Is domestic violence relevant in a property settlement?
Can a court adjust property in favour of victims of domestic violence?
Evidence of domestic violence during a relationship does not commonly influence the outcome of property settlements.
However, sometimes, in a narrow band of cases, domestic violence can be relevant to deciding the value of the contributions of a party who was a victim of that violence
The relevant principle which was originally espoused in the case of Kennon (1997) 22 Fam LR 1, is as follows:
“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 to 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 s79.”
In summary to the question, is domestic violence relevant in a property settlement where:
- There was a course of conduct by one party towards the other during the marriage which
- Had an adverse/discernible impact upon that parties contributions, making their contributions more arduous where one party’s contributions are made significantly more arduous
that party may be entitled to a greater share of the property pool.
There does not need to be corroborative evidence of the domestic violence as the cases recognise that domestic violence usually occurs behind closed doors, but there does need to be a nexus between the conduct complained of and the victim’s capacity to contribute during the relationship.
The Kennon principle was recently considered in the following cases:
Case Study: Gillard & Gillard & Anor [2016] FamCA 841
In the recent decision of Gillard & Gillard & Anor, the Family Court was required to determine an application for property settlement wherein Ms Gillard argued that she was entitled to a greater share in the property pool because her contributions were made significantly more arduous due to family violence.
In this case, Mr Gillard (66) sought a 50/50 division of the assets and Ms Gillard (64) sought a 70/30 division of the assets.
Both the children gave evidence of Mr Gillard’s violent history towards them and towards their mother. Ms Gillard’s treating psychiatrist also gave evidence that her exposure to domestic violence by Mr Gillard had been the primary cause for her depression and anxiety. The court found that Ms Gillard’s contributions as homemaker and parent were made significantly more arduous by reason of the family violence perpetrated on her by Mr Gillard and the resultant physical and psychological effects on her.
An adjustment was made on account of this of 7.5% in Ms Gillard’s favour.
Case Study: Friar & Friar and Anor [2014] FamCA 689
In another recent case of Friar & Friar and Anor, the family court found evidence that there were violent assaults while Ms Friar was heavily pregnant with the parties’ children, threats to Ms Friar with both a knife and a gun, multiple allegations of rape, the wife was forced to strip naked in public under threat of violence to her extended family and was dragged by the hair and her hair was ripped out. Justice Murphy determined that the overall contributions were 60%/40% in Ms Friar’s favour as her contributions as homemaker and parent were made significantly more arduous by reason of her exposure to serious family violence and the impact of that violence upon her.
Case Study: Farina & Lofts and Anor [2019] FamCA 27 – Impact of violence may be inferred if no express evidence
In Farina & Lofts, the Husband sought an interim ruling as to whether the Wife’s evidence taken at its highest was sufficient to meet the requirements of the Kennon case so as to result in an additional adjustment to the Wife.
The court took the opportunity to outline the principles of Kennon and the evidence required to establish that the Kennon principles apply.
The Court said that Kennon requires evidence regarding the following matters:
- A course of conduct falling within the definition of family violence in s4 of the Family Law Act (incidence)
- The impact of the family violence on the victim’s capacity to make contributions (effect); and
- How that impact can be quantified (quantification) (however the court in Keating has subsequently raised doubt about the quantification requirement)
The court held that even if there is no express evidence of how the conduct impacted on the victim’s ability to make his/her contributions, the impact may be inferred if the evidence clearly supports it, but it must be a significant adverse/discernible impact on the victim’s contributions.
The allegations by the Wife were wide ranging including physical abuse (black eye, dragging hair), verbal abuse, financial abuse and psychological abuse and that the behaviour ‘made it harder to contribute’. The husband argued that this evidence was insufficient.
The Husband conceded that the conduct had some impact on the wife’s contributions e.g. making her feel anxious/fearful and unable to go to her place of employment and that she resigned from her cooking duties, but argued that the evidence failed to demonstrate a discernible/significant adverse impact on her contributions.
The Husband distinguished the following cases where the Kennon principles applied:
- In Baranski & Baranski & Anor the perpetrator’s conduct resulted in the couple’s children not spending time with the perpetrator causing an obvious increase in the parenting contributions made by the victim such that it could be inferred.
- In Gillard & Gillard & Anor there was evidence from a psychologist establishing the impact on the victim.
- In Ismail & Elfar there was evidence of the victim suffering nightmares and experiencing difficulty coping such that she had not been able to carry out all the things she would have liked to have done because of violence.
- In Whelan & Whelan there was evidence the wife could not work for a period and that she had suffered depression. The trial judge also referred to the direct evidence of the ‘practical’ impact of the perpetrator’s conduct on the victim.
The interim ruling of the Court was ultimately that the evidence relied upon by the Wife was insufficient so as to establish either the impact of the conduct on the Wife’s capacity to make contributions or the quantification of that impact on her contributions whether by way of direct evidence or inference.
Case Study: Keating & Keating [2019] FamCAFC 46: No corroborative evidence of violence required or quantification of the impact of the violence
In Keating & Keating, the wife’s evidence included that the husband broke her nose, broke her wrist, beat her until she passed out whilst overseas and that she suffered serious bruising and broken ribs.
