Mynatt v Siddall [2020] FamCA 40

The case of Mynatt v Siddall, a decision by Watts J, Judgment dated 31 January 2020, is a further modern interpretation of the Kennon & Kennon rule.

Many practitioners have been aware that the bar placed by the Kennon decisions have made it a very difficult application to successfully execute on behalf of a client.

During 2019, there have been judgments that have indicated a change in the approach taken by the Full Court, in particular, in relation to such applications.

This was a case where both the de facto wife and the de facto husband had case guardians appointed.

The wife did not give evidence as she was so unwell that she was not able to give evidence or attend the hearing. The Applicant was described by the Judge as giving “her evidence in a forthright manner”. In relation to the husband, the Trial Judge said, “I observed many occasions where the husband said that he did not know something or where he was unable to remember something and I concluded that he was being evasive”.

Technology was provided which included reference to the wife having called the police on a number of occasions:

  • June 2004;
  • 30 July 2010 the police attended;
  • 14 November 2010 the husband was charged by the police with assaulting the wife and her son;
  • 28 January 2011 the husband was convicted of assault and was fined, and an ADVO was issued against him for a period of 12 months;
  • 3 May 2011 the husband was charged by police with assault of the wife and breach of ADVO and was denied bail;
  • 9 June 2011 the husband was convicted of assault and breach of ADVO;
  • 10 June 2011 the husband was released from gaol;
  • 19 August 2011 the wife says the husband punched her in the face knocking her front tooth out and continued to assault her over the next four days;
  • 24 August 2011 the husband was charged with assault occasioning actual bodily harm, common assault and contravening the DVO;
  • October 2011, the husband was convicted of assault contravening his DVO and received an eight month suspended term of imprisonment. The DVO was extended to 28 January 2013;
  • 23 December 2011, the husband was charged by police with assault.

The court made a finding that because of the wife’s mental health she had no earning capacity and that that was not likely to change.  They made the same finding in relation to the husband.

This case note is focussed on the contributions assessment by the Trial Judge.

Emphasis of the Kennon claim starts at paragraph 178.

Counsel for the Applicant (the wife’s litigation guardian), sought a finding that “in assessing the respective contributions of the parties pursuant to section 90SM of the Act, the wife’s contributions were made significantly more arduous as a result of the family violence perpetrated by the husband”.

The Applicant was able to give evidence that during the wife’s relationship with the husband, she often observed physical injuries on the wife. Given these statements were made by the wife contemporaneously with the Applicant observing physical injury, I put some weight on them.

The police referred the wife to a domestic violence follow-up service after the 10 August 2014 attendance.

The Judgment contains an extract from police reports.

At paragraph 216, the court begins the conclusions in respect of contributions.

At paragraph 221, the Judge said: “Both the husband and wife respectively struggled with issues relating to their mental health. The relationship was also blighted by serious drug taking by both parties and systematic family violence perpetrated by the husband against the wife”.

At paragraph 226, the Trial Judge said: “As I found above, relevant contributions made by the wife were made significantly more arduous as a result of the family violence perpetrated on her by the husband”.

There was no adjustment made for care of a child because the child was in the care of the mother’s mother.

At paragraph 237, the Judge determined there would be a further adjustment of 12.5% in favour of the wife as a result of the section 90SM(4)(d) to (g) considerations.