Whilst there are currently amendments being debated in the Federal Parliament about family violence being expressly considered in any family law property settlement, currently there is no section in the legislation that expressly requires the Court to consider any family violence that may have occurred in the relationship when determining the ultimate division of assets in family law property settlement matters.
However, this does not mean that the Court will not take domestic/family violence into account and the previously rare circumstances that the Court would do so have slowly become more and more commonplace as the caselaw has developed.
Definition of Family Violence
Pursuant to Section 4AB of the Family Law Act 1975 family violence is defined as meaning violent threatening or other behaviour by a person that coerces or controls a member of that person’s family or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence rather than experiences the affect of family violence.
The definition also helpfully includes a series of examples of what may constitute family violence including assault, stalking, repeated derogatory taunts, intentionally damaging property, or reasonably denying a family member financial autonomy and preventing the family member from making or keeping connections with his or her family friends or culture, amongst other things.
However, more is required than simply the presence of family violence to justify the Court making a monetary/dollar-sum adjustment in favour of the party who has been a victim of family violence.
Kennon Adjustments
Whilst the presence of family violence is neither a negative contribution to the relationship nor is it a future needs factor, the Court has held, most famously in the case of Kennon v Kennon (1997) 22FamLR1, that a monetary adjustment may be made to the victim of family violence under section 75(2)(o) (if you are married) or section 90SF(3)(r) (if you are in a de facto relationship) if certain requirements are met.
Section 75(2)(o) and section 90SF(3)(r) are catch-all sections in the Family Law Act that allow the Court to consider any other fact or circumstance that the Court believes the justice of the case requires to be taken into account in coming to its decision.
To succeed in receiving a Kennon adjustment you must satisfy the following requirements:
1. A course of violent conduct is established;
2. The violent conduct must have a discernible impact on the victim; and
3. The victim’s contributions to the relationship must be made significantly more arduous as a result of the violent conduct.
Initially, the Court held that such an adjustment should be reserved for only the most rare or exceptional circumstances.
However recent Full Court decisions have relaxed those requirements.
In 2019 in the case of Farina and Lofts & Ors (2019) FamCA27 the Court held that you do not need express evidence about how the conduct impacted the victim’s ability to make contributions if the impact can be inferred if the evidence clearly supports it. The Court also went further and said that the term “exceptional” used by the Court in Kennon should not be understood to mean rare but rather has had a significant adverse impact or discernible impact on the party.
In 2023 the Court went a step further in Martell & Martell (2023) FedCFamC1A71 and held that unfortunately, the presence of family violence in Australia is wide and trying to limit its recognition in property cases to exceptional narrative cases has no basis in principle. The Court further held that there does not need to be exceptionally high impact violence, simply a discernible effect on the contributions of the other party and it is now the Court’s position that the adverse effect of the violence on the contributions of a party can be inferred from the lay (not expert) evidence of the party and that there is no need to call evidence to “quantify” that effect.
This does not mean the Court engages in speculation or guesswork when drawing an inference, conclusions still must be the most probable inference and must be based on facts established by admissible evidence.
