Family Violence and Property Proceedings in the Family Court
When finalising a property settlement, the Courts in Australia will consider whether either of the separated partners have any needs such as the care of children or the cost of re-training to secure employment. There may be an adjustment in the division of the former couple’s assets to make allowance for such needs.
There are also special cases where the Court will take into account the effect that family violence has had on one partner’s ability to make financial and/or non-financial contributions to the marriage or de facto relationship. This may in turn have an effect on that partner’s needs after separation and therefore result in an adjustment in the final settlement made by the Court. Such an application is called a “Kennon” argument.
What is a ‘Kennon’ Adjustment?
When raising a ‘Kennon’ argument in property proceedings, you must satisfy the Court that there was a course of violent and abusive conduct by your former partner towards you during the relationship and that this conduct was so extreme that it had a significantly negative impact on your contribution to the marriage.
It is extremely difficult to reach the threshold of extreme violence over the course of a relationship and to sustain the argument that this had a negative impact on the contribution of the victim and to in turn have this reflected in an adjustment to the division of the property pool of the parties.
Affidavit in Support
When going through the process of property proceedings, you will support your application for a settlement by filing an Affidavit which sets out evidence of the history of the relationship, any children and the financial and non-financial contribution you made to the relationship.
If you are alleging domestic violence, you will include incidents of that abuse. You will also detail how the abuse affected your ability to maintain the home, a job, care for the children or any other contributions you made. If the physical, emotional, sexual or verbal abuse was so severe that it made your efforts to contribute even more onerous, then you will explain the causal link between the abuse and its negative impact.
Eaton & Eaton [2020] FamCA 446
In June 2020, our client was successful in having her evidence of abuse accepted by the Court.
The wife in support of her ‘Kennon’ adjustment in the property proceedings, filed an Affidavit alleging conduct by the husband of serious physical, sexual and emotional abuse.
The husband sought a ruling from the Court to strike out all references to the alleged conduct.
The Queen’s Counsel for the Husband had a two-pronged argument:
That the wife had failed to demonstrate that her case fell within the “relatively narrow band of cases” that would make her allegations admissible in the case as she had failed to demonstrate a nexus between the alleged conduct and the contributions she asserted she made to the marriage; and
That the wife’s evidence did not have sufficient probative relevance to have any real impact on the proceedings and should therefore be excluded.
The husband wanted to ensure that the ‘Kennon’ argument would fail and that he would therefore not have to provide a response to our client’s affidavit.
Our Argument in Support of the Wife’s ‘Kennon’ Claim
Our Senior Counsel for the wife countered that the wife’s evidence was admissible because it was relevant to 3 issues in her case:
The nature, quality and features of the wife’s contributions;
The principles established in the Kennon case which relate to the wife’s claim;
The factual basis for the expert opinion evidence of the psychiatric health of the wife.
Senior Counsel submitted that the evidence needs to be seen in the context of all the facts of the case and that if evidence is rejected too early in proceedings before all the evidence has been gathered, there is the danger that the full claim will be dismissed. This in turn would constitute a denial of natural justice for the wife if her whole case is dismissed before it is heard in its entirety. If any of the evidence cannot be sustained during the hearing then it should be rejected but to reject it before it has been heard and tested would be unfair to our client.
Our Senior Counsel went on that as the Court had appointed a psychiatrist to provide an expert report on the wife’s state of mental health, then the psychiatrist should have access to all the evidence.
In addition, Senior Counsel submitted that just because the evidence in the wife’s affidavit tended to be unfavourable to the husband that did not mean that it should be considered unfairly prejudicial.
The Decision
The Judge opined that during his career of over 30 years, he had rarely come across a case which would approach the level of seriousness required by a Kennon application. However, he determined that our client’s case did satisfy that threshold of seriousness during the course of the marriage, not just as isolated incidents but as a course of conduct throughout. Our client’s application therefore was in the category of ‘exceptional’ cases.
The Court rejected the Husband’s application to strike out the evidence of abuse in the Wife’s Affidavit.
Property Settlement and Violence
The Family Court takes allegations of family violence very seriously. If the contributions you made during your relationship were made even more onerous by the violence of your former partner, you may be able to apply to have a financial adjustment made in your property settlement to allow for this negative impact. The Court will consider whether you will have greater difficulty in returning to the workforce, whether you will have the care of children, whether you will need re-training and what this will cost you.
If you are contemplating settling your financial and family law matters please do not hesitate to contact us so that we can guide you through the process and help you assess the best way forward to meet your needs.
This article is for information only and does not constitute legal advice.