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. This article talks about cases where domestic violence impacts property settlement.
This is illustrated in these cases:
1. The Kennon decision
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.”
2. Gillard v Gillard & Anor
The case of Gillard & Gillard and Anor[1] is another 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.
What to do:
- For starters, if you are unsafe call 000.
- 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.
Still have questions regarding domestic violence and property settlement?
Talking about domestic violence is a difficult exercise for survivors, especially if you have recently left the known environment . If you’re fearful or still want an understanding of how domestic violence affects property settlement, contact our team to make an appointment with our family law team today.
Footnotes
[1] [2016] FamCA 841.
[2] [1997] FamCA 27.