In a recent case of Britt [2017] FamCAFC 27 (27 February 2017), the Full Court (May, Aldridge & Cronin JJ) heard Ms Britt’s appeal against Judge Terry’s order by which the asset pool of $2.2 million was divided as to 44.95 per cent to the wife and 55.05 per cent to the husband. In making this decision the Court considered the husband’s pre-cohabitation ownership of a farm.
The wife relied on the case of Kennon [1997] FamCA 27 where the primary judge failed to take into account the wife’s allegations of family violence and her argument 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 stated that 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 evidence consisted of conclusions that was ‘just too general’ and lacked particularity. Her Honour was critical of adjectives such as ‘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 how often the family violence occurred.
The wife stated in her affidavit that was rejected that the husband dominated her throughout the relationship; that he had been violent and aggressive towards her; that he regularly forced her to have sex with him; he regularly left her alone on the property for days at a time; and that she would intervene when he attempted to hurt the children physically.
Pursuant to s 55 of the Evidence Act, a trial judge cannot take the credibility of a witness into account when determining the admissibility of evidence. Any issue of credit is taken into account when considering the weight of the evidence.
In determining the admissibility of the evidence, the primary judge was obliged to consider whether the evidence could rationally effect the assessment of the existence of family violence, which led to the appellant’s contributions becoming more onerous. The primary judge also stated that it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence.
The proposed evidence went to the relationship between the parties. In proceedings under the Family Law Act, evidence of relationships and the ‘parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion.
There is nothing in the Evidence Act that prevents evidence being given as a conclusion. The test remains that posed by s 55 and s 56. Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible.
The Full Court stated that the evidence excluded by the primary judge should not have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion.
A second difficulty is that the evidence is irrelevant because that fact or proposition contended for cannot be established must be undertaken cautiously and carefully. Pursuant to the Family Law Rules 2004 (Cth), the evidence should only be rejected if there is no reasonable likelihood of the fact or proposition being established.
In the present case, the primary judge admitted some of the appellant’s evidence of the respondent’s behaviour. That can only have occurred because the behaviour was a relevant issue. Thus, any evidence capable of bearing upon the determination of that issue was relevant and, therefore, admissible
The Full Court stated that the statements made by the primary judge that the evidence was too general and was a conclusion, confuse admissibility with weight. Whist the evidence could have been more specific any generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not.
Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.
The Full Court was not satisfied that the excluded evidence would have made no difference to the outcome if it had been admitted.