Wednesday, 24 March 2010

Family Court: wife can sue separately for damages for sexual assault

There has long been controversy about how the Family and Federal Magistrates Courts deal with the impact of assualts in the context of property settlements. Initially conduct was ignored, although Justice Bell in an early case stated that a wife could sue her husband for assault in separate civil proceedings.

Then for a brief period in the 90's with cross-vesting claims being allowed, [where the Family Court exercised the jurisdiction of State Supreme Courts] there were a number of claims in which wives (or children) sued for damages, as well as the property claim proceeding. For example in Marsh and Marsh, the wife was able to obtain her damages claim first, with this amount to be paid by the husband from his property settlement entitlement. In Re Q, the children were able to obtain damages for their being sexually assaulted by their step-father, at the same time as their mother, the wife obtained a property settlement.

In Kennon the wife sought and obtained damages in addition to property settlement, as well as the domestic violence resulting in a small adjustment for property settlement, the majority holding that the adjustment could occur in "exceptional circumstances", so as not to open the floodgates when domestic violence allegations would be common currency, and that it involved a "course of conduct" which made the wife's contributions over time more arduous.

Then in 1999, the game changed. The High Court ruled in Re Wakim that the cross-vesting regime was unconstitutional, so these damages claims were no longer brought in the Family Court, but instead reliance was had on the "more arduous" claim in Kennon.

Recently in the Family Court case of Yen and Yen, the husband was found guilty in separate criminal proceedingsof carrying out indecent acts to the wife:

The wife asserted that on or about 10 August 2006 she was indecently assaulted by the husband after he administered to her a sedative or drug designed to impair her consciousness, render her drowsy or asleep.


The allegation in the statement of claim is further that on or about 15 August 2006, the husband similarly assaulted the wife.

Further, it is alleged that between May 2006 and August 2006 on a number of occasions, the husband similarly assaulted the wife.

The defence of the husband may be summarised as follows. He says that save that he pleaded guilty to a charge of indecent assault, he does not admit the allegations set out in respect of the two incidents in August 2006. He otherwise denied the allegation that was generally particularised as taking place between May 2006 and August 2006.

In her claim, the wife seeks damages, aggravated damages and exemplary damages totally $100,000. 
The wife also sought property settlement in the Family Court. The parties had been together 25 or 26 years.
 
The husband sought that the damages claim also be brought in the Family Court under its accrued jurisdiction, arguing that there was one justiciable controversy. The husband argued that there was- that these events arose out of the marriage and therefore should be dealt with at the same time.
 
Justice Cronin rejected the husband's application, stating in effect that unlike Kennon there was no long period of allegation of abuse, but incidents late in the marriage:
 
This is a long marriage where this Court’s primary role under the Act is to determine entitlements based upon factors set out in s 79. Save in respect of s 75(2)(o) to which I have referred, and the issue of conduct being irrelevant to the diminished contribution of a party, issues of conduct giving rise to compensation and damages are not matters with which this Court would normally deal. Thus, an issue such as a series of assaults late in the marriage would not normally be relevant.


The claim by the wife in tort is not connected to any property proceedings and the evidentiary issues are of peripheral relevance to the property proceedings. To the extent that an order for damages against the husband might diminish his financial strength including particularly his retirement benefits, those matters can be contemplated under s 79(2).

The claim is also disparate from the property claim. It has different concepts involving issues of the duty of care. Whether that duty has been breached and what should be done to put the plaintiff in a position she should have been in but for the tort, is not a matter connected with the evidence of contribution and adjustments of the type set out in s 75(2).

In addition, in this case, there is an application for exemplary damages which might normally be awarded to reflect public disapprobation. Those matters are also unrelated to the determination of any entitlement based upon contribution....

One way of looking at this issue is whether the common facts or substratum of facts give rise to the issues in dispute. It is stretching the language to say that an assault in a marriage that may or may not give rise to damages is a significant factor in a property case where there is no claim that contribution has been made more difficult because of conduct or because the conduct adversely affects future health or earning capacity.


In my view, the nature and basis of the claims in the two proceedings are quite different having arisen from completely different sets of facts. (emphasis added)

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