[The following is a paper delivered to the Cairns Family Lawyers in November, 2015.]
It has long been recognised that domestic violence is unacceptable and has an impact in family law proceedings, both in child matters and property division.
Family violence is a scourge on society and not restricted to any particular socio economic group. Some groups of society seem to bear the impact of family violence more heavily than others, particularly where lower levels of education seem to be prevalent. This may be a perception as members of these socio economic groups tend to be more visible in the Domestic Violence courts. There are many studies showing the psychological impact on children exposed to family violence during their formative years, and the impact family violence has on spouses who are the victims of such family violence. I do not propose to reflect on those studies here.
What I propose doing in the next 15 minutes, is to discuss what the impact of family violence may have in property division.
The no fault principle would seem at odds with taking into account conduct in property division.
Soblusky & Soblusky (1976) FLC 90-124, a very early decision in the development of the law pursuant to the then newly enacted Family Law Act, concluded that conduct was not relevant, at least in the context of spousal maintenance. This was later held to be good law in a case familiar to us all, Kennon & Kennon (1997) FLC 92-757.
In Kennon & Kennon a Full Court decision, made it clear that the presence of domestic violence is a matter of relevance in property division. No claim was made by the wife for spousal maintenance. In obiter comments, the court declared that spousal maintenance was concerned essentially with issues of need and capacity
Kennon & Kennon rejected the concept of domestic violence being a negative contribution to the welfare of the family as had been argued in earlier cases. However, Kennon & Kennon was the first decision of the Full Court to recognise that violence is relevant in s. 79 proceedings.
Although the case is well known to practitioners, nevertheless, it is instructive to reflect on the principle that is drawn from that case, a principle that is often confused by practitioners seeking to have domestic violence brought into account in s. 79 proceedings.
Kennon & Kennon has two limbs, the first limb being violent conduct from one spouse towards the other during the marriage.
The second and in my view often overlooked, is the need to prove that adverse impact results from that course of conduct.
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.
Their Honours went on to consider the impact ‘opening the floodgates’ might cause and noted the principles should only apply to exceptional cases, referring to ‘the relatively narrow band of cases’ to which these considerations apply.
Their honours made the point that it was essential to show that:
- The conduct happened during the course of the marriage; and
- Had a discernible impact on the contributions of the other party
Specifically their Honours held that it was not directed to conduct which did not have that effect, and thus made a clear point to practitioners not to take a routine approach of including allegations of domestic violence in applications under s. 79.
Interestingly their Honours noted:
In the above formulation [of the principle] we have referred only to domestic violence, but its application is not limited to that.
Kennon & Kennon has been followed in numerous cases since and the law continues to develop. The consideration of the Kennon & Kennon argument is a discretionary one for the court.
How is such a consideration being translated into a property division?
Altobelli FM, in Kozokovski && Kozokovski, 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 the 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:
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 1% or any other figure . . . could compensate her for what she experienced at the hands of the husband.”
His Honour also pondered whether greater thought needs to be given to Kennon-type adjustments, with more transparency. That is a matter for the legislators, but certainly given such a scenario, it must offend our own sense of justice and equity.
This case fell within the exceptional.
It is not difficult to envisage where a course of conduct has made contributions more arduous. Caring for a family while recovering from a broken limb as a result of an assault inflicted by a spouse, is readily discernible. But what of the more sinister forms of domestic violence, the hidden offences?
Domestic violence by its nature, is committed within the confines of the family home. Few victims have witnesses they can call upon to give evidence of the behaviour.
The issue of how to treat ongoing domestic violence over a long marriage continues to trouble the court.
Practitioners should note that a Kennon & Kennon claim relates to contributions under section 79 (4). It is not generally considered under section 75 (2) which references future needs.
The courts have taken the approach in matters where there are findings of equal contribution to then go on to consider inappropriate circumstances, whether a Kennon & Kennon adjustment ought be made.
Kucera & Kucera [2009[FMCA] Fam 1032 an earlier decision of Altobelli, provided an uplift of 15% in the property pool of $600,000.
In that case where contributions were considered to be equal in a very long marriage, there had been acts of extreme family violence towards the wife in front of and also to the children of the marriage, over a prolonged period of time. Reading of the decision in this case, which includes extracts of the transcript, indicates that neither the wife nor the husband used English as their first language. One wonders whether the difficulty in communication may have led to the wife in this case being more isolated from the community and supports, although perhaps not as she sought assistance from her medical practitioner for the numerous injuries sustained. One could surmise from the limited information available that seeking medical treatment is one being and seeking protection with another.
In that case it was submitted for the wife that an uplift of between 10 and 15% should be awarded. It was submitted the claim had been particularised and proved in an uncommon way for these types of cases. His Honour accepted
that the evidence indicates that the husband’s conduct amounted to coercive controlling violence.”
Unsurprisingly, counsel for the husband submitted that the Kennon claim needed to be considered in the very conservative manner mandated by the Full Court in its decision and that it could not amount to any more than 5% uplift for the wife.
His Honour agreed that a conservative approach was appropriate for the policy reasons articulated clearly by the Full Court in Kennon & Kennon, but found even on a conservative application, on the facts of that particular case the wife’s range was appropriate. He found not only unequivocal evidence of family violence but also found the physical and mental impact on the wife was evident, therefore, finding an adverse impact. His Honour’s finding was assisted by the medical evidence as to the wife’s existing medical condition
His Honour found in that case there was adequate evidence to establish the casual link between the family violence and the wife’s contribution being rendered more arduous. This evidence was that of the wife, her daughters and that of her medical Practitioner.
