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Weight of Family Violence in Property Cases

by | Jul 29, 2019 | Family Law

Domestic violence is a prevalent issue in Australia, and globally. The detrimental effects on victims of domestic violence can be long lasting and should be acknowledged.

We have a long standing ‘no fault’ jurisdiction under the Family Law Act 1975 in Australia and for many years, the relevance of family violence incidents was rejected when determining a just and equitable alteration of property interests in family law matters. However impact of family violence in property settlement cases was brought back into the spotlight in the decision of Kennon & Kennon.

In that case, the Full Court on appeal held that the wife, being a victim of family violence, was entitled to an ‘uplift’ in her property settlement by $700,000. The Full Court found that family violence during a relationship ought to be taken into account in assessing a party’s contribution. More specifically, whether a course of violent conduct by one party towards the other either had a significant adverse impact on that party’s contributions to the marriage, or made that party’s contributions significantly more arduous than they might otherwise have been.

Since Kennon, the Courts have required very strict and detailed evidence when assessing ‘Kennon’ argument. Many family violence victims for many years still faced practical and legal difficulties in obtaining an adjustment as a result of the strict evidentiary requirements.

However, the recent case of Britt & Britt appears to have significantly lowered the evidentiary barriers in property matters relating to family violence.

In Britt & Britt, the wife asserted the husband had committed repeated and severe acts of family violence against her and sought to receive an adjustment as a result. The trial judge held that the wife’s evidence was inadmissible as the evidence was not in ‘proper form’ or ‘just too general’, and that the wife’s evidence failed to particularise the effect of the violence on the wife’s contributions and therefore questions of relevance arose.

However, the Full Court rejected the trial judge’s findings and instead held that the evidence was admissible as it could rationally affect the assessment of the existence of family violence, which led to the wife’s contributions becoming more onerous. The Full Court held that in addition to being relevant to an adjustment of contributions (as per Kennon), evidence as to family violence can be relevant to provide context to other evidence, such as to the relationship between the parties, particularly the actions taken by the parties in their financial relationship and also the credibility of each party.

The decision in Britt appears to have widened the circumstances in which family violence victims can seek an adjustment in their property settlement entitlements or bring up issues of family violence, including how they might affect credibility in other areas.

At Nevett Ford Lawyers Melbourne, our family law team understands the negative impact of family violence on victims, particularly in parenting as well as in a matrimonial property settlement matter. Whilst allegations of family violence may not be easy to prove or provide evidence about, or even to recall, the weight attached to them may have an non-inconsequential impact on the ultimate result in property proceedings. If you have experienced family violence in your relationship and would like to know your rights, please do not hesitate to get in touch with one of our friendly Family Lawyers.