Family Violence in Property Matters Post-Keating v Keating

The Family Law Act 1975 sets out the factors the court must consider in relation to family law property settlements. These include the financial and non-financial contributions that have been made by each party and the earning capacity of each party. A body of case law has developed as to how the court should adjust a property settlement where there has been family violence by one party against the other. This issue was considered by the Family Court of Australia in the 2019 decision of Keating v Keating. This article examines family violence considerations in property settlements post-Keating v Keating.

Kennon v Kennon

In the 1997 case of Kennon v Kennon, the court determined that the provisions of the Family Law Act that set out how property is to be adjusted after a separation could be used to consider the impact of family violence on a property settlement so long as the three elements are satisfied.

These are:

• A course of violent conduct can be established.
• The violent conduct had a discernible impact on the victim; and
• The victim’s contributions to the marriage or relationship were significantly more arduous because of family violence.

Whilst this was a step forward in recognising the impact of family violence on a relationship and considering its impact on a property settlement, the case has been criticised.

The Kennon v Kennon judgment was clear that it was not sufficient for a party experiencing family violence to make generalised allegations of violence. It was necessary for the victim to provide detailed information with respect to each allegation of violence. Only if the violence could be proven and there was an established causal relationship between the acts of violence and their impact on the victim’s ability to make contributions to the relationship would there be an adjustment made on account of the family violence.

The judgment was also criticised for failing to consider the complexities and long-term effects of family violence on the victim/s and the lack of clarity with respect to the meaning of “discernible impact”, “course of conduct” and “violent conduct”. Further, proving of family violence is difficult as there is rarely an independent witness.

Keating v Keating

Recently, the Full Court of the Family Court determined that the judgement in Kennon v Kennon should not be interpreted as “laying down a hard and fast rule that post separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant”.

In the 2019 decision of Keating & Keating [2019] FamCAFC 46 the wife sought an adjustment in her favour in the property settlement based on the fact that that family violence had a significant adverse impact on her ability to contribute to the marriage.

The wife gave evidence that she had been exposed to several incidents of significant family violence by the husband during their relationship and after their relationship had ended. The husband denied all allegations of family violence, bar one incident that occurred some ten years before trial.

The trial judge took the view that the wife provided insufficient evidence to satisfy the court that the family violence made her contributions more onerous. The wife appealed this decision and the matter proceeded to the Full Court of the Family Court. The judges considered the 2003 case of Spagnardi v Spagnardi, where it was determined to be necessary to provide evidence to:

• Establish the incidence of family violence;
• Establish the effect of family violence; and
• To enable the court to quantify the effect of the family violence upon the capacity of a party to contribute.

The Judges considered the concept of “quantification” and noted that this suggested that the evidence of the victim spouse must be corroborated by expert evidence. The Judges confirmed that this should not be the case and the evidence from the victim spouse does not require corroboration with an expert before if can be accepted.

The decision set out that “it is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted.” The Full Court said in Amador & Amador (2009) 43 Fam LR 268:

Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.

The Full Court determined that the focus in matters of family violence should be on the “discernible impact” of the family violence rather than any lack of evidence allowing “quantification” of the impact. However, the Full Court could not make a conclusive decision that the trial Judge decision not to make a “Kennon” type adjustment was wrong due to the absence of a transcript in that matter. On this basis, Kennon remains good law, but the guidelines set out in that case are reserved for what the Full Court called a “relatively narrow band of cases.”

The wife’s appeal in Keating v Keating was successful and the matter was remitted to the Federal Circuit Court for rehearing.

It will now be seen whether the decision of Keating v Keating will result in an increased number of “Kennon” arguments being advanced..

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