In its recent review of the Family Law system, the Australian Law Reform Commission (ALRC) received submissions supporting an amendment to the Family Law Act that would clarify how family violence is relevant to property division.

In the 1997 case of Kennon, the Full Court of the Family Court laid down the authority that family violence is a relevant factor when assessing a party’s contributions to the property of the marriage under section 79 of the Family Law Act. Section 79 sets out the factors that the Court considers when assessing parties’ contributions to the property of a marriage or relationship.

To satisfy the test from Kennon, a party must prove that they were subject to a “violent course of action” during the marriage which either had a “significant adverse impact” upon their contributions to the marriage or made those contributions “significantly more arduous”.[1] An obvious example of the ways in which family violence may impact on a party’s contributions to the property of a marriage or relationship could be that it causes either physical injury or mental illness that makes it difficult for the affected party to earn an income and contribute to the property pool.

Despite clear authority from the Court, Kennon arguments are infrequently made and lead to a relatively small adjustment to property outcomes where they are used. A 2014 study by Easteal, Warden and Young found only 57 reported judgements raising a Kennon argument between 2006 and 2012.[2]

Easteal, Warden and Young’s research found that of the 57 cases running a Kennon argument between 2006 and 2012, property adjustments for family violence were made in 42% of the cases and the average adjustment was 7.3% in favour of the party affected by family violence.

A recent case that ran a Kennon argument was the 2017 case of Britt. The wife in this case contended that her contributions towards the property of the marriage were made more onerous by the “coercive and controlling” behaviour of the husband and the physical violence he inflicted upon her. The husband was 16 years older than the wife and their sexual relationship began when the wife was only 11 years old. The wife described the beginning of the parties’ sexual relationship as “not consensual”.[3]

The wife in Britt gave evidence as to the husband’s sexual, physical and verbal abuse and described him as being “violent, aggressive and abusive” throughout the course of the marriage.[4] The orders made by the trial judge in this case were set aside as they did not factor in this family violence and the proceedings were remitted to the Federal Circuit Court of Australia for re-hearing.

The main argument for codifying the principle from Kennon in the Family Law Act is that it may increase the number of family violence victims who raise the argument in litigation, particularly those who are unrepresented. It may address the fact that negotiations typically result in worse outcomes for victims of family violence by encouraging them to raise the issue of family violence.

Arguments against codifying the Kennon principle include the potential for it to restrict claims about circumstances where contributions to property are made more arduous for reasons other than family violence, such as where there is alcohol abuse in the relationship. There are also arguments that the law should be allowed to develop incrementally through case law and that codification of Kennon might make settlement of some cases more difficult, particularly in dispute resolution.

The ALRC considered that the potential benefits of acknowledging family violence in the Family Law Act are sufficient to outweigh the possible risks of not doing so. The ALRC proposed in its review that the Act be amended to acknowledge the relevance of family violence to both the contributions made towards property (section 79) and to the future needs of a party to a separation (section 75).

If you need advice or assistance in relation to a property dispute where there are allegations of family violence, including filing intervention orders against a spouse, please contact Rowan Skinner & Associates Lawyers.

[1] Kennon and Kennon [1997] FamCA 27

[2] Patricia Easteal, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1, 9.

[3] Britt & Britt [2017] FamCAFC 27 at paragraph 26.

[4] Britt & Britt [2017] FamCAFC 27 at paragraph 26.