Sadly all too often these days the issue of domestic violence within relationships finds its way into our news headlines.

In 1975 Family Law Act replaced the older Matrimonial Causes legislation and a new regime was introduced that did not focus on fault or needing to attribute blame to one party for the breakdown of the relationship.

Under the Family Law 

  1. when determining issues of divorce it was only necessary for a spouse to the proceedings to establish that the parties had indeed been separated for the requisite 12 months, whatever the reason for the split.
  2. When determining issues of property settlement, it did not matter how many boyfriends or girlfriends one partner to the relationship had, the focus was on an assessment of contributions to the marriage and the future needs of each party.

So when if at all, does poor behaviour or violent behaviour by one party to another, become relevant to the Court’s decisions about property?

One of the instances when violent behaviour can be relevant to property settlement proceedings is referred to as a “Kennon” argument.

Kennon and Kennon [1997] FamCA 27 was a decision of the Full Court of the Family Court (3 Judges sitting). In that case the Judges said

“[O]ur view is that 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 on 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.”

Although what the Judges in that case said seems quite clear, in practice however it can be difficult to make that connection – that is, showing the Court that the contributions were harder to undertake because of the other party’s violent conduct-even where the domestic violence and violent conduct can be established to the Court’s satisfaction.

In a recent case of Sedgley & Irvine [2016] FCCA 2902 (6 December 2016) the Trial Judge found that in fact the wife had been subjected to incidents of domestic violence by the husband; however when it came to showing that  the conduct had made her contributions more difficult or “arduous”, the wife failed to establish that connection.

What the Judge did say in the case was that

“the wife had been subjected to family violence by the husband but the wife’s evidence did not show her contributions were made more arduous by the husband’s violence.”

So in what other circumstances will the Court make an adjustment in favour of an injured party?

One circumstance where poor conduct can be relevant is where one spouse’s conduct has injured the other spouse and the effect has been to diminish their capacity to earn an income.   In cases of this nature, the Court would need medical evidence as to the spouse’s injuries and a medical opinion that those injuries have prevented or reduced an ability to earn an income.

In our experience due to the complexity and potential costs of these proceedings, parties will try to resolve their property dispute without proceeding to hearing on these issues. They will decide they want to avoid the uncertainty of inviting the Court to decide whether there is a valid “Kennon” argument.

Even if that aspect of the case is not heard by a Court because of the complexities of this type of claim, it can be a valid issue to raise in negotiations with the other spouse. he or she will then at least consider that there may be a risk of a “Kennon” claim being made.

Sometimes the other benefit of at least raising this as an issue is that a domestic violence victim can outline in a formal way to the other spouse (and their legal representative) the conduct that took place, with some acknowledgement that such behaviour is unacceptable.

If you would like more information or advice, please contact:

Carolyn Munk

Principal

T 9806 7418 | F 9633 9400

famlaw@matthewsfolbigg.com.au

Carolyn Munk
Carolyn Munk is a Family Law specialist at MatthewsFolbigg Lawyers. Carolyn has practiced exclusively in Family Law since 1987 and has been an Accredited Specialist in Family Law since 1993.

Carolyn practices in all areas of Family Law and de facto relationships law and deals with issues concerning a relationship breakdown including property settlement, parenting disputes and child support.

She appears regularly in the Family Court of Australia and Federal Magistrates Courts at Sydney and Parramatta, the Supreme Court of NSW and Local and District Courts of NSW. Carolyn has worked as a Deputy Registrar at the Family Court, which provided invaluable experience in advocacy and dispute resolution.

Carolyn can be contacted at carolynm@matthewsfolbigg.com.au