Assisted by Marissa Aragona
In determining family law property disputes, a Court must consider each party's contributions to the property pool. That requirement is set out in sections 79(4) and 90SM (4) of the Family Law Act 1975 (Cth) ("the Act") for marriages and de facto relationships respectively.
The case of Kennon v Kennon [1997] contemplated whether family violence could influence the outcome of a property settlement. It was held that sections 75 and 79 of the Act empowered the Court to assess the financial consequences of family violence upon satisfaction of three elements:
- A course of violent conduct must be established;
- The violent conduct must have a discernible impact on the victim; and,
- The victim's contributions to the relationship must be made significantly more arduous as a result of the violent conduct.
In Benson & Drury [2020] FamCAFC, the Full Court of the Family Court of Australia examined the application of the Kennon rule in an appeal by the de facto husband. The question raised by the husband was, "How should a Court assess the contributions of a party which are made more arduous because of the other party's conduct?".
In that case, the parties were in an 11-year de facto relationship, with two teenage children and a net asset pool of over $2,000,000. Both parties submitted that their contributions were equal, save for the husband's initial contribution of a property with approximately $387,000 equity, compared to the wife who owned a property with equity of $108,000 which was later sold and applied to a jointly owned property.
The wife relied on the Kennon rule and claimed that the domestic violence perpetrated against her during the relationship had made her contributions significantly more arduous than they ought to have been. At first instance, the primary judge accepted the wife's submissions that the husband's physical violence had a "debilitating effect" on the wife and satisfied the Kennon test. Her Honour went on to say that the impact of the family violence on the wife made her contributions "all the more arduous", which warranted a 5% adjustment in her favour.
The Full Court, on appeal, held that although the primary judge correctly identified that an adjustment on the basis of the Kennon argument was warranted, her Honour had failed to consider the Kennon argument in a "holistic way". It was held that a correct interpretation of the Kennon argument involves an assessment of the contributions which have been made more arduous against all other contributions, whether direct, indirect, financial, or non-financial. In its reasons, the Full Court relied on the principle in Jabour & Jabour [2019] FamCAFC 78, that it is erroneous to segment or compartmentalise contributions and weigh one against another.
Despite the Full Court's finding that the primary Judge had erred in her application of the Kennon rule, it also found that there was no proper miscarriage of justice in circumstances where the impact of family violence on the wife indeed warranted an adjustment in her favour. The appeal was dismissed with costs of $15,000.
It is imperative for solicitors to understand the application of common law authorities, and the potential impact that family violence may have on property settlements in family law proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
