Sep 20

Recognising the significance of family violence in property proceedings

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Recognising the significance of family violence in property proceedings

As presently defined under Section 4AB(1) of the Family Law Act 1975 (Cth) (‘FLA’), ‘family violence’ means:

‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’

Examples of such conduct include assault, sexual assault, stalking and damaging or destroying property (see Section 4AB(2) of the FLA).

The significance of family violence has been acknowledged under the FLA in a number of respects, including, for example, recognising that it is a form of child abuse where a person has caused ‘the child to suffer serious psychological harm, including…when that harm is caused by the child being subjected to, or exposed to, family violence’ (Section 4).

The case of Re: Cassandra Kathleen Kennon and Ian William Kennon Appeal [1997] FamCA 27 (‘Kennon’) involved a relatively short marriage of around 3 years’ duration, during which the husband was found to have perpetrated family violence against the wife through physical assault and humiliation.

The Full Court of the Family Court determined that, in considering the parties’ respective contributions in making an order in property settlement proceedings, the Court can take into account the family violence perpetrated by one party on another during the marriage which has had a “significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been”. The Court also stressed the high threshold that needs to be met in these cases such that it is “necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party”.

If you have been subjected to family violence, you could potentially have your more arduous contributions during the relationship recognised by the Court in making an order in property settlement proceedings. If you wish to receive further advice on this, please make an appointment to speak with our principal, Ben O’Sullivan.