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Britt & Britt [2017] FamCAFC 27

In Britt & Britt [2017] FamCAFC 27 the Full Court of the Family Court allowed an appeal where the trial judge has excluded evidence in relation to the Wife’s allegation of family violence. The trial judge erred when considering the admissibility of the evidence and the weight that should be placed on the evidence. The Full Court found that the trial judge had confused “admissibility” and “weight” — admissibility being whether the evidence is admitted into evidence to be considered by the judge in their determination and weight being the amount of weight the judge places on the admitted evidence – its probative value, taking into account the credibility of the witness.

This was a property matter where the parties had been in a long marriage. The Wife asserted that her contributions towards the property and welfare of the family were made more onerous as the Husband subjected her to physical violence and coercive and controlling behaviour.

The trial judge held that Wife’s evidence was not specific enough and it was found to be inadmissible. In her Affidavit, the Wife had suggested that the Husband “regularly” committed acts of family violence on her. The trial judge rejected some of the Wife’s evidence on the basis that it was not in the “proper form”. The trial judge found the evidence was a conclusion and was not specific enough, that it was “just too general” and she was critical of the use of the words to describe the frequency of the alleged incidents, being “regularly”, “often”, “routinely” and “repeatedly”. Her Honour suggested that it was not clear if the alleged acts of family violence occurred “once a week or once a decade”. The Trial Judge also excluded statements in the Wife’s Affidavit that the Husband had dominated her “throughout the relationship”, “was violent and aggressive”, “always aggressive and violent” and that she “often intervened when he attempted to hurt the children”.

The Full Court disagreed and instead held that as the evidence had probative value then it should be admissible. The Full Court said: “The statements made 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 “[e]vidence 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 throughout that relationship, let alone specific dates”.

The appeal was upheld and the case was remitted for re—hearing.