Domes­tic vio­lence in finan­cial cas­es in the Fam­i­ly Court and Fed­er­al Cir­cuit Court of Australia

The Fam­i­ly Law Act 1975 estab­lished the ​‘no fault’ divorce prin­ci­ple. This means that, unlike in some oth­er juris­dic­tions, to estab­lish grounds for divorce, courts do not have to con­sid­er which part­ner is to blame for the break­down of a marriage. 

Where domes­tic vio­lence can be a fac­tor estab­lish­ing ​‘fault’ as grounds for divorce in oth­er juris­dic­tions, this is not the case in Australia. 

Does this mean that domes­tic vio­lence is not rel­e­vant to fam­i­ly law pro­ceed­ings? Not at all. Domes­tic vio­lence can def­i­nite­ly be rel­e­vant in par­ent­ing cas­es, but this arti­cle will look at what the Fam­i­ly Court and Fed­er­al Cir­cuit Court have to say about the impact of domes­tic vio­lence on finan­cial cases.

Rel­e­vance of vio­lence to a claim for prop­er­ty set­tle­ment adjustment

The Full Court of the Fam­i­ly Court looked at the rel­e­vance of vio­lence to a prop­er­ty set­tle­ment claim in In the Mar­riage of Ken­non. This case involved a four year mar­riage with no chil­dren.

The court stated:

… where there is a course of vio­lent con­duct by one par­ty towards the oth­er dur­ing the mar­riage which … [has] had a sig­nif­i­cant adverse impact upon that par­ty’s con­tri­bu­tion to the mar­riage, or, … [has] made his or her con­tri­bu­tions sig­nif­i­cant­ly more ardu­ous than they ought to have been, … [this can be tak­en] into account in assess­ing the par­ties’ respec­tive con­tri­bu­tions with­in s 79.

To be rel­e­vant, the court stat­ed that it must be shown that the vio­lence ​“occurred dur­ing the course of the mar­riage and had a dis­cernible impact” upon a par­ty’s contributions. 

While the court made an adjust­ment in favour of the wife on the basis of the impact of vio­lence on her con­tri­bu­tions, the spe­cif­ic per­cent­age terms of the adjust­ment were not set out. 

Cas­es with a spe­cif­ic per­cent­age adjust­ment on the basis of domes­tic violence

The court has attempt­ed to quan­ti­fy the impact of domes­tic vio­lence on a par­ty’s con­tri­bu­tions in a num­ber of cas­es by pro­vid­ing an adjust­ment of a spe­cif­ic per­cent­age of assets that a par­ty is to receive. For exam­ple, in Kozovs­ka & Kozovs­ki, the court made a 10% adjust­ment to the assets the wife was to receive on the basis of domes­tic vio­lence per­pe­trat­ed against her by the hus­band and the impact this had on her con­tri­bu­tions. In Dixon & Dixon, a 20% adjust­ment was made in favour of the wife in rela­tion to the impact of domes­tic vio­lence on her contributions. 

Appeal allowed where tri­al judge did not make find­ings about impact of violence

More recent­ly, the Full Court of the Fam­i­ly Court acknowl­edged in Maine & Maine that a wife’s con­tri­bu­tions, par­tic­u­lar­ly as home­mak­er and par­ent, were ​“more oner­ous” because of the hus­band’s drunk­en vio­lence and abuse over the 20-year rela­tion­ship, as was set out in the wife’s affi­davit evidence. 

In this case, the wife appealed against orders requir­ing her to pay the sum of approx­i­mate­ly $125,000 to the hus­band. The par­ties had sep­a­rat­ed 11 years ear­li­er, and the hus­band had trans­ferred his inter­est in the for­mer mat­ri­mo­ni­al home six years pri­or to the court case. 

The hus­band assert­ed that there was an oral agree­ment under which the wife was to trans­fer him $80,000 for his share of the prop­er­ty. This did not occur. 

The wife’s appeal was allowed and the case was remit­ted for rehear­ing on the basis of sev­er­al fac­tors, includ­ing that the tri­al judge did not make find­ings as to the impact of vio­lence on the wife’s contributions. 

Case involv­ing seri­ous vio­lence where no adjust­ment made

Bel­more & Bel­more is a recent unre­port­ed deci­sion of the Fam­i­ly Court involv­ing a mar­riage of 31 years with six chil­dren. The hus­band was incar­cer­at­ed for two and a half years after he was con­vict­ed of seri­ous­ly assault­ing the wife. The wife led evi­dence of oth­er inci­dents of domes­tic vio­lence, how­ev­er the court was not sat­is­fied that the evi­dence enabled an adjust­ment in favour of the wife on the basis of Ken­non.

The most seri­ous assault, which was able to be estab­lished on the evi­dence and which result­ed in the hus­band’s incar­cer­a­tion, occurred after the par­ties sep­a­rat­ed. Only vio­lence dur­ing the course of the rela­tion­ship is rel­e­vant to a claim for a prop­er­ty set­tle­ment adjust­ment on the basis of Ken­non.

High thresh­old to estab­lish domes­tic vio­lence impact­ed contributions

In prac­tice, the thresh­old is quite high for estab­lish­ing that a par­ty’s con­tri­bu­tions were more ardu­ous because they are a vic­tim of domes­tic vio­lence per­pe­trat­ed by the oth­er party. 

In Ken­non, the court not­ed the flood­gates argu­ment in stat­ing that the prin­ci­ples should only apply to ​“excep­tion­al cas­es” to avoid a sit­u­a­tion where the prin­ci­ples may be mis­used as ​“tac­ti­cal weapons or for per­son­al attacks”. The court not­ed in Ken­non that doing so would return the court to the pre­vi­ous posi­tion of estab­lish­ing ​“fault and mis­con­duct in prop­er­ty mat­ters, a cir­cum­stance which proved so debil­i­tat­ing in the past.” 

Evi­dence of vio­lence and impact of violence

Where there are con­tentions that domes­tic vio­lence has made one per­son­’s con­tri­bu­tions more oner­ous, detailed evi­dence of the vio­lence and its impact will need to be pro­vid­ed. This will like­ly require inde­pen­dent evi­dence by a psy­chol­o­gist or psy­chi­a­trist. These are dif­fi­cult cas­es to run giv­en the high thresh­old set by the court. 

How­ev­er, the court has shown that it is will­ing to pro­vide an increased per­cent­age of the asset pool where it is sat­is­fied there is suf­fi­cient evi­dence of domes­tic vio­lence hav­ing made a par­ty’s con­tri­bu­tions to the assets of a rela­tion­ship more onerous.