had been admitted.

The wife appealed the judgment on 14 grounds.

In regarding whether the wife’s evidence of family violence was properly rejected, the Full Court noted that an important consideration is that

“the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence.”

The Court also found that

“the proposed evidence went to the relationship between the parties.  In proceedings under the Family Law Act, evidence of relationship and the parties’ contributions to their property is commonly given in general terms, and in terms which are redolent of being a conclusion. Affidavits would be excessively long otherwise…there is nothing in the Evidence Act that prevents evidence being given as a conclusion (save as for expert opinion expressed as conclusions which can only be given by expert witnesses). The test remains that posed by section 55 and section 56. Thus, a Trial Judge is required to consider whether the proposed evidence has sufficient, even slight probative value to make it admissible.  If the nature of the conclusion is such that it has not probative value, the evidence should be rejected.”

The Full Court ultimately found that the exclusion of wife’s evidence may have affected the outcome and should have been admitted. The matter was therefore remitted for re-hearing.

This decision has the potential to significantly impact day-to-day practice of solicitors in family law matters. Allegations of family violence don’t have a “higher standard for the admissibility of evidence” however, the effect of those matters being accepted into evidence, and potentially the weight attached to them, may have a visible impact on the ultimate result in proceedings.

That’s not to say that such allegations should be viewed with a higher standard, but it may be difficult in practice to argue whether evidence should not be given weight once it is admitted, and if admitted, in terms that make it near impossible to respond to.

As a White Ribbon Accredited Workplace, Coleman Greig Lawyers takes a zero-tolerance stance with regard to any and all forms of violence against women.  If you are concerned that you may be a victim of domestic violence, we urge you to seek help via the White Ribbon Australia website.

For more information on this article, or to speak with a family lawyer regarding separation and property disputes – please don’t hesitate to get in touch with Coleman Greig Lawyers Family Law team.


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