Family law. Divorce problems. Man and woman sitting depressed at the attorney, lawyer office.

Adjustment in property matters as a result of family violence

Jacob Smith ||

It is unfortunate that family violence remains as prevalent as it does in our modern society. Family violence is defined in the Family Law Act 1975 at Section 4AB and is given a wide definition and includes examples of when a child may be exposed to family violence (such as a child overhearing threats of death or personal injury by a member of the child’s family towards another member of the children’s family).

The Courts have determined that family violence can have a significant impact on a party’s contributions to a relationship and what parties will ultimately receive at the conclusion of any property proceedings. The case of Kennon and Kennon [1997] FamCA 27 is the leading authority on this principle.

The recent case of Allsop and Allsop [2019] FCCA309 (“Allsop”), as well as providing an erudite summary of the authorities, shows how a party’s contributions, over a period of 40 years, subject to family violence are “increased in weight as to both its quality and nature”.

In the case of Allsop, it was accepted by both parties, for the most part, the Husband was the “bread winner” and the Wife was the homemaker and parent even though the wife also worked for periods of time throughout the relationship. His Honour Judge Harman made findings that, over the period of the relationship – some 40 years, that the Wife and three children of the relationship had been the victims of family violence perpetrated by the Husband.

In addressing the Case Law, His Honour determined that there could be a negative or a positive impact upon the quality of the contributions made by a victim of family violence to the matrimonial asset pool as a result of the family violence as follows:

  • a negative impact upon contributions impede “or reduce” the ability of the party to contribute when they have experienced family violence (for example, a party is not able to leave their home because of family violence and therefore is unable to work); or
  • a positive impact is where the contribution has been made more arduous and therefore more difficult to make as a consequence of the violence, increasing the weight of the contribution by both its quality and nature.

In the case of Allsop, the Wife ultimately received an adjustment of a further 5% on a contribution-based assessment, as a result of the family violence that she suffered.

The principle in Kennon only applies in exceptional cases, so it is important that you obtain advice as to the appropriateness of an adjustment in circumstances where your relationship has been characterised by family violence.

If you are looking to speak with an experienced family lawyer prior to making your next move, please don’t hesitate to get in contact with one of Coleman Greig’s Accredited Family Law Specialists.

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