Kennon revisted – WELCH & ABNEY (NO 2) [2015] FamCA 1116

Kennon revisted – WELCH & ABNEY (NO 2) [2015] FamCA 1116

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1116.html

15. A substantial amount of time was spent at the commencement of the trial dealing with the parties’ respective objections, many of which were sustained.
16. One particular objection pressed by the husband related to a tranche of the wife’s first affidavit headed “Husband’s Controlling and Abusive behaviour”.^[2] The wife conceded she adduced the evidence for two purposes: first, to demonstrate the nature of the husband’s behaviour and the manner in which it allegedly affected her contributions (see Marriage of Kennon [1997] FamCA 27; (1997) 22 Fam LR 1), and second, the way in which the husband’s control of the household financial affairs allegedly caused the parties’ financial loss (see Marriage of Kowaliw (1981) FLC 91-092; Browne & Green [1999] FamCA 1483; (1999) FLC 92-873 at [40]– [41]). The husband’s objection was sustained and the evidence was rejected for the reasons which follow.
17. As to the second purpose, not a single sentence within the pages of evidence that drew objection related to the husband’s alleged financial mismanagement. Relevantly, the evidence directed itself to the husband’s overall control of matrimonial finances (which was not a controversial issue anyway) so the evidence could not prove what the wife wanted.
18. As to the first purpose, the evidence did not possess the probative value the wife inferentially asserted. At worst the evidence was irrelevant, but even at best, its probative value was substantially outweighed by the danger that its admission would invite cross-examination and induce debate that would unduly waste time (s 135(c) Evidence Act 1995 (Cth)). To determine the admissibility of the evidence-in-chief it was necessary to contemplate the prospective validity of the Kennon argument on the strength of the wife’s own evidence. If, when accepted at its highest, it could not support a Kennon submission then it was futile to receive it (see S & S [2003] FamCA 905 at [37]– [40]).
19. The relative rarity of a Kennon case should not be overlooked, for otherwise many property settlement cases would descend into unnecessarily bitter contests over the attribution of fault for marital discord and breakdown and divert attention from the statutory formulation of s 79 of the Act. In Kennon the majority stated (at 24):

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that…
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past…
However, in our view, s 79 should encompass the exceptional cases which we described above…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass…conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

20. This case did not fall within the exceptional category identified by the Full Court. Remembering the parties cohabited from 1995 until 2011, other evidence adduced in these proceedings belied the wife’s intended Kennon submission. For example:
    <li “=””>(a) In November 2009, after some 14 years of cohabitation and barely a year before final separation, the wife solemnly and sincerely declared in a statutory declaration prepared for use in other litigation that she was “happily married”.

    ^[3]

    She said in cross-examination that her statement in the statutory declaration was truthful at the time she made it.

<li “=””>(b) She also later said in cross-examination “we had the perfect marriage until I stopped doing what I was told”, which she allegedly did in 2011, proximate to their separation.<li “=””>(c) She also told her doctors throughout 2009, 2010, and 2011 of her admiration for the husband, telling them he was “very understanding” and “supportive” and “there had been no major difficulties in their relationship”.

^[4]

The wife tried to resile from such approbation in cross-examination, saying she would not have criticised the husband to them because she knew he would later read their reports, but that merely implied she deliberately gave false accounts to her own doctors about the husband’s qualities. She may be prepared to falsify her accounts when it suits her, but it is more likely her compliments about the husband to the doctors were accurate.
21. Self-evidently, the wife’s expressions of satisfaction with the marriage up until close to final separation are antithetical to any complaint now made about how her matrimonial contributions were rendered more arduous by reason of the husband’s “controlling and abusive behaviour”.
22. The wife did adduce evidence of one incident of violence between them, but that occurred in May 2011, at a time when she regarded the marriage as finished and the husband was reluctant to acknowledge the breakdown.^[5] The charges brought against the husband were dismissed without penalty because of his impaired mental state.^[6] As the husband correctly observed,^[7] that conflict occurred when their marriage was breaking down, which is conduct the Full Court in Kennon expressly exempted from the principles it espoused.
23. Although there was an abundance of evidence about the wife’s impaired state of emotional health from 2008 onwards, there was no expert evidence to causally link such ill health to any conduct of the husband. The absence of such a causal link is critical, if not fatal (see Kennon at 18; S & S at [41]-[48]). On the contrary, all of the evidence attributed her ill health to problems she encountered in her workplace, which was why she was retired on medical grounds in February 2011 and why she was able to later successfully sustain workers compensation and common law damages claims against her former employer. Any nexus between the husband’s misconduct and the wife’s matrimonial contributions being rendered qualitatively greater would be purely speculative, not validly inferred.
24. In retrospect, the wife’s opinion the husband’s behaviour “exacerbated [her] psychological condition” may be honestly held,^[8] but that does not make it objectively true. In any event, significantly, she only thinks the husband’s conduct “exacerbated” her condition, not that it was the principal cause. On her own evidence, if her psychological ill-health made it more difficult for her to contribute in the parties’ household, the difficulty was only tangentially related to the husband’s conduct.”