Family Violence in Property Cases

The Family Law Act of 1975 (“The Act”) established the principle that Australia is a no-fault divorce jurisdiction. The “no fault” element permeates through to property and financial cases such that if those cases involve family violence, the violence is often irrelevant to the question of how the court deals with it. There are two important exceptions.

1. Section 79(4) (Married couples) or 90SM(4) (De Facto couples) – “the contributions section”: The Court must consider the contributions of each party to the acquisition, conservation or improvement of property and to the welfare of the family in the capacity of home maker or parent.
   1. There is scope for the Court to take into consideration the impact of family violence (as defined in Section 4AB of the Act) with respect to the victim’s contributions.

2. Section 75(2) (Married couples) or 90SF(3) (De Facto couples) – “future needs factors:” The Court must consider a range of factors such as age, state of health, income, capacity for gainful employment, whether either has care of a child of the marriage and the extent to which the relationship has impacted earning capacity.
   1. A victim of family violence may have higher present and future needs.

The future needs factors section has not, at the time of writing, been used by the Court to award a higher adjustment to victims of domestic violence by virtue of their increased present and future needs caused by the family violence.

 

Kennon v Kennon

The Court considered whether family violence had a bearing on contributions in the case of Kennon v Kennon[1] In that case, the Court held that “Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of negative contributions which is sometimes referred to in this discussion”

There are two elements the person pleading a Kennon argument must successfully make out:

1. A course of violent conduct;
2. That that violent conduct had an adverse impact on their ability to make contributions. The test is whether the violent conduct made the victim’s contributions more arduous than would have been the case if the violent conduct had not occurred.

The Court further noted that:

1. The principle is not limited to domestic violence but did not give examples of what may be categorised as within “the more general category of conduct which may be relevant within Section 79.”
2. The application of this principle is limited to “exceptional cases” lest the running of a Kennon argument reduce the Court to “fault and misconduct in property matters”
3. The applicable cases will be “a relatively narrow band of cases”
4. The conduct must have occurred during the marriage and have a “discernible impact” on the victim’s contributions. It is important to note that the Court specifically excluded the application of the principle to post-separation contributions.

 

Consideration of Kennon

In Kozovska and Kozovska, Federal Magistrate Altobelli, as he was then known, noted that Kennon “focuses on conduct during the marriage, but not afterwards, which suggests that the concept was not intended to apply to post-separation contributions.”

In 2012, the Court held in Baranski & Baranski & Anor that the principle could apply to post-separation contributions. [emphasis added]. In that case, the Court found that the Husband’s violence towards the Wife post-separation had made her ability to parent the parties’ children “significantly more arduous.” The Court clarified the applicability of the principle to post-separations, concluding that “nothing in the provisions of Section 79 or in logic which suggests that post separation contributions of any kind are not relevant to determining a just and equitable apportionment of the property of parties to a marriage.”

In two subsequent cases, Damian & Damian[2] and Jarvis & Seymour[3] the Court followed the approach in Baranski and made an adjustment in favour of the Wife whose post-separation contributions were made more arduous by the Husband’s violent conduct. However, in Lad & Gittins, Justice Austin did not make any adjustment to the party whose post-separation contributions were made more arduous by virtue of violent conduct of the other. Nevertheless, Justice Austin did agree with the interpretation of Kennon in Baranski.

 

Conclusion

A Kennon argument must be pleaded correctly. Lawyers should pay careful attention to provide sufficient and compelling evidence to satisfy both limbs of the test. Whether a Judge makes an adjustment will depend on the facts of the case. Judges have made it clear over the past 25 years that it will be a very exceptional case indeed where the principles of Kennon are to be applied.

[1] [1997] FamCA 27.

[2] [2012] Fam CA 535.

[3] [2016] FCCA 1676.