You may recall from previous articles, a Kennon claim in tbe family law jurisdiction relates to a finding contributions were made more onerous as a result of domestic abuse perpetrated during a marriage or defacto relationship, warranting an adjustment to the property pool in recognition of same. It is not punitive in nature, nor does a Kennon claim seek to compensate a victim party.
Whilst compensatory damages are also not punitive in nature, the state courts, such as the NSW Supreme Court, have jurisdiction to order that common law damages be paid to a successful plaintiff. Claims can be made in relation to torts.
Now, the Family Court has jurisdiction to assess common law damages, and has noted in judgments that victims are entitled to exemplary damages under its accrued jurisdiction to award damages. However, it is not common to see orders sought for such relief, amongst what are already complex proceedings driven by various motivators, costly enough with the subject matter limited to property and parenting matters governed by the Family Law Act 1975.
It is also not common to see proceedings brought in the State or Territory Courts for allegations of torts of battery, assault, and consequential emotional distress, despite the Judge’s commentary in this recent District Court of NSW interim hearing, that they are ‘well recognised actionable torts’.
State civil interlocutory judgment: Giunta v Giunta (Pseudonyms)  NSWDC 2022
On 8 June 2023, a husband argued that a wife’s claim for compensatory damages should be struck out do to number of factors. These are summarised below, together with the court’s findings.
Arguably justiciable claim; capabile of determination at preliminary stage of the litigation
Is there merit in the wife’s argument? Intentionally causing emotional distress is, to a low degree at the very least, is congruent with elements of the tort of intimidation. And, conduct amounting to trespass to the person is also known to the law. At worst, the jurisdiction and law justify the claim having the opportunity to be heard on a final basis. The husband’s arguments in this regard were rejected.
Statutory limitation as bar to proceedings
The husband argued there was a 3-year or 6-year statute bar the wife failed to bring proceedings within. An assessment of various factual matters cannot be properly canvassed on pleaded but untested evidence – this can only properly occur at trial. Only the clearest of cases ought be an exception to the court’s reluctance to decide limitation questions on limited evidence at interim hearings.
Was the husband troubled and exhausted in family court proceedings on issues identical to the present proceedings, which unfairly oppress the husband?
The husband argued the Wife bringing these proceedings was an abuse of process. The court declined to make orders sought by the husband, permanently staying or dismissing her application. Attention was drawn to the husband making this argument on the one hand, whilst on the other, claiming the wife should have sought this in the family law proceeding: it is not fair to bring this claim now that claim is finished. Further, the wife did not compel the family court making findings it was required to make in relation to family violence, particularly as the Husband instigated those proceedings.
Applicability and/or relevancy of res judicata, issue estoppel, or Anshun estoppel
The Wife did not specifically seek the family court invoke its accrued jurisdiction and assess an amount of compensatory damages with reference to common law principles. The husband’s estoppel arguments stem from the notion both proceedings had a ‘common substratum of facts’. However, assessing a Kennon claim is not equivalent to evaluating common law damages for pain and suffering as a consequence of wrongful conduct. More expansive evidence is involved regarding loss for tortious claims as opposed to the evidence required in determining property proceedings. The Kennon claim was found to be separate and severable from these claims framed in tort.
In conclusion, a stay or strike-out order was not justified in the circumstances.
The Judge found the partial overlap of the Kennon adjustments and damages pleadings did not amount to oppression or unfairness against the husband, and ruled the Wife is entitled to pursue her claim in this court for tortious damages. An order was made for the husband to pay the wife’s costs of the dismissed motion. The case will continue to final hearing (unless a settlement position is reached by agreement, prior to.
 Giller v Procopets (2008) VR 1.
 High Court of Australia principle establishing high bar for strike out on basis of absence of reasonably arguable case from General Stell Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125;  HCA .
 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, p533
 Pichard & Pichard  FedCFamC1F 549 at -.
 Crampton & Robinson FamCA 65 at , .
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
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