In some circumstances, family violence is relevant to a property settlement, but like all Family Law matters – every case turns on its own facts.
Before 1997, the Court had no regard to family violence perpetrated during a relationship or marriage when determining a property matter. This changed, with the landmark case In the Marriage of Kennon (1997) FLC 92-757 (“Kennon”). In that case, the Court said “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.”
In Kennon, the wife provided evidence of domestic violence throughout the relationship, including physical violence. Her doctor provided evidence that she suffered from anxiety due to her Husband’s conduct.
This is now known as a Kennon argument.
The Kennon argument was considered again in Spagnardi & Spagnardi [2003] FamCA 905, the wife asserted gave evidence of 8 separate incidents of alleged violence, and the trial judge accepted that the Wife’s contributions as a homemaker and parent were made significantly more arduous than they ought to have been because of the Husband’s violence. However, the Court declined to make an adjustment, as there was no detailed evidence before the Court on the effect of those contributions. The Court stated (and affirmed on appeal) “To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.”
In Spagnardi, the Court held that for a litigant to be successful in a Kennon argument, and receive an adjustment of property on account of the family violence, it would be necessary to establish:
- incidence or incidences of violence;
- the effects of the violence; and
- evidence to allow the effect of the violence to be quantified in the context of the capacity of the victim to contribute.
The Spagnardi case seemed to create a higher evidentiary burden for litigants, which in turn made it more difficult to achieve an adjustment on account of family violence.
In Keating & Keating [2019] FamCAFC 46 the wife alleged a number of serious family violence incidents including constant criticisms of her parenting, multiple beatings resulting in broken bones, and multiple Violence Intervention Orders. The Husband denied all allegations but made admissions to having broken the Wife’s wrist on one occasion. The Wife was unsuccessful in the first instance, but successful on appeal.
On appeal, the Court held that a victim spouse is not required to provide corroborating evidence of violence to be accepted, and the focus of evidence should be on the discernible impact of the violence rather than the quantification of that impact.
The Kennon argument only applies to a relatively narrow band of cases.
If you are separating, or separated, please contact our Family Law team at Masons to confidentially discuss your matter with our highly skilled Family Lawyers, or you can book an appointment online.
