The Effect of Family Violence in Property Proceedings

By 1 November 2018Family Law
family violence property proceedings

The existence of family violence is, at least presently, an unfortunate reality for many couples who separate.

Whether that family violence may affect the ultimate adjustment of the property of the parties is a question posed reasonably often in family law proceedings.  In answering that question it’s important to turn to the cases on the point.

The seminal case in this area is the 1997 case of Kennon v Kennon (1997) 22 FamLR 1 (however that was not the first case which raised the impact of family violence).

In the Kennon case the wife alleged that she had been subjected to frequent and significant family violence at the hands of her husband, and that such violence had made the contributions of the wife more onerous, with the ‘contributions’ of each party being one of the factors the Court’s are required to take into account when determining a property adjustment case.

The matter ultimately made it’s way to the Full Court of Family Court, at which time the following comments were made:

Justices Fogarty & Lindemayer 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 contribution to the marriage, this is a factor which a trial Judge is entitled to take into account in assessing the parties’ respective contributions under s 79.

Justice Baker – Domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.

The views expressed by the Full Court have found their way into many subsequent cases in the family law sphere.

Stated succinctly, if the Court forms the view that the contributions of a party were made more difficult than they would have otherwise been as a consequence of family violence inflicted upon them by the other party, that can impact on the weight which is given to the victims contributions, i.e. they are given more weight.

It is important to note that whilst the case law leaves little doubt that family violence may impact upon a property adjustment the question as to whether it will turns largely upon the evidence which can be provided.  This point was explored in the recent case of Britt & Britt (2017) Fam CAFC 27.  In that case the wife’s evidence as to the impact of the family violence upon her contributions was excluded by the Court at trial, seemingly due a lack of particularity and specifics of the family violence and the probative (useful to prove a point) value of it.

On appeal by the wife the Full Court were of the view that it was an error for the trial judge to have excluded the wife’s evidence as it may have impacted upon the final decision. As the wife’s appeal was successful, the matter was sent back for a re-hearing.

This recent case highlights the importance of how, and what, evidence, is presented to the Court by a party asserting that their contributions were made more arduous due to family violence.

In conclusion, whilst it is certainly possible for family violence to be taken into account in property proceedings serious consideration and planning must go into how that evidence is presented and what level of particularity is required to give the argument the greatest prospects of success.

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