Placing a dollar value on family violence. Is it a thing? What you need to know.

By Jacqueline Gilchrist, Lawyer

In this article we look at the Family Court’s approach on family violence and property division.

To understand the impact of family violence on property settlement matters its important to understand what is means.

Section 4AB of the Family Law Act defines family violence as:

violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

Examples of family violence are cited in the definition to include:

1. an assault;
2. a sexual assault or other sexually abusive behaviour;
3. stalking;
4. repeated derogatory taunts;
5. intentionally damaging or destroying property;
6. intentionally causing death or injury to an animal;
7. unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
8. unreasonably withholding financial support;
9. preventing the family member from making or keeping connections with his or her family, friends or culture;
10. unlawfully depriving the family member, of his or her liberty.

The impacts of family violence are extensive, touching on various areas of the lives of those being subjected to it. The impact itself is dependent on how the violence is perpetrated, the home environment, family dynamics, and so on.

Married and de facto couples with or without children are all equally vulnerable to family violence, and such violence appears more prevalent in our current climate due to rising living costs, pandemics, drug and alcohol abuse, and housing shortages, to name a few.

With these outside interferences impacting on the dynamic of relationships it’s little wonder why couples and families currently face uncertainty, anxiety, stress, and depression.

By 2021, 1 in 5 people experienced a 12-month mental health disorder[1].  Family violence continues to remain at high levels, with comparisons of statistics between 2016 to 2022 showing very little has changed with respect to the numbers of physical, sexual and psychological abuse against family members or partners[2].   The prevalence of mental health issues is often a driving factor in a party committing family violence against a family member.

What do we know about the impacts of family violence and property division? Can the outcome of a property settlement be altered on account of family violence?

It would come as no surprise that family violence may severely impact one’s capacity to make contributions to the household both financially and non-financially. In other words, the contributions made by the victim of family violence may have been more arduous than if the violence was not present.

The Family Law Act guides the Court in determining the just and equitable division of assets.  Specifically, sections 75 and 79 give power to the Court to alter property interests after considering future needs, taking into consideration matters such as:

1. age and health of the parties;
2. income and financial resources of the parties;
3. children to the relationship and who has the care and control of those children; and
4. the standard of living that should be maintained.

The Court considered this in the case of Kennon v Kennon [1997] FamCA 27.  In this case, the husband earned a significantly higher income than the wife, but the wife claimed she was subjected to domestic violence during the relationship and. as a result, there should be an adjustment made in her favour in the overall property division.

The key factors in this case turned on establishing the violence and whether the violence was at a level that impacted the wife in a way that made her financial and non-financial contributions to the relationship difficult for her.

The matter went on appeal and the focus was on the effect of the violence.  The Appeal Court ultimately held that there was a “discernible impact upon the contributions of the other party” as a result of the violent conduct and so despite the trial judge awarding the wife $200,000 at first instance, the majority of the court on appeal awarded the wife $700,000.

Since this judgment there have been several cases dealing with financial matters that have relied on the Kennon argument to support that violent conduct in a relationship should alter the outcome of a property division.  The argument relies on application of the two-limb test as set out by the court, namely:

1. the course of the violent conduct; and
2. proof that the conduct had a significant adverse impact on the party’s contribution to the relationship making those contributions more arduous than they ought to have been.

Two questions arise when applying the test. Firstly, what can be determined as a violent course of conduct? Secondly, how does one prove there was a significant adverse and discernible impact on the party’s contributions so as to make those contributions more arduous?

Thankfully recent cases that have relied on Kennon have further developed the principle in this area of family law, and the courts have made useful suggestions in how to interpret and apply the test by narrowing its scope:

1. Firstly to raise the argument, the court in Cable & Cable [2007] FMCAfam 85 determined that there must be evidence. This this end, the court will look on the balance of probabilities that there was a course of violent conduct.
2. In order to ascertain the course of violent conduct, Whitlam & Whitlam (2008) [2008] FamCA 606 suggests that there need not be frequency of the violence, but instead a “degree of repetition”.
3. As to whether there was a significant adverse and discernible impact on the party’s contributions – making them more arduous, there must be a nexus. In Jarret & Jarret [2009] FMCAfam 55 the court suggests that there must be a connection between the violence and party’s contributions.
4. To avoid erroneous application of the principle, all the contributions must be considered. As the full court held in Benson & Drury [2020] FamCAFC 303 contributions must be considered “holistically” and weighed “collectively”. The contributions made significantly arduous must be weighed along with all other contributions by each of the parties and not isolated to a particular time. Therefore, initial contributions must also be considered.

Not all relationships are made equal, and the Court is willing to look at factors unique to the family circumstances to determine financial matters which may involve a consideration of the impact of violence.

Although Kennon was decided over 25 years ago, its utility in determining if violence can be used to argue that a client should be given an adjustment in their favour, certainly still holds weight.  However, it’s use and how successful the argument may be will turn on the specific facts in the case.

Of course, merely arguing the existence of family violence as a basis for an adjustment, is not enough to persuade the Court.  Evidence that the impact of the violence causing a party hardship will need to be made out.

Although acknowledging violence in family law matters is welcome, the argument appears to lack recognition of all facets of family violence especially in circumstances where the violence was not reported and may be difficult to prove, or where the violence is not of a physical nature.

The principle is also limited in scope with respect to time, as determined by the court in Kennon, that the argument may only apply if the violence occurred during the relationship and not post separation.  This is a somewhat difficult reasoning to keep in mind, as financial matters may take time to resolve, and engagement and communication between parties can be ongoing, leaving the abused party vulnerable to further acts of violent conduct by the other party.

As the Court finds ways to better define the test and its interpretation, discussion about family violence may soon become part of the usual considerations in financial matters.  In fact, the court in Keating v Keating (2019) suggested that the principle be applied broadly which is a shift in its original application according to the Court in Kennon who stated that it could only be applied to “a narrow band of cases”.

On one final note, an adjustment made on account of the Kennon principle should not be taken as the Family Court’s award of compensation. One could never possibly be compensated for experiencing family violence. Such an adjustment should properly be viewed as acknowledgement of the hardship one had to endure while making contributions in such adverse and unfair circumstances.

The lawyers at Carr & Co are specialised professionals who deal with these types of issues frequently.  If you require assistance for a family law issue, then contact our team on 9322800.

[1] Australian Bureau of Statistics (2020 – 2021). National Study of Mental Health and Wellbeing. ABS. https://www.abs.gov.au/statistics/health/meantl0health/national-study-mental-health-and-wellbeing/2020-2021.

[2] Australian Bureau of Statistics (2021 – 22). Personal Safety, Australia. ABS. https://www.abs.gov.au/statistics/people/crime-and-justice/personal-safety-australia/latest-release.