“It is important to consider the ‘floodgates’ argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct principles in property matters.”
In 1997, the majority judgment in Kennon accepted that there are some property matters in which a consideration of the consequences of domestic and family violence is necessary. At the same time however, the Court expressed a concern that the application of such a principle to cases which are not exceptional would open the Court to misuse by litigants.
With the introduction of the Family Law Amendment Act 2024 on 10 June 2024, it is now mandated that domestic and family violence will be required to be considered in all property settlement disputes.
The Family Law Amendment Act 2024 has introduced the following considerations:
1. at Section 79(4)(ca), “the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of the party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c); and
2. at Section 79(4)(5)(a), “the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party…”
[1] Kennon & Kennon (1997) Fam LR 1, 24.
These amendments have been necessitated by welcome societal trends and rhetoric surrounding domestic and family violence, and in particular, the impact of victims and their children in post-separation circumstances. Parties who have been subject to domestic violence in intimate partner relationships are often significantly disadvantaged when it comes to the division of matrimonial assets upon marriage or de facto relationship breakdown. This is due to a number of factors, including the significant power imbalance and the characteristically unilateral control of funds by the perpetrating partner. Further, a fear for personal safety and the involvement of children often serves to discourage pursuit of financial entitlement.
However, the Court has had a rather long and complicated history reconciling domestic and family violence with the practical realities of the breakdown of relationships, including complicated dynamics between parties and the appropriate utilisation of limited Court resources.
Until 1975, it was necessary to find “matrimonial fault” for the Court to be able to grant a dissolution of a marriage. In 1958, the Matrimonial Causes Act extended the grounds of divorce to adultery, cruelty, desertion and incurable insanity. The proving of these quasi-offences often required a party to engage in incredulous and undignified investigations, hindering the role of the Courts in providing just and expeditious outcomes. It was unanimous that reform of the law surrounding marriage and divorce was necessary with the introduction of the Family Law Act 1975 (Cth) (FLA).
The Family Law Act 1975 (Cth) (FLA) first introduced the concept of the “no fault divorce”. As a result, parties were no longer required to prove a fault for a dissolution of their marriage.
The only acknowledgement of domestic and family violence in the nascent FLA was an injunctive provision to exclude a spouse from the matrimonial home. This was an intentional move on behalf of the Parliament at the time, with the then Attorney General Lionel Murphy stating in the Second Reading Speech of the Family Law Bill:
“I have given a great deal of thought as to whether there should be another ground to meet the cases where the husband repeatedly comes home from work drunk and beats up his wife and terrifies the children, if not beating them as well. The marriage may well become intolerable for the wife, and yet she cannot physically separate from her husband because there is no-where she can go… however intolerable conduct would of necessity contain an element of fault, and there would have to be an inquiry to satisfy that the respondents conduct was intolerable. This is what we are trying to avoid.”
One year after the introduction of the FLA, the Court heard the matter of Soblusky.[1]Soblusky involved a determination of whether Section 75(2)(o) of the Act allowed the Court to consider the conduct of the parties (including allegations of family violence) in determining an application for spousal maintenance. In determining that conduct of the parties is not relevant to Section 75(2)(o), the Court stated “the fact that in the Family Law Act 1975 there is no express reference to ‘conduct’ of the parties as being a relevant circumstance is striking feature which cannot be ignored”.
[1] In the marriage of Soblusky (1976) FLC 90-124
“Family violence is no longer something the Court can ignore — its impact on contributions and circumstances must now be properly considered.”
With the “no fault” reform, the Court struggled with the relevance of domestic violence in family law matters more generally, and tended to approach it by seeking to ignore it entirely. In 2010, the Honourable John Fogarty spoke to this stating:
“I think the very strong determination was to cut away from the harsh moralistic style of the Matrimonial Causes Act era, and try and model yourself on people who were more dignified. It probably went a bit far in that fault seemed to disappear altogether. This was something that wasn’t recognised at the time. You just simply couldn’t have it in any case, in children’s cases, in property cases, fault being raised at all. Looking back, it was a complete misunderstanding, but an almost universally held misunderstanding”.[1]
This jurisprudence wholly infiltrated family law discourse until Kennon in 1997.
In Kennon, Fogarty and Lindenmayer JJ held that the Court is entitled to take family violence into account in considering the Section 79 contribution factors 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 contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been”.
Although promising, the reality has been that the application of the Kennon principle has been rarely successful and practitioners have encountered problems with the correct application of the “two limbs” formulae.
In the 2009 decision of Kozovska & Kozovski[1], Altobelli J made an adjustment in favour of the Wife under the Kennon principle but made reservations about the principle in practice. He stated:
[1] In the marriage of Soblusky (1976) FLC 90-124
[1] Australian Law Reform Commission, Family Violence: A National Legal Response, Final Report No 114 (2010) 164.
“Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary… My real concern is as to the artificiality of a Kennon type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory, because no amount should compensate her for what she experienced at the hands of her husband…. Clearly the adjustment that the Full Court contemplated in in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.”
It is yet to be seen whether the introduction of the Family Law Amendment Act 2024 is the answer. It is suggested however, that practitioners must give serious and genuine consideration to the application of the amendments in day-to-day practice. Instructions must be taken carefully to ensure that there is a clear connection between conduct and consequence, and matters of family violence should not be raised in a property settlement dispute if there is not.
Equally, practitioners should ensure that any allegations raised actually constitute acts family violence. Even prior to the introduction of the Family Law Amendment Act 2024, the Court has been required to make determinations between parties as to what conduct does, or does not, constitute family violence. The recent matter of Pickford[1](although in the context of a parenting dispute) provides significant guidance in this regard.
If it is the case that the amendments are simply a codification of the Kennon principle, then practitioners should ensure that such considerations remain reserved for the “exceptional” cases where a spouse has persisted with contributions (or been unable to do so) in the face of “enormous and unjustified adversity”.
[1] Kozovska & Kozovski [2009] FMCAfam 1014.
Without doing so, there is a significant risk that the already limited resources of the Court will be spent adjudicating personal disputes between parties, which have little to no impact on the overall property settlement outcome (but likely a very significant impact on any potential future co-parenting relationship, where children are also involved).
Taking from the England and Wales Court of Appeal, as quoted by McLelland DCJ in Pickford:
“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.”
Pickford & Pickford [2024] FedCFamC1A 249
By ensuring that these amendments are approached carefully and with thoughtful consideration, we can ensure that the challenging matters that do require such determinations remain focused and properly dealt with.