Whilst conduct is not generally relevant to property law settlements within family law, in certain instances, serious violent conduct may be viewed as impacting upon a party’s ability to contribute to the relationship or otherwise make contributions more arduous than they ought to have been.
This principle first arose in the case of Kennon and Kennon  FamCA 27 (‘Kennon’) where the wife claimed that she should receive an additional percentage of the asset pool due to the assault and battery perpetrated against her throughout the relationship.
As Kennon has established, it is necessary to provide evidence to establish:
- The incidence of domestic violence;
- The effect of domestic violence; and
- Evidence to enable the court to quantify the effect of that violence upon the parties capacity to ‘contribute’ as defined by section 79 (4).
This issue arose recently in Keating & Keating  FamCAFC 46 (‘Keating’) where the wife claimed an adjustment arising from family violence perpetrated by the husband both during and after their relationship. The proceedings between the parties were confined to the adjustment of their proprietary interests and the wife’s entitlement to spousal maintenance.
The wife’s evidence included the husband breaking her nose, beating her until she passed out whilst overseas, suffering serious bruising and broken ribs. The primary 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 domestic violence orders made for her protection.
Further the primary Judge appeared to have dismissed all incidents of violence towards the wife except that which resulted in the wife’s wrist being broken by the husband, apparently because her evidence was uncorroborated.
The Full Court noted that it is well established that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. Often domestic violence occurs in circumstances where there are no witnesses other than the parties to the marriage and possibly the children. Therefore, they noted that they ‘cannot accept a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.’
In considering the wife’s claim for an adjustment as a consequence of family violence, the primary Judge misdirected his attention from the ‘discernible impact’ of the husband’s violence on the wife’s capacity to make contributions focussing instead on there being no evidence allowing ‘quantification’ of that effect.
The Full Court of the Family Court upheld that Kennon should not be interpreted as ‘laying down a hard and fast rule that post separation family violence to a spouse who seeks to continue to the welfare of the family as a parent is irrelevant’.
For family violence to be relevant in property law settlements in family law, it would be necessary to show that the conduct occurred during the course of marriage and had a discernible impact upon the contributions of the other party.
However, the Family Court could not make a conclusive decision that the Primary Judges’ decision to make no “Kennon” type adjustment was wrong due to the absence of a transcript. It appears that Kennon remains good law, its guidelines are reserved for what the Full Court called a ‘relatively narrow band of cases.’
The appeal succeeded, and the Order made on 10 January 2018 was set aside and the matter was remitted to the Federal Circuit Court for rehearing.