Australia: Domestic violence in financial cases in the Family Court and Federal Circuit Court of Australia

Last Updated: 21 November 2018
Article by Annette Wilson and Katerina Lonergan

The Family Law Act 1975 established the ​'no fault' divorce principle. This means that, unlike in some other jurisdictions, to establish grounds for divorce, courts do not have to consider which partner is to blame for the breakdown of a marriage.

Where domestic violence can be a factor establishing ​'fault' as grounds for divorce in other jurisdictions, this is not the case in Australia.

Does this mean that domestic violence is not relevant to family law proceedings? Not at all. Domestic violence can definitely be relevant in parenting cases, but this article will look at what the Family Court and Federal Circuit Court have to say about the impact of domestic violence on financial cases.

Relevance of violence to a claim for property settlement adjustment

The Full Court of the Family Court looked at the relevance of violence to a property settlement claim in In the Marriage of Kennon. This case involved a four year marriage with no children.

The court stated:

... where there is a course of violent conduct by one party towards the other during the marriage which ... [has] had a significant adverse impact upon that party's contribution to the marriage, or, ... [has] made his or her contributions significantly more arduous than they ought to have been, ... [this can be taken] into account in assessing the parties' respective contributions within s 79.

To be relevant, the court stated that it must be shown that the violence ​"occurred during the course of the marriage and had a discernible impact" upon a party's contributions.

While the court made an adjustment in favour of the wife on the basis of the impact of violence on her contributions, the specific percentage terms of the adjustment were not set out.

Cases with a specific percentage adjustment on the basis of domestic violence

The court has attempted to quantify the impact of domestic violence on a party's contributions in a number of cases by providing an adjustment of a specific percentage of assets that a party is to receive. For example, in Kozovska & Kozovski, the court made a 10% adjustment to the assets the wife was to receive on the basis of domestic violence perpetrated against her by the husband and the impact this had on her contributions. In Dixon & Dixon, a 20% adjustment was made in favour of the wife in relation to the impact of domestic violence on her contributions.

Appeal allowed where trial judge did not make findings about impact of violence

More recently, the Full Court of the Family Court acknowledged in Maine & Maine that a wife's contributions, particularly as homemaker and parent, were ​"more onerous" because of the husband's drunken violence and abuse over the 20-year relationship, as was set out in the wife's affidavit evidence.

In this case, the wife appealed against orders requiring her to pay the sum of approximately $125,000 to the husband. The parties had separated 11 years earlier, and the husband had transferred his interest in the former matrimonial home six years prior to the court case.

The husband asserted that there was an oral agreement under which the wife was to transfer him $80,000 for his share of the property. This did not occur.

The wife's appeal was allowed and the case was remitted for rehearing on the basis of several factors, including that the trial judge did not make findings as to the impact of violence on the wife's contributions.

Case involving serious violence where no adjustment made

Belmore & Belmore is a recent unreported decision of the Family Court involving a marriage of 31 years with six children. The husband was incarcerated for two and a half years after he was convicted of seriously assaulting the wife. The wife led evidence of other incidents of domestic violence, however the court was not satisfied that the evidence enabled an adjustment in favour of the wife on the basis of Kennon.

The most serious assault, which was able to be established on the evidence and which resulted in the husband's incarceration, occurred after the parties separated. Only violence during the course of the relationship is relevant to a claim for a property settlement adjustment on the basis of Kennon.

High threshold to establish domestic violence impacted contributions

In practice, the threshold is quite high for establishing that a party's contributions were more arduous because they are a victim of domestic violence perpetrated by the other party.

In Kennon, the court noted the floodgates argument in stating that the principles should only apply to ​"exceptional cases" to avoid a situation where the principles may be misused as ​"tactical weapons or for personal attacks". The court noted in Kennon that doing so would return the court to the previous position of establishing ​"fault and misconduct in property matters, a circumstance which proved so debilitating in the past."

Evidence of violence and impact of violence

Where there are contentions that domestic violence has made one person's contributions more onerous, detailed evidence of the violence and its impact will need to be provided. This will likely require independent evidence by a psychologist or psychiatrist. These are difficult cases to run given the high threshold set by the court.

However, the court has shown that it is willing to provide an increased percentage of the asset pool where it is satisfied there is sufficient evidence of domestic violence having made a party's contributions to the assets of a relationship more onerous.

For further information please contact:

Annette Wilson, Partner
Phone: + 61 2 9233 5544
Email: amw@swaab.com.au

Katerina Lonergan, Solicitor

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.

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