Insights and inspiration
14 March 2016
In December last year a case called Welch and Abney (No 2) was decided. The "(No2)" does not mean that this is the second set of people with the same name who have been in the Family Court. It means that this is the second decision in the court history of these two people. That is unfortunate on its own. By the way, please remember that these cases are anonymised so that the husband and wife in this case were not called Welch or Abney (or no 2).
The aspects of this decision that we ought to discuss is its treatment of the allegations by the wife that she was subjected to violence. In terms of financial cases, property settlement or spouse maintenance, why would that ever become an issue? Surely in this no fault era that we have been in since 1976, the question of violence is immaterial?
Well, yes and no. In 1997 the Family Court decided a case called Kennon. This laid down a principle that has guided Family Court judges ever since. That principle can be summarised as follows:
- There has to be a course of violent conduct by one party towards the other;
- It has to be shown to have had a significant adverse impact on the victim's contribution to the marriage or, in other words, to have made his or her contributions significantly harder than they ought to have been;
- Such a case would be exceptional;
- The conduct should not be at the time of marriage breakdown alone.
In this case the wife gave evidence in writing about the controlling and abusive behaviour of her husband. The husband's lawyer objected to the judge that this evidence should be excluded because it was irrelevant. The judge's reasoning was interesting. What he said was that if you take her evidence at its highest, that is admit every sentence to be true, does it give rise to facts that meet the test in the Kennon case? If it doesn't, it is not relevant to the case at all. If it does, then it is allowed in, as relevant, but of course subject to any other evidence and cross examination.
However what the judge then did seems unusual, if not to say somewhat contradictory. Having said that he was taking the wife's case at its highest, that is on its own terms, he then used as part of the reasons for rejecting the evidence the evidence that she gave in cross examination that a year before the parties separated she was happily married, she said "we had the perfect marriage until I stopped doing what I was told", and she told doctors that her husband was very understanding, supportive, and that she admired him. This may seem to some readers like weighing the evidence one against the other rather than taking her case at its highest.
The judge concluded that she did not meet the test and that whatever the conduct was, except for one incident that took place around about the time of separation and was therefore excluded anyway, it did not have an impact upon her ability to make contributions throughout the marriage. The evidence was excluded.
Then there was a curious comment from the judge at the end of this consideration. There was no doubt that the wife suffered serious psychological problems. As the judge said, "there was an abundance of evidence about the wife's impaired state of emotional health". But as the judge also said, "if her psychological ill health made it more difficult for her to contribute in the parties' household, the difficulty was only tangentially (emphasis added) related to the husband's conduct". I accept the judge was quite right to point to the absence of any medical evidence linking the wife's psychological ill health to the husband's conduct but if there was a tangential relationship why was that insufficient?
I also wonder whether the principles laid down in the Kennon case need review. The concept of family violence has been elevated to a major concern by amendments to the Family Law Act. We are more aware than ever of the prevalence of domestic violence and the silence and secrecy that surrounds it. The phrase used by the court in Kennon, "a course (emphasis added) of violent conduct" is often taken to imply in practice that a party needs to be beaten as regularly and as frequently as the dinner gong in order to qualify. Surely it must be right that major impact can be felt from one or two significant and isolated incidents that cast a shadow over the entirety of the relationship. That is just one aspect that may need some further consideration.
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