In 1997, the Full Court of the Family Court in the decision of Kennon & Kennon (1997) FLC92-757 (‘Kennon’) determined that family violence may be taken into account when assessing a victim’s contributions to a marriage.

Family violence and property settlements

Theoretically, there are two avenues for domestic/family violence to be relevant in a consideration as to whether to make an adjustment in family law property proceedings. S79(4) of the Family Law Act 1975 (Cth) (‘the Act’) requires the Court to take into account, amongst other things, the contributions made by the parties and their future needs factors (so far as they are relevant). The nexus between domestic/family violence and s. 75 (2) future needs is clearer; if a party to a marriage or de facto relationship were to so violently injure the other party that the victim’s ability to work and prospects of employment were affected, it is likely that an adjustment would be made. However, prior to Kennon, the nexus between domestic/family violence and contributions was not so clear.

The decision in Kennon

In Kennon, the wife made seven specific allegations of physical violence perpetuated by the husband who had a significantly higher income than her. She sought a property adjustment in her favour. Fogarty and Lindenmayer JJ held that sections 75 and 79 of the Act could be used to assessing the impact of domestic/family violence on the victim’s contributions to the marriage if the following elements could be satisfied:

  1. A course of violent conduct by one party towards the other during the marriage (or relationship);
  2. This conduct had a significantly adverse or negative impact on the party’s contributions to the marriage; or
  3. The conduct had made the party’s contribution significantly more difficult than they ought to have been.

Whilst no guidance was provided on how to prove such ‘discernible impact’, their Honours confirmed that a link between the perpetrator’s violence and the victim’s contribution must be established.   

Pivotally, the Full Court stated that these principles ought only to apply to “exceptional cases”.

Case Law: How has Kennon been interpreted and applied by the Courts

Since the landmark case of Kennon, the Courts have considered and refined many of the principles that were initially determined.

Exceptional Cases

In 2002, the Full Court clarified the meaning of “exceptional” in the decision of S & S [2003] FamCA 905 (‘S & S’). In S & S, their Honours affirmed the finding of the trial judge that it is not necessarily correct to confine Kennon type arguments only to cases involving “exceptional” violence. Contrarily, the key considerations are whether the violence suffered has had a “significant adverse impact” or “discernible impact” upon the victim’s contributions. Therefore, S & S has seemingly lowered the threshold and widened the scope of cases where a Kennon argument could be made.

Course of Conduct

In 2005, the Full Court clarified the meaning of “course of conduct” in the case of Stevens & Stevens (2005) FLC 93-246 (‘Stevens’). In Stevens, their Honours determined that the term “course of conduct” is to be interpreted broadly. Their Honours decided that the threshold for frequency need not necessarily be elevated to strictly constitute a course of conduct, however, some degree of repetition would obviously be required.

Post-Separation Violence

In 2012, the Full Court held in the decision of Baranski & Baranski (2012) 259 FLR 122 (‘Baranski’) that violence that has occurred in the post-separation period may also be relevant to an assessment of a party’s contributions. Therefore, Baranski has seemingly extended the historic requirement that the violence has to occur during the marriage (or de facto relationship).

Evidentiary Issues

A significant issue for victims of family violence to overcome is the fact that typically such violence occurs behind closed doors and that it is generally difficult to tender sufficient evidence of same to satisfy admissibility requirements in Court proceedings. Recently, in 2017, the Full Court in the decision of Britt & Britt (2017) FLC 93-764 (‘Britt’) appeared to lower the stringent evidentiary requirements with respect to family violence.

Their honours held that evidence that is probative, even slightly probative, will be admissible because it could rationally affect the determination of an issue. Their Honours also confirmed that evidence of family violence could also be relevant to other issues including: providing context to other evidence, providing evidence as to the relationship, and/or the credibility of the parties.

How should a Court assess a victim’s contributions?

In the recent case of Benson & Drury [2020] FamCAFC (‘Benson’), the Full Court determined that in assessing a victim’s contributions that have been made more arduous as a result of family violence, the judge is to consider the Kennon argument in a “holistic” way. In Benson, their Honours held that a consideration of a Kennon argument requires an assessment of the contributions that have been made more arduous against all other contributions, including direct, indirect, financial, and non-financial.

What is a Kennon argument?

A Kennon argument is an argument that family violence perpetrated by one party has made the contributions of the other party more ‘arduous’ and that family violence has had a ‘significant adverse impact’ on that party’s contributions  to the marriage or de facto relationship specifically the contributions made under s 79 (4) (c).

In summary, a Kennon argument may be raised in Family Law property proceedings where repetitious perpetration of intimate partner violence, whether during the relationship or in the post-separation period, has had a significant adverse impact on the victim’s contributions to the marriage or de facto relationship. In order to successfully run a Kennon argument, it must be established that there is a nexus between the violent conduct itself and the financial loss suffered. If successfully raised and proved (on the balance of probabilities), the Court may make an adjustment in the victim’s favour with respect to the division of matrimonial assets.

How we can help

Family violence is a complex issue in Family Law matters. As discussed in this article, there are a number of important factors to consider when raising a Kennon argument, including satisfying the admissibility of evidence requirements.

If you have suffered family violence, and your ability to make contributions towards your marriage or de facto relationship was affected as a result; and if you are considering running a Kennon type argument in relation to post separation conduct and contributions, you need an experienced family lawyer who can guide you every step of the way and provide you with expert, tailored advice. The Family Law team at JurisBridge Legal are experts in dealing with matters that involve family violence.

If you would like to talk to us about running a Kennon argument, or any other Family Law matter, please do not hesitate to contact us on +61 2 8355 3737 or 1300 559 888 or fill out the enquiry form here.