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Relevance of Family Violence in Property Settlement


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter Magee

Section 79(4) and section 90SM(4) of the Family Law Act 1975 (Cth) sets out the factors the Court takes into account when determining the contributions each party has made to the net property pool available for distribution for the property split between married couples. There are mirror sections which deal with the distribution of property split between de facto couples. The contribution, whether direct or indirect, needs to relate to the acquisition, conservation or improvement of any of the property of the parties.

The existence of family violence during a relationship perpetrated by one party towards another can be considered as part of the Court’s analysis of the contributions each party has made to the relationship. Family violence is broadly defined in section 4AB of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”

Whilst the existence of family violence alone is not a direct or indirect contribution, the Court looks to the impact the family violence has had on the ability of the party who is the victim to family violence being able to contribute to the property pool. That is, the ability to contribute is made more arduous due to the family violence and its effects.

The case of Kennon and Kennon [1997] FamCA 27 (“Kennon”) was the first case to recognise this principle, and set out that a party needs to provide evidence to prove on the balance of probabilities that:

  • That a violent course of conduct existed;
  • Such conduct existed during the marriage/defacto relationship; and
  • The violence had a significant adverse impact upon the victim party’s contributions to the marriage or made those contributions significantly more arduous.

Whilst evidence of the above may, unfortunately, be exist in many property settlement matters that come before the Family Court of Australia or the Federal Circuit Court, there should be strong emphasis on “significant adverse/discernible impact…” The case of Kozovski & Kozovski [2009] FMCAfam 1014 also noted the circumstances where family violence may be relevant is “extraordinary efforts” by a person “in persisting with contribution in the face of enormous and unjustified adversity”.

Examples of this situation occurring may be:

  • Being unable to engage in employment and have an income due to the control of the other party;
  • Suffering from depression, post-traumatic stress or another form of mental illness that makes it too difficult to undertake work to contribute, whether it be engaging in paid employment or undertaking household chores or parenting duties on a daily basis; and
  • Physical injuries that makes it too difficult to undertake work to contribute, whether it be engaging in paid employment or undertaking household chores or parenting duties on a daily basis.

These may be common examples of the effect of family violence, however, the evidence and facts should be evaluated on a case by case basis to determine whether the high Kennon threshold is met.

Our family law team at Armstrong Legal have particular expertise in dealing with matters involving family violence or allegations of family violence. If you are facing these circumstances, please contact us to hear how we can assist you.



where to next?

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Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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