Following the Australian Law Reform Commission’s 2019 Inquiry into the Family Law System, the Family Law Act 1975 (Cth) (‘the Act’) has been subject to review by the Parliament for potential amendments. One area of reform currently before Parliament is the consideration of family violence within property settlements.
In determining property settlements post separation, the Federal Circuit and Family Court of Australia (‘the Court’) must assess the contributions of each party to the property pool. This requirement is set out in sections 79(4) and 90SM (4) of the Act for marriages and de facto relationships respectively.
In its current form, the Act does not explicitly acknowledge the impact of family violence on an individual’s financial capacity to contribute to a relationship. Accordingly, to understand how the Court handles applications seeking to adjust a property settlement in cases involving family violence, we must turn to relevant case law.
The Full Court case of Kennon & Kennon (1997) has given rise to what is now commonly known in family law as a Kennon Claim. This type of claim is frequently relied upon by parties seeking to demonstrate that family violence hindered their financial contributions to the relationship.
A party seeking to rely on a Kennon claim must provide evidence to establish:
- One party demonstrated violent conduct towards the other party;
- The conduct had a “discernible impact” on the other party;
- The contributions of the affected party were made substantially more difficult due to the violent conduct.
The court has made it clear that a party is not eligible for an adjustment solely based on being a victim-survivor of serious domestic violence. Instead, there needs to be evidence demonstrating that the violence had a substantial impact on their capacity to contribute financially to the relationship.
In a later decision, Benson & Drury , the Judge emphasised the need to consider contributions that have been rendered significantly more arduous, weighing them alongside all other contributions made by each party.
In the case of Baranski & Baranski (2012), the Court extended the scope of Kennon Claims to encompass not only contributions made during relationships but also post-separation. In this matter, the Court held that the Husband’s violent conduct towards the Wife, following their separation, substantially heightened the difficulties she encountered in parenting their children.
Ultimately, although the Act presently lacks explicit provisions for acknowledging family violence in property settlements, the Federal Government is actively pushing for reform in this area, as outlined in the exposure draft of the Family Law Amendment Bill (No 2). The proposed amendments to the Act aim to ensure that, when assessing the property pool available for division, the impact of family violence and financial or economic abuse is appropriately considered. This includes factoring in the effects of family violence on parties’ initial financial and non-financial contributions as well as their current and future needs. For example, the effect of family violence may be relevant when assessing a party’s prospects for future employment. Essentially, these changes aim to codify the principles established in Kennon & Kennon.
In late 2023 the Federal Government called for submissions from the public in respect of the Family Law Amendment Bill (No 2). This consultation process ended on 10 November 2023 and the submissions are now currently before Parliament for review.
Please do not hesitate to contact Nicholes Family Lawyers on 03 9670 4122 if you would like further information on the implications of family and domestic violence on a property settlement.