Domestic Violence’s Influence on the “Financial Consequences” of Property Settlements Post Britt & Britt (2017)

Domestic or family violence is an issue of considerable concern to family lawyers. Family violence can impact in a number of ways, for example, in custody proceedings. It can encompass various forms of abusive behaviour including physical, sexual, emotional, social and economic.

The case of Britt & Britt (2017) concerned the “financial consequences” of domestic violence in a matrimonial property settlement matter specifically with regard to the admissibility of evidence of family violence. The legal principles concerned are the relevance of such violence in the context of s.75(2) of the Family Law Act 1975.

In this case, the Full Court of the Family Court allowed an appeal where the trial judge had excluded evidence in relation to a wife’s allegations of family violence. The Full Court held that the trial judge had erred when considering the admissibility of the evidence and the weight to be placed upon it. 

The relationship in question started in 1980 when the future wife was only 15. They had four children who, by now, were adults. For most of the marriage they farmed but after 30 years they separated and application was made to the Family Court for property proceedings. The husband’s initial contribution of the farm meant he was given a small adjustment in his favour. In addition, other s.75(2) factors considered persuasive included the length of the marriage, her age when the relationship commenced, the rearing of the children and helping on the farm. It was also thought the wife had a more realistic possibility of work compared to the husband given his age (16 years older) and his limited abilities.

Key Issues

Proceedings for matrimonial property settlement in the Family Court must have regard to matters contained in s.75(2), which are essentially concerned with the current and future financial circumstances of the parties. Domestic violence may be taken into account to the extent it has financial consequences relevant to s.75(2). Just because one spouse has acted abusively is not of itself relevant but the consequences may be taken into account where they impact on the financial circumstances of the victim bringing them within the scope of s.75(2). This financial consequence approach to domestic violence was seen in the leading authority Kennon v Kennon (1997).

In the initial proceedings the wife raised the case of Kennon i.e. the husband was violent towards her throughout the marriage and accordingly her contributions to the family’s assets were problematic. However, the wife’s evidence of violence and its impact were not accepted. The trial judge held that the wife’s evidence was not specific enough and so inadmissible. Words used such as “regularly”, “often”, “routinely” and “repeatedly” made it unclear if the alleged violence had happened “once a week or once a decade”. The evidence was also felt to be a conclusion.

On appeal, the Full Court disagreed with the trial judge and held that as the evidence had probative value it was admissible. It said “The statements by the primary judge, to the effect that the evidence was too general and was a conclusion, confuses admissibility with weight”. The “generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not”.

The Full Court acknowledged that 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 through that relationship, let alone specific dates”.

With regard to the family violence and whether it had been properly rejected, the Full Court considered 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”. Moreover,

“the proposed evidence went to the relationship between the parties. In proceedings under the Family Law Act, evidence of the 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) … 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 no probative value, the evidence should be rejected”.

The Full Court found that the exclusion of the wife’s evidence of violence may have affected the outcome and should have been admitted so the matter was to be re-heard.

What Does it Mean?

In Britt & Britt, the Full Court of the Family Court allowed an appeal where the trial judge had decided to exclude evidence in relation to a wife’s allegations of family violence. It considered that the trial judge erred while considering the admissibility of the evidence and the weight that should be placed on that evidence.

The decision has the potential to impact on the way domestic violence is admitted in evidence. And the effect of these matters being accepted into evidence, along with the weight attached to them, will potentially have a discernible impact on the result of proceedings.

Where domestic violence has had an impact on the matters for consideration in s.75(2,) this must be taken into account in the exercise of the Court’s discretion in making property settlement orders.

Contact our Family Lawyers Sydney, NSW

Szabo & Associates, Solicitors, have many years’ experience and the know how to help clients who find themselves in difficult situations involving domestic violence or a variety of other family issues. If you need to speak to experienced and empathetic lawyers we can assist you. Contact us on (02) 9281-5088 to speak to our family and divorce lawyers or fill in the online contact form.