The Trial judge did not give any weight to the wife’s evidence that the husband had undermined her parenting, the effect that his violence and abuse had on her mental health and the three DVO’s made for her protection. The trial judge also dismissed most of the incidents of domestic violence except the incident whereby he broke her wrist, because the evidence was uncorroborated.
The wife appealed.
On appeal, the Full court held that the trial judge misdirected himself by failing to focus on the discernible impact of the husband’s violence on the wife’s capacity to make contributions, focusing instead on there being no evidence allowing quantification of the impact.
The Full Court in making their decision to grant the appeal, set out the following principles in relation to Kennon arguments:
- Corroborative evidence is not required for domestic violence to be accepted and taken into account. Domestic violence often takes place in circumstances where there are no witnesses other than the parties to the marriage and the children. Therefore, they could not accept that the court could not make a positive finding that violence occurred without corroborative evidence from a third party or a document or an admission.
- Evidence does not need to be provided so that the effect of the domestic violence on the victim could be quantified. The reference to quantification of the impact on the victim was according to the majority simply confirming that there does need to be evidence to show that as a result of the domestic violence, there was a discernible impact on the ability of the victim to contribute (in other words, a nexus between the conduct and the ability to contribute), although that evidence does not need to quantify that impact.
Austin J in dissent held that the veracity of the allegations must be tested and evaluated and the victim must do more than allege that they were a victim of their partner’s violence.
The majority in this case made clear that the focus in Kennon cases should be on the discernible impact of the family violence on the victim rather than the lack of evidence allowing ‘quantification’ of that impact.
This case will no doubt result in an increased number of Kennon arguments being made due to what may be perceived as an acceptance that the circumstances of family violence are inconsistent with the notion of quantification of the impacts of family violence on contributions, and, evidence of significant family violence, its impact on the victim, and their ability to make contributions, constitutes sufficient evidence to successfully run the argument.
Case Study: Eaton & Eaton [2020] FamCA 446
In Eaton & Eaton, the Wife filed an affidavit deposing to serious physical, sexual and emotional abuse.
The Husband sought a ruling on interim basis from the court to strike out all references to the alleged conduct on the basis that the wife failed to demonstrate any nexus between the alleged conduct and any contributions she asserts to have made during the marriage and, as a result, those paragraphs of her affidavit should be excluded, or alternatively, that her evidence does not have sufficient probative relevance to have any material impact on the outcome of the proceedings and should be excluded on that basis.
The Judge held that the allegations in this case were in his 32 yrs as lawyer and 9.5 yrs as judge were one of the most serious & justifed the description ‘exceptional’. wife’s case fell within the exceptional category identified by the Full Court in Kennon and was accepted that the evidence was probative in respect of crucial matters in issue in the proceedings
The objections raised by the husband were overruled and dismissed.
How does the court consider an adjustment where a Kennon argument is advanced?
In Benson & Drury [2020] the Court cautioned against using the descriptor of a ‘Kennon claim’ as it invites treatment of the issue as an isolated claim for an additional share of the available property pool. The Court held that it must take a holistic approach. Contributions made significantly more arduous are to be considered amongst all the other contributions made by each of the parties and weighed collectively as it is an error to segment/compartmentalise the various contributions and weigh one against the remainder. In other words, the Court should not deal with the Kennon Claim separately and discretely but amongst the myriad of other contributions made by the parties during the relationship.
The Court in Benson also made clear that per Keating, quantification evidence beyond that of the victim spouse as to the incidence and effect of the violence is not required, but there must be a nexus between the conduct complained of and the capacity of the victim spouse to make contributions.
The Court has made clear in Loncar & Loncar [2021] reiterated the approach in Benson. In that case the Court assessed the Wife’s contributions as being 57.5% and an additional 10% for future needs factors. The Wife argued on appeal that as the contributions based assessment was based on violence by the Husband towards her, the Trial Judge errored in not quarantining (ignoring) the disparity in positions based upon the contributions assessment, at the third stage when assessing future needs and the fourth stage of justice and equity. The Wife consequently argued that the assessment of a 10% adjustment for future needs was unreasonable/plainly unjust (as the Court did not quarantine the Kennon argument at the 3rd and 4th step). The Appeal court refused to consider a Kennon case within the same rubric of cases based in tort law. The Appeal Court held that the Court must take a holistic approach and all contributions must be weighed collectively. A kennon argument is not to be considered as an isolated claim to an additional share in property and it is an error to segment and compartmentalise various contributions and weigh one against the remainder.
Take home message: is domestic violence relevant in a property settlement?
Unfortunately family violence is prevalent in many if not most matters before the family law courts.
Violence in a relationship on its own is not enough to persuade a court to make an assessment of contributions in favour of the victim, being an assessment different to what it would have otherwise made if there was no violence.
However, were there is a course of violent conduct towards one party to a relationship, which has made that party’s contributions significantly more arduous, that is certainly a relevant factor which a court is entitled to take into account in assessing the quality and quantity of the parties’ contributions during the relationship to a pool of assets.
If you are a victim of family violence you should seek immediate advice from an experienced domestic violence lawyer.
Are you still wondering, is domestic violence relevant in a property settlement? The answer is, sometimes.
For more information regarding your rights and remedies, reach out to a Brisbane Family Lawyer at Barton Family lawyers for advice on your specific circumstances. Please call 3465 9332 or contact us online.
Updated 24/01/2023
