15 May 2019

Written by Dianne Caruso, Senior Associate and Simon Creek, Managing Director and Special Counsel, Family Law

