If you have suffered domestic violence during your marriage, this may have an impact on the alteration of your property rights in family law proceedings.
Part VIII of the Family Law Act 1975 (Cth) (the Act) provides a mechanism for parties to alter property rights that would otherwise apply under common law and equity. When exercising its discretion under section 79(4) of the Act, the Court will take into account the contributions made by each party to the marriage, to any children of the marriage, and the acquisition, improvement, and maintenance of the parties’ assets.
The decision in Kennon and Kennon (1997) FamCA 27 (Kennon) established the principle that family violence is a relevant factor in determining a party’s contribution under s 79 of the Act. To satisfy the criteria established in Kennon, it must be proven on the balance of probabilities that:
- a ‘violent course of conduct’ existed during the marriage; and
- it had a ‘significant adverse impact’ upon the party’s contributions; or
- it made those contributions ‘significantly more arduous’.
In Kennon, evidence was provided by the wife’s children regarding their father’s violent history towards them. A psychiatrist also provided evidence about how the violence affected the violence. The Court ultimately made a 7.5% adjustment in the wife’s favour on the basis that the violence had an adverse impact upon the wife that made contributions as a homemaker and parent significantly more arduous.
Admissibility of domestic violence evidence
The Court’s decision in Britt & Britt (2017) Fam CAFC 27 impacted the way evidence relating to domestic violence in family proceedings is treated.
In the initial proceedings, the wife raised the principles established in Kennon arguing that her contributions towards the family’s property and wealth were made more arduous by the domestic violence of her husband. The wife’s evidence of family violence and the subsequent impact of that violence was rejected in part because it was deemed too general and lacked specificity.
However, the Full Court found that the trial judge erred when considering the admissibility of the evidence and the weight to be placed upon it. The trial Judge was required to consider whether the proposed evidence had sufficient, even slight probative value, to make it admissible. The Full Court stated that ‘the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence’.
Generally, an individual, who has been in a relationship for a long period of time, would not be expected to be able to remember the exact nature and frequency of recurring events throughout that relationship. The exclusion of the wife’s evidence of violence, in this case, may have affected the outcome and should have been admitted.
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