Family violence and property
For people who find themselves in a parenting dispute following separation, it is usually no surprise that family violence is a significant factor for the Court in determining care arrangements for children.
However, increasingly, family violence is also considered a relevant element when separated parties are in the process of dividing their assets.
The emerging relevance of family violence over time
Historically, family violence was barely considered in property settlements, particularly in the first 2 decades after the Family Law Act was enacted in 1975. With the introduction of a “no fault” jurisdiction, the Court initially paid scant attention to family violence when considering each party’s contributions to the assets, and each party’s future needs, as part of its determination of a just and equitable financial settlement.
The first reported decision departing from this principle and acknowledging how family violence may impact upon the financial aspect of a broken-down relationship came from the case of Doherty & Doherty (1996) FLC 92-652 (Doherty). In that case, Judge Baker stated:
“Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the appellant’s conduct, the respondent’s contribution as a homemaker was increased and the appellant’s similar contribution diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case.”
Marando & Marando (1997) FLC 92-754 (Marando) continued the momentum of this concept, with the court acknowledging that the contributions of the wife as a homemaker were impacted by the family violence perpetrated against her and the children by the husband.
Kennon
Despite the recognition of the relevance of family violence in property matters, neither Doherty nor Marando resulted in orders granting the victim of family violence a greater share from the property pool due to the family violence itself.
That breakthrough finally came in the matter of Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 (Kennon).
In Kennon, the Full Court of the Family Court (now the Federal Circuit and Family Court of Australia (Division 1)) was asked to consider whether family violence perpetrated by the husband against the wife could result in an adjustment of the property pool in the wife’s favour.
The brief facts of Kennon are that the parties began living together in April 1989 before marrying in September 1991 and separating in March 1994. They had no children together.
The husband had an income of approximately $1 million per year and $8.7 million in assets in his name whilst the wife earned less than $40,000 and had minimal assets in her name.
The wife asserted that the husband had perpetrated family violence against her throughout the relationship, including seven specific allegations of physical violence. She presented medical evidence showing that in addition to the physical violence she had endured, she had also suffered psychological damage arising from the husband’s violent conduct.
The court ordered that, due to the damage the husband’s violence had inflicted on the wife, the wife was entitled to an increased share of the property pool pursuant to Section 79 of the Act. Section 79 sets out what the court is to consider in determining a just and equitable division of property.
Kennon opened the door for family violence to be taken into account in property settlements if:
- A pattern of family violence could be established.
- The family violence had had a discernible impact on the contributions of the victim.
- The victim’s contributions to the relationship had been significantly more arduous because of the family violence.
Where those elements are present, Kennon tells us the victim of family violence may be entitled to a greater share of the property pool to the detriment of the perpetrator.
Since Kennon
Whilst the Kennon decisionrepresented a shift towards a greater recognition of the impact of family violence within the context of family law matters, it was made 25 years ago.
The more recent cases of Keating & Keating [2019] FamCAC 46 (Keating)and Benson & Drury [2020] FamCAFC303 (Benson & Drury)show that the law in this area has continued to evolve, albeit slowly.
The court decided in Keating that corroborative evidence need not be presented by the victim of family violence, in order for family violence to be found to have occurred. The court also found that family violence should be taken into account when determining an appropriate division of property.
In Benson & Drury,the primary judge found that the husband’s physical violence had a “debilitating effect” on the wife. The primary judge found that the parties’ contributions were equal but that the wife should receive an ‘adjustment’ of 5% for her Kennon claim, resulting an overall 55/45 division. The husband appealed to the Full Court. The Full Court agreed that the wife was entitled to an increased share of the property pool as a result of family violence and that 55/45 was an appropriate outcome. However, the Full Court clarified that family violence should have been considered and weighed by the primary judge as part of a holistic assessment of contribution factors, rather than an adjustment after finding that other contributions were equal.
Conclusion
Courts today are more likely to recognise that the physical and psychological harm caused by family violence can impact on a victim’s ability to contribute to the property pool and on their needs into the future.
Whilst this is a promising trend for victims of family violence, every family law matter is different and in each particular matter, whether a court will consider an adjustment on the basis of family violence will be dependent on the specific facts of the case.
If you are separating and have experienced family violence during your relationship, it is important that you seek specialist advice and assistance from experienced family lawyers. Contact us on 03 8672 5222 to speak with one of our expert and caring family lawyers.
