Family violence and the impact on property settlement entitlements
So how does a court take into account allegations of violence?
Does the court make any adjustment in favour of the party who has suffered from the alleged violence?
In 1997 the case of Kennon v Kennon the issues of family violence and property settlement were explored. The parties had a short term relationship of some 5 years with no children. Following separation the wife instituted proceedings for property settlement and filed an application seeking an award for damages for assaults alleged to have taken place during the marriage.
The Full Court of the Family Court concluded that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage, or, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact that a trial judge is entitled to take into account in assessing the parties’ respective contributions within section 79 Family Law Act.
Each case turns on its own facts, but the essence is that the trial judge is entitled to take conduct into account and decide whether or not an additional adjustment should be given to the party who has been assaulted provided that there is demonstrated that the facts fall within the narrow ambit of Kennon v Kennon. It is essential to provide evidence as to how the husband’s conduct affected the wife’s ability to contribute (2003 Spagnardi & Spagnardi)
Examples of any such adjustment could include:
- Coercive controlling violence including threats to kill the wife, physical assaults including stabbing and attempted strangulation (2011 Kozovski v Kozovski)
- Incarceration of the husband for attempted murder of the wife intentionally causing serious injury to the wife with ongoing disabilities (2011 Coad v Coad)
- Family violence perpetrated after separation including threats to kill and burn the house down (2016 Jarvis v Seymour)
- The wife alleged that the family violence perpetrated against her and the children made her parenting contribution more arduous due to the impact that the husband’s behaviour had on the children and subsequent behavioural difficulties exhibited by them (2018 Shah v Duras)