One of the key considerations that the Federal Circuit and Family Court of Australia considers when settling a property dispute is the contributions that each party has made to the matrimonial property pool. The court, once having considered the contributions of the parties as well as other factors (such as the parties’ future needs) will split the property between the parties on a percentage basis. For example, splitting the property pool 45% to one party and 55% to the other.

However, the Court can consider the impact that domestic violence has had on a party’s ability to make contributions and as such can make an adjustment in their favor as to their share, they will receive of the property pool.

This concept was first discussed in the case of Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, where in the full court of the Family Court of Australia (as it was then known), their Honours held that:

“…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…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 party’s respective contributions.”

As such, there are three elements that must be established:

1. That there was violent conduct by one party towards the other;
2. The conduct has had a discernable impact upon the contributions of the other party; and
3. That this violent conduct has been demonstrated to have had either:
   • significant impact upon the affected party’s contributions to the marriage or
   • to have made it significantly more arduous for the affected party to have made the contributions.

In the matter Benson & Drury [2020] FamCAFC 303, a Kennon claim was raised by the Wife and was upheld on appeal. In this matter there were numerous and substantial incidences of domestic violence that continued into the post separation period, including threats to murder, incidences of choking and a variety of other violent conduct.

Importantly, the Husband did not deny the accusations of domestic violence thus removing any questions of evidence that such violent conduct occurred.

On appeal, the husband disputed the primary judge making an adjustment due to the domestic violence as he argued that the wife has not been adversely affected by the violence and there has been no quantification by her of the effect of the violence she suffered. To support his argument, the Husband pointed out that the Wife, at the time of the violent conduct, was able to complete a tertiary qualification and obtained employment at a university.

The primary judge and their Honor’s on appeal did not find this line of reasoning persuasive as just because the wife was able to undertake studies and maintain her employment, does not necessarily mean that she did so easily and without significant burden.

Another important take away from Benson is that when a judge considers making a “Kennon adjustment”, the judge must consider such an adjustment wholistically. That is to say that:

“the contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent.”

In short, a Kennon claim cannot be considered in a vacuum, and must be considered alongside all other contributions made by both parties.

If you require any assistance with your family law situation, please don’t hesitate to contact us on (02 8379 1892 or nevans@barkerevans.com.au.