Is the Family Court financially punishing those who perpetrate domestic violence? Or has nothing changed?
Statistics reveal that the Gold Coast has the highest rate of incidence of domestic violence than any other region in Queensland. There has been much publicised about the need for shift in community attitudes and greater funding for front line services dealing with what has been described as the greatest social issue currently facing our community.
This article explores the impact of domestic violence on outcomes in financial cases following the breakdown of a marriage or de facto relationship.
A recent Full Court decision of the Family Court of Appeal (Maine & Maine  FamCA 270), highlighted the long standing principle that a party to a marriage who has suffered domestic violence will be entitled to a greater financial settlement in circumstances where it can be demonstrated by the victim spouse that their contributions were made more arduous by virtue of the violence.
The principle was established in the now two decade old case of Kennon v. Kennon  FamCA 27 and in many respects it was a ground breaking case. The Family Law Act 1975 established a no-fault system of divorce in Australia which in effect meant that the Court no longer needed to consider which partner was at fault in the marriage breakdown. Since the enactment of the Family Law Act, up until Kennon, the existence of domestic violence in financial proceedings was deemed irrelevant as it was no longer necessary to establish who was at fault.
Kennon established that the existence of domestic violence was relevant and could mean the perpetrator could receive a lesser financial entitlement than in circumstances where the relationship was devoid of any family violence.
Subsequent cases which followed Kennon have had the effect of making it very difficult to succeed in establishing the principle and as a consequence it is rarely argued on behalf of a spouse who has suffered domestic violence.
The recent Full Court decision though may be the first of many which sees a broadening of the application of the Kennon principle. It was deemed that the evidence of the Wife in that case, wherein she deposed to the Husband’s violence had made it “more difficult” to carry out parenting and household tasks. The Full Court went further to find that the details contained in the Wife’s evidence of the Husband’s conduct would have led to an “inescapable inference” that the contributions were made more onerous and the first instance Judge’s failure to make such inference was an appealable error. This is a far broader application of the Kennon principle – certainly in terms of the evidentiary burden required to meet and make out the claim – and may in fact be a reflection of those changing community attitudes. It would not be the first time that the judiciary is leading the charge in the change of community values.
We have no difficulty in supporting a broader application of the Kennon principle, however our endorsement comes with the caveat of the likely impact that this will have on an already overburdened system, where delays are at historic highs. If the Kennon principle is to be applied more broadly, then this will require further evidence, more trial time, longer Judgments. The impact of domestic violence on a party should be appropriately recognised in a financial matter, but swift access to the Court is important too. It again raises the need for greater funding and resources to be allocated to the Courts acting under the jurisdiction of the Family Law Act.
Has there been a change? The answer is ‘maybe’ and we will need to wait and see how the recent decision of the Full Court is applied. To date, it is yet to be applied in any published decision. So… watch this space.