His Honour also noted:
In my opinion Kennon principles operate retrospectively, and not prospectively.
In other words the Full Court in Kennon seems to have emphasised that it is a contribution-based assessment, not a future-needs related assessment.
The issue is to what extent was contribution during the marriage rendered more arduous, not to what extent family violence during the marriage creates future needs.
Kennon is about contribution under s.79(4), it is not about assessment of future needs under s.75(2). That is not to say that family violence during a marriage could not also create the basis for a s.75(2) adjustment, but the rationale for this is s.75(2), not the Full Court’s decision in Kennon. Thus the fact that the wife appears to have prospered after the end of a violent relationship does not affect the assessment of contribution during the relationship.”
The cases I have referred to above refer to female victims of family violence which in my observation are the overwhelming observable cases. However, males are not immune from being victims of family violence. They are more averse however, to reporting acts of domestic violence or seeking Protection Orders, perhaps because they feel or at least gain the impression that it is somehow an admission of weakness on their part to seek the protection of the Courts.
I have the benefit of a transcript of a recent unreported decision made by Her Honour Judge Willis when she sat in Sydney on a case where there were competing allegations of domestic violence by both parties, the wife abandoning her Kennon & Kennon claim against the husband during trial.
In that case, Her Honour was called upon to exercise her discretion and award the respondent husband 10 per cent uplift for a Kennon argument
in relation to the difficulty in his making contributions given what he says he was subjected to on and off throughout the marriage.”
Her Honour carefully considered the wife’s allegations of violence towards her by the husband. Throughout the marriage the wife claimed to be in fear of the husband but Her Honour found to the contrary.
Her Honour noted:
I had a strong impression that the wife is a very threatening and volatile woman who has caused a lot of disharmony, grief, conflict, fear and intimidation towards the husband and at times the children of the marriage and the husband’s sister.”
The wife’s performance in the witness box apparently did her no credit and evidence given of the wife’s volatile behaviour not only during the relationship but following separation which occurred some years before, led Her Honour to the conclusion that the wife was an exceptionally poor witness. Her Honour’s observation of the wife’s hostility towards the husband and his family in the court room gave Her Honour an understanding of why the family was fearful of the wife and that those fears had valid reasons.
During the trial incidents were raised of the wife’s behaviour punching and yelling at the husband when an argument between the husband and wife descended into a physical altercation between the wife and her mother-in-law, there was police involvement where the wife Interestingly enough, ran over a police officer’s foot in a misguided and obviously alcohol fuelled attempt to escape, ultimately ending in a car crash. The motor vehicle overturned. I make the assumption that car crashes and alcohol lead to loss of insurance cover and thus financial loss to the family.
In short, the husband’s evidence related a prolonged period, some 10 to 12 years at least, of verbal abuse and physical abuse by the wife, of furniture being smashed and a Protection Order being made.
While the wife’s harassment of the husband continued following separation, Her Honour did not take into account in terms of contribution, post separation harassment which continued for some years, eventually leading to the husband having a stroke, she merely noted it continued for years. As if he hadn’t had enough to contend with, Poor chap, he also had cancer, which at the time of trial was in remission.
In terms of exercising her discretion, Her Honour accepted that the wife’s conduct resulted in the husband’s parenting contributions and contributions to the welfare of family being made more difficult and onerous due to the wife’s violent and unpredictable conduct.
Her Honour also formed the
strong impression the wife had not retreated in any way from her vendetta against the husband even now some 8 years later.”
Her Honour was satisfied that there was a course of conduct throughout much of the 20 year relationship “Where the wife acted violently towards the husband and also to the joint property and their children” which conduct made the husband’s contributions extremely difficult and more onerous. Her Honour also found the conduct “literally caused financial loss with the smashing of various household items damage to the house and damage to a motor vehicle. Her Honour was satisfied that there was enough in the wife’s behaviour to satisfy the criteria referred to in Kennon & Kennon and awarded an uplift of 5% to the husband making an assessment of 55% to the husband 45% to the wife of the matrimonial pool which omitted an inheritance received by the husband.
So is the court deterring, punishing, , censoring or insuring against future need? In the cases referred to above, it would offend our sense of justice and equity if an adjustment in the victim’s favour was not made.
The Court has discretion in section 79 and assessing the relative contributions falls within that ambit. Drafting legislation specifically directed towards the treatment of domestic violence is likely to be problematic and a problem for the legislators.
However any legislative change would send a clear message that family violence will not be tolerated. That is a matter for the legislators and perhaps one we as family lawyers should seek to influence.
In conclusion, It is to be remembered that cases falling within the ambit of the Kennon & Kennon range are exceptional cases, and that by applying the principles of Kennon & Kennon in a section 79 (4) application, in order for the court to an exercise its discretion and apply the Kennon & Kennon principle there must be:
- 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 contribution to the marriage.
This paper is designed to provide information and opinion about the subject matters covered. The paper is not intended to be comprehensive nor does it provide legal advice. The writer has attempted to ensure the content is current but does not guarantee its currency. Should legal advice be required professional advice should be sought before acting or relying on anything in this paper.