Many factors are taken into consideration when making orders for property division, but can a history of domestic violence towards your partner or children impact the final outcome? The answer to this, as exhibited recently in the case of Adair & Adair [2019], was deemed to be yes, and although it is not normally considered during property settlements, violent conduct towards family members can in fact effect decisions made in the Family Court in certain circumstances.

In Adair & Adair [2019] FamCAFC 70 (29 April 2019), it was found that the wife’s contributions should be given greater weight due to the fact they would have been made more arduous as a result of the husband’s violence. In a previous parenting hearing, it was found that the wife and three daughters had been assaulted at the hands of the husband. This meant that the husband was deemed to be an unacceptable risk to his daughters, and as such, he should no longer spend time with them. After acknowledging this history of family violence, it was ultimately ordered that three properties should be transferred to the wife.

The first case to recognise this principle was Kennon and Kennon [1997] FamCA 27. This involved a 4 year marriage with no children. The wife claimed that she should receive an additional percentage of the asset pool due to the assault and battery inflicted on her throughout the relationship.

During this case, it was established that the following elements must be present in order for a party to receive an adjustment in his or her favour in the determination of property interests on the basis of violence:

• A violent course of conduct
• During the marriage
• Requires proof of a significant adverse or discernible impact upon the party’s contributions to the marriage or having made those contributions significantly more arduous.

Cases following Kennon & Kennon suggest that:

• There must be evidence of the relevant course of conduct and its impact upon the other party’s contributions;
• It is necessary to prove a connection between the violence and contribution; and
• The claim can only be established by probative evidence that satisfies the Court on the balance of probabilities. In Kennon, the Full Court indicated that these principles only apply in “exceptional circumstances” to a “narrow band of cases.”
• Case law also suggests that although f violent conduct need not be frequent, a degree of repetition is required.