In 1997, the Family Court in the matter Kennon v Kennon (“Kennon”) considered whether family violence could be relevant to and alter the outcome of a property settlement.
The Court considered the impact of family violence on the contributions of the wife during the relationship, in the face of family violence.
The Court held that the wife’s contributions during the relationship were more arduous (difficult or hard) than they would have been, but for the family violence. Accordingly, the Court gave greater weight to the wife’s contributions and made an adjustment to the assessment contributions, in favour of the wife.
The Court established that three (3) elements need to be satisfied, to consider making an adjustment to a contribution assessment on the basis of family violence:
- A course of violent conduct can be established;
- The violent conduct has a discernible impact on the victim; AND
- The contributions to the marriage or relationship were significantly more arduous because of the family violence.
It is often difficult for the Court to understand or quantify the impact of family violence on a party’s contributions over the course of a relationship. Each matter must be considered on its unique facts and on the evidence available.
In practice, historically, establishing what is now commonly referred to as a “Kennon argument” or “Kennon adjustment” is difficult, due to the high evidentiary threshold required to convince the Court that a party’s contributions were more arduous because they are a victim of family violence perpetrated upon them by the other party.
However, the Full Court of the Family Court in the 2019 decision of Keating & Keating [2019] FAMCAFC 46, considered that in cases involving a Kennon argument, the focus should be on the ‘discernible impact’ of the family violence, rather than any lack of evidence allowing ‘quantification’ of that impact.
If a party’s mental health and/or physical health is affecting their earning capacity or increasing their costs of medical care, regardless of whether a party’s application for a Kennon adjustment is successful or not, a party may be able to seek an adjustment due to their greater future needs. This is a separate and distinct “adjustment” from a Kennon adjustment.
If you need to discuss the effects of domestic violence on your property settlement, contact our family law specialists on by email or call 0243245688
