The Full Court of the Family Court handed down a landmark decision, In the marriage
of Kennon (1977) 22 Fam LR 1, which allowed courts to take into account domestic
violence when determining the division of property between partners.
However, the contributions of domestic violence victims will only be taken into
account, rather than those of the perpetrator of the violence. The court has discretion
to place additional weight on the victim’s contribution. This discretion is only
exercised in exceptional circumstances and pursuant to s 79 of the Family Law Act
1975 (Cth).
In determining the exceptional circumstances, the court may consider whether one
party in a marriage engages in a ‘course of violent conduct’ that has a ‘significant
adverse impact’ on their contributions, or which has made their contributions ‘more
arduous than they should have been.’ Debate has ensued as to whether these are two
separate limbs or whether they are the same principle, expressed in a different
way.
Nevertheless, the nexus between the conduct and contribution is quite strict, in
that the conduct must have a ‘discernable impact’ upon the contributions of the
other party. Indeed, the onus is on the victim to establish this nexus, which has
been criticised as being erroneous.
In Stevens v Stevens [2005] FamCA 1304 the notion of in the ‘course of conduct’
was given a wide interpretation to an extent that time-length or repetition are
not necessarily determinative. A possible way the conduct of a perpetrator could
have a ‘significant adverse impact’ may be ascertained from the psychological and
physical distress such conflict inflicts.
The Family Law Council has suggested that the approach in Kennon should be expanded
upon, especially to allow the court to consider contributions of the perpetrator,
rather than solely the victim.[1] This is often termed as “negative contribution”
and would ultimately see less weight placed on contributions made a domestic violence
perpetrator. The Full Court of the Family Court in Kennon specifically refused to
adopt this approach.
Despite the confusion created by Kennon, the principles espoused by the court continue
to be applied; most recently in June 2010 in the case of Whelan v Whelan [2010]
FamCA 530.
[1]
Family Law Council, Violence and Property Proceedings (14 August 2001) Attorney-General’s
Department
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