Impact of Domestic Violence on Family Law Property Settlements – Marriage of Kennon (1997)

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Domestic Violence is a destructive and prevalent issue locally in Australia, and globally. Domestic violence homicides account for a significant proportion of Australian homicides, and the detrimental effects on victims can be long lasting.

With Australia being a “no fault” jurisdiction for Family Law, the traditional view in property matters was to reject the relevance of Domestic Violence, except in cases where it was seen to have a direct financial consequence.

In more recent times, the impact of Domestic Violence is becoming more acknowledged, not just in parenting matters, but also in property matters.

One of the leading decisions where Domestic Violence was a key consideration in determining a party’s entitlement to the matrimonial property pool is the decision of Marriage of Kennon (1997) 22 Fam LR 1 (Kennon”).

In Kennon, the husband and wife began cohabitation in April 1989, and married in September 1991. They separated in March 1994. The length of the relationship was comparatively short at about 5 years. There were no children of the relationship.

The husband in that matter brought significant wealth into the relationship. At trial he had about $8.7 million in net property in his name, and an annual income of approximately $1 million. Conversely, when the parties commenced cohabitation the wife had net assets in her name of about $49,000 and income of approximately $45,000 per annum. At trial the wife had about $94,500 in net assets in her name, and income of approximately $36,000.00 per annum.

Throughout the relationship, the wife was allegedly the victim of Domestic Violence. The husband was described as prone to fits of rage, usually after excessively consuming alcohol. Physical violence was alleged, and the wife had occasions where she allegedly feared for her safety. She also allegedly developed a psychological injury. Her doctor described her as suffering from “an anxiety state”.

At first instance, in relation to the property settlement, the trial judge awarded sum of $200,000.00 to the wife.

Upon appeal, the majority held that the property settlement award of $200,000.00 was outside the range of reasonable exercise of discretion of the Court, and awarded $700,000.00 instead.

While there a number of factors that led to the Court majority forming this view, one of the considerations was the impact of the Domestic Violence. The Court majority held that there was a “discernible impact upon the contributions of the other party” because of the Domestic Violence during the marriage.

We also note the comments of the Court in Marando v Marando (1997) FLC 92 – 754, decided around the time of Kennon. As described in the headnotes for Marando, “There was evidence, accepted at the trial, that over the period of the marriage the husband abused and denigrated the wife and the children, and gave the wife no assistance with the house or the children over a long period of time, necessitating the wife working especially hard, harder than would be usual in normal situations as a homemaker and parent.” In this regard, these special factors resulted in an increased adjustment of the overall contributions of the wife.

We also note the decisions below following Kennon that have developed the law in this area.

In Kozovski & Kozovski [2009] FMCA fam 1014, His Honour Tom Altobelli (FM) as he then was stated that:

“My real concern, however, is as to the artificiality of a Kennon-type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10 percent or any other figure could possibly be characterised as compensatory because no amount could compensate her for what she experienced at the hands of the husband. On a property pool of about $1.3 million, 10 percent is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. But clearly the adjustment that the Full court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one spouse in persisting with contribution in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon-type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.”

 

In Coad & Coad [2011] Fam CA 622, the husband was incarcerated in prison for “attempting to murder his wife, intentionally causing serious injury to the wife and conduct endangering life in respect of a person who came to her assistance.” In that decision, the wife was awarded 90% of the property pool.

In Coad, Her Honour Justice Bennett stated that “I am satisfied that the injuries inflicted to the wife by the husband made the discharge of her care of the child more onerous than it would otherwise have been. I accept that the wife was seriously disabled in the months after the attempted murder but, very significantly, that she has sustained residual and life long disabilities which cause her pain and interfere with her capacity to work and, presumably, make it more difficult her care for the child.”

What you can do:

For starters, if you are unsafe call 000.

Check out our resources page here.

If you are supporting a victim of domestic violence, check out the advice here.

If you need legal information, try our summary here or Legal Aid Queensland.

Lets all be part of the solution. Violence is never ok. Not Now Not Ever.

For more information about the impact of domestic violence

Call our Business Development Officers and make an appointment to speak with one of our Family Law Team members. Contact us on (07) 3252 0011.

If you have been the victim of domestic violence, or need help, please see our overview of domestic violence information located at https://www.corneyandlind.com.au/resource-centre/brisbane-family-lawyer/domestic-family-violence/

Additional resources and referral options can be found at https://www.corneyandlind.com.au/resource-centre/brisbane-family-lawyer/domestic-family-violence/

This article was written by James Tan (Associate).