Case Note: Keating & Keating [2019] FamCAFC 46

by Andrew Lind on 30 September, 19

Is a Court entitled to consider family violence in assessing a party’s contributions based entitlements during a property settlement? The answer is yes, in a limited range of cases. The rationale for this was explained in the case of Kennon & Kennon (1997) FLC 92-757 where it was said that (at 84-294):

 “… where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have 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, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…”

(emphasis my own)

These considerations apply in only a limited range of cases. To be relevant, it must be shown that the conduct had a “discernible impact” on the contributions of the other party (84,295).

In the recent decision of Keating & Keating [2019] FamCAFC 46 the wife asked the Court to make an adjustment to her entitlement at property settlement on the basis that family violence had a significant adverse impact on her ability to contribute to the marriage.

She gave evidence that she had been exposed to significant family violence by the husband during their relationship and after their relationship had ended. The husband admitted one incident of family violence some ten years before trial but otherwise denied all allegations of family violence.

The primary judge said that the wife provided insufficient evidence to satisfy him that the family violence made her contributions more onerous.

The wife appealed the decision. The Full Court of the Family Court of Australia did not express a view about whether the primary judge was wrong in his approach, but the majority took the opportunity to clarify the law on this point.

Their Honours referred to the case of Spagnardi & Spagnardi [2003] FamCA 905. The Full Court in that case, in discussing Kennon & Kennon, said that it is necessary to provide evidence to:

  • establish the incidence of domestic violence
  • establish the effect of domestic violence
  • enable the Court to quantify the effect of family violence upon the capacity of a party to contribute

In Keating & Keating, Ainslie-Wallace and Ryan JJ criticised the third point. Their Honours felt that the reference to “quantification” suggests that the evidence of the victim spouse must be corroborated by expert evidence. They confirmed that it is well settled that evidence of the victim spouse is not required to be corroborated before it can be accepted (at [42]).

It was noted that perhaps the reference to “quantification” was simply confirming that there does need to be evidence to show that there was a discernible impact on the ability of the victim to contribute although that evidence does not need to quantify that impact.

In summary, the Full Court in Keating & Keating found that in family violence cases involving a Kennon & 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.

Should you need advice regarding property settlement and experienced family violence, set up an appointment with one of our family law team. Call (07) 3252 0011.

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