Before the Court for determination is a Notice of Motion filed on 11 August 2023 by the plaintiff seeking a vacation of the final hearing to commence in this Court on 30 October 2023. The Judicial Registrar of this Court listed the matter for hearing commencing on 30 October 2023 on 1 March 2023. The application to vacate is supported by an affidavit of Gregory Miller dated 9 August 2023. The parties seek a vacation of the hearing date by consent. Final hearings are not vacated by consent. The Court must be satisfied that there is a good reason to vacate a final hearing date.
The background to the matter is that the parties were married. The plaintiff wife alleges that in the course of the marriage, she was subject to intimidation, bullying and physical violence constituting the torts of trespass to the person, assault and battery. Damages are sought by the plaintiff, including for consequential alleged psychiatric injuries. The claims are denied by the defendant.
The affidavit of Mr Miller establishes that the parties are also parties to proceedings in the Federal Circuit and Family Court of Australia ("Family Court"), being proceedings for property adjustment under s 79 of the Family Court Act 1975 (Cth). These proceedings are set down for hearing in the Family Court in the period 25 to 27 September 2023.
S v S [2023] NSWDC 345 | Case summary | Zoe
It is submitted that the allegations of domestic violence made in the District Court proceedings will also be ventilated in the Family Court proceedings and it will be necessary for the Family Court to make findings of fact as to whether the alleged domestic violence occurred as alleged.
Reference is made by the plaintiff to the power of the Family Court to adjust the property entitlements of the parties under s 79 of the Family Court Act in accordance with the principles enunciated in Kennon v Kennon [1997] FamCA 227; (1997) 22 FamLR 1. In that case, the majority of the Full Court of the Family Court of Australia endorsed the approach taken by Coleman J in In The Marriage of Marsh (1993) 17FamLR 289 where a common law claim for assault had been cross-vested to the Family Court. His Honour held that an award of damages for assault should not be taken into account as a factor under s 75(2)(o) of the Family Law Act to reduce what would otherwise be the wife's entitlement to orders for property settlement.
In Kennon, the Full Court of the Family Court increased substantially the amount ordered to be payable to the wife by way of property settlement whilst leaving in place a judgment for the wife against the husband of $43,000 in damages for assault.
This approach has been recognised in other cases in state courts including in the Victorian Court of Appeal: see Giller v Procopets (No 2) [2008] VSCA 236; (2008) 24 VR 1.
In Rock v Henderson [2021] NSWCA 155, the New South Wales Court of Appeal considered a pleading appeal in a case between former spouses. There, Brereton JA (with whom Wright J and Bell P agreed) considered in detail the approach to be taken. Brereton JA stated at paragraphs 38 to 42 in summary as follows:
1. On the established authorities, there was nothing inappropriate about one spouse bringing a claim for damages in tort against the other in parallel with proceedings for property adjustment and receiving a judgment on that claim to be satisfied out of the other's entitlement awarded under s 79. It also did not depend on who the applicant was in the property adjustment proceedings;
2. In Kennon, the majority referred to difficulties in claims for damages for domestic violence in the context of cross-vested proceedings in the Family Court and clearly accepted that it was open to bring the damages claim concurrently in a state court;
3. If the two claims are adjudicated in separate hearings, the majority in Kennon said there would be little basis for the two hearings to take place in the Family Court, and the appropriate course would be to transfer the damages claim to a state court because of the potential for inconsistent findings of fact and credit and there would likely be an overlap in relevance and evidence and issues of estoppel may arise;
4. However, the Family Court would have jurisdiction to hear a claim for common law damages in its accrued jurisdiction;
5. A party could not be criticised for bringing the damages claim separately in a state court and it could not conceivably be an abuse of process to do so.
In Giunta v Giunta (No 3) [2021] FamCA 272, McClelland J in the Family Court considered a property adjustment claim under s 79 of the Family Law Act. The wife also sought factual findings in relation to alleged domestic violence which she submitted were relevant to her ability to contribute to the family for the purposes of property adjustment.
In a very lengthy judgment of over 600 paragraphs, McClelland J made findings in relation to acts of alleged domestic violence and conduct which, in his view, applying Kennon, warranted an adjustment to the property amount in a percentage form which the husband and wife were otherwise entitled to.
The decision in Giunta (No 3) was recently considered by his Honour Judge Levy SC of this Court in Giunta v Giunta [2023] NSWDC 202. An application was made by the former husband to dismiss the proceedings because of the factual findings made by McClelland J in the Family Court which I have referred to. His Honour rejected the application primarily because the process in the approach in the Family Court and the District Court was to look at different issues while accepting, in paragraph 47, that the Family Court had an accrued jurisdiction to consider the claims.
Coming back to the facts in the present case, these proceedings obviously have not been transferred to the Federal Circuit and Family Court of Australia, nor have similar proceedings, according to the evidence, been commenced in that Court relying on the accrued jurisdiction of the Court.
Although a Family Court judge may make factual findings, they must be of a sufficiently clear, detailed and precise nature in order potentially to give rise to an issue estoppel in subsequent proceedings heard in this Court.
To the extent that the parties in the foreshadowed Family Court proceedings do not seek precise factual findings and the Court makes them, there will potentially arise difficult issues for any subsequent judge hearing the intentional tort matters in this Court which may lengthen the proceedings and involve an unnecessarily detailed and comprehensive analysis of any judgment in the Family Court. Of course, this Court cannot determine the approach of a Judge in that Court, and nothing in these reasons should be interpreted as seeking to do so, or seeking to influence the Judge's determination as he or she thinks fit of the foreshadowed s 79 proceedings.
As indicated by Brereton JA in Rock, the matters in the two sets of proceedings involve different legal issues and different questions although some factual issues in a Kennon adjustment may be in common.
Looking at the matter overall:
1. I accept that the Family Court will consider some factual issues involved in these proceedings in the foreshadowed hearing if a Kennon adjustment is sought to be made;
2. Any findings of fact may cut across, if a hearing continues in this Court, any hearing and findings in the Family Court;
3. There is thus the real possibility of inconsistent findings; and
4. Having regard to the complex matters that undoubtedly will need to be considered in the Family Court, this is likely to take a Judge some time to hear the matter and to hand down reasons thus giving rise to the potential for a District Court hearing on the intentional tort claims to be determined and reasons to be handed down whilst the Family Court decision is reserved.
In all of those circumstances, in my view, I agree that a vacation of the hearing date in this Court must be made in the interests of justice.
The orders I propose are as follows. In relation to the Notice of Motion filed 11 August 2023:
1. The hearing commencing 30 October 2023 is vacated;
2. The costs of the Notice of Motion and the costs thrown away by reason of the vacation of the hearing date are to be costs in the cause;
3. The matter is listed for directions on 4 December 2023 before the List Judge at 9.30am.
Note: The parties are married and separated. There is to be a property adjustment hearing in the Federal Circuit and Family Court of Australia commencing on 25 September 2023. Physical batteries and assaults are alleged. These will arise for consideration in the Federal Circuit and Family Court of Australia and there may be risks of inconsistent findings.
[His Honour heard from the parties.]
I formally make the orders and the notation which I have indicated.
[3]
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Decision last updated: 31 August 2023