Domestic Violence is a destructive and prevalent issue in Australia. Were you subject to domestic violence during the marriage, which made an adverse impact on you making less contributions, and had a direct financial consequence? is your case where domestic violence impacts your property settlement?
“Kennon” adjustment, the court made a percentage adjustment in the property division, in favour of the victim of the Domestic Violence.
Case Law:
Kennon and Kennon [1997] FamCA 27 (“Kennon”)
The case was the first case to recognise this principle. Kennon was involved in a 4-year marriage with no children. The Wife claimed that she should receive an additional percentage of the asset pool due to the assault and battery inflicted on her throughout the relationship.
In Kennon, it was established that the following elements must be present in order for a party to receive an adjustment in his or her favour in the determination of property interests on the basis of violence:
The Kennon criteria, a party must prove, on the balance of probabilities, that he or she was subject to a violent ‘course of conduct during the marriage, which had a ‘significant adverse impact’ upon the party’s contributions or, in the alternative, which made those contributions ‘significantly more arduous’.
The Full Court summarised its view by stating:
“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 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 respective contributions.”
Cases following Kennon suggest that:
- there must be evidence of the relevant course of conduct and its impact on the other party’s contributions;
- it is necessary to prove a connection between the violence and contribution; and
- the claim can only be established by probative evidence that satisfies the Court on the balance of probabilities. In Kennon, the Full Court indicated that these principles only apply in “exceptional circumstances” to a “narrow band of cases.”
- Case law also suggests that although violent conduct need not be frequent, a degree of repetition is required.
Kennon is about contribution under s.79(4) Family Law Act, it is not about assessment of future needs under s.75(2) Family Law Act. That is not to say that family violence during a marriage could not also create the basis for a s.75(2) Family Law Act adjustment.
Kozokovski & Kozokovski
Altobelli FM, in a 2009 decision, accepted in that case horrific acts of violence by the husband to the wife, who suffered threats of being killed as she slept, of being burned alive in her home, verbal abuse, being used as target practice by the husband with shoes, cutlery, and other objects, whatever came to hand it seems, of being punched assaulted and generally traumatised on a frequent basis with the most horrific behaviour. Altobelli pondered whether the 10% adjustment sought was a sufficient amount from a pool of $1.3m.
His Honour said:
“The impact of family violence must also be considered in the context of contribution. I would characterize the family violence that the husband perpetrated on the wife during the marriage as falling into the category of coercive controlling violence.”
In finding the wife’s contributions were rendered more onerous through this course of violent conduct, His Honour remarked that he would have considered a higher uplift of 10 per cent if it had been argued, commenting that his
“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.”
The family situation is different from each other. Therefore, the Family Court is to take into account matters that are specific to the family in deciding what kind of property settlement will be just and equitable.
Speak to CFS Legal dedicated lawyers in confidence for Family Law advice. Email: info@cfslegal.com.au.