Property settlement contributions are significant where there is family violence

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The case of Gillard & Gillard and Anor[1] is a recent property settlement decision of the Family Court of Australia. The decision is particularly interesting as it applies a principle that is not widely considered in property settlements. In this case the wife relied on the Kennon principle to argue that she was entitled to a greater share in the property pool because her contributions were made significantly more arduous due to family violence.

The Story

Mr Gillard (66 years old) and Ms Gillard (64 years old) commenced cohabitation and were married in 1974. They have three adult children together. The parties separated on 27 September 2010 and divorced on 31 December 2011. Two of the most significant issues in the case were the wife’s Kennon claim and the husband’s truthfulness as to his financial position.

The wife sought a 70/30 division of the assets. The husband sought a 50/50 division of the assets.

The Court was required to determine what order adjusting the property, assets and liabilities of the parties was just and equitable in the circumstances.

The Decision

The Kennon Claim

The Full Court in Kennon & Kennon[2] said:

‘… where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.’

Both children gave evidence of their father’s violent history both towards them and their mother. The wife’s treating psychiatrist also gave evidence that her difficult home life had contributed and had in fact been significant to her depression and anxiety. The Court accepted the wife’s assertion and inferred that the proven history of the husband’s violence meant that the wife’s contributions as homemaker and parent were made significantly more arduous as a result of the husband’s conduct. In light of this the Court made a further 7.5% adjustment in the wife’s favour.

Future needs – s 79(4)(d)-(g) matters

The wife was in remission for cancer and was still suffering from long standing difficulties with depression and anxiety.  The husband whilst at a retirement age still had earning capacity and importantly had failed to make full and frank disclosure of how he was currently exercising this earning capacity. The husband had also not been truthful about his involvement in activities and processes carried out by a number of businesses, including receiving royalties from the sale of intellectual property, from which he had benefited. For these reasons a further 5% adjustment was made in favour of the wife.

The final order for the division of assets was 72.5% to the wife and 27.5% to the husband.

Lessons

All family situations are different. That is why the Court is willing to take into account matters that are specific to families in deciding what kind of property settlement will be just and equitable. In this case this meant taking into account the principles from Kennon in determining how much weight should be given to the wife’s contribution. The Court found that a just and equitable order required her contributions as homemaker and parent to be considered significantly more arduous as a result of the husband’s conduct both towards her and her children.

[1] [2016] FamCA 841.

[2] [1997] FamCA 27.

For more information regarding Property Settlement Family Violence

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