Given the increasing nature and concern for domestic and family violence, there has become a progressively problematic approach as to how the Family Court is best to determine the impact of Family Violence in respect of property settlement proceedings. Much to this, there is elements of overlap that exists between the jurisdictions of the state courts and the Family Court. It has been unclear for some time as to the relevance of family violence in property proceedings and the impact of these consideration on the overarching philosophy of no-fault that the Family Law Act 1975 (Cth) adopts.
The Legislation
In that respect, section 79 (4)(c) of the Act provides for the Court to consider the contributions of either party to the overall welfare of the family. Further, section 75 (2) of the Act requires the Court to consider a range of factors, mainly financial, but expanding to the physical and mental capacities of the parties to obtain gainful employment.
Case Law
In the decision of In the Marriage of Kennon (Kennon) (1997) PLC 92-757, the Full Court of the Family Court handed down its decision and, in so, altering the Court’s cemented approach, accepting that domestic and family violence may also be a necessary factor to take into account when assessing a victim’s contributions to the welfare of the family and any difficulties that may arise.
The Court in Devon [2014] FCCA 1566 considered the principles outlined in Kennon, in that it gave weight to the difficulties that were caused to the wife in carrying out her role in the marriage, and, further, to the issues of the wife’s current health and capacity to obtain gainful employment.
What does this mean for you?
The Kennon decision does propose a number of difficulties and impracticalities, in that the discernible impact cannot be immediately apparent to the Court, nor can it be determinate to the impact that has occurred to the victim. There also remains the question as to quantification and the cogitative principles to determine the adjustment in the victim’s favour.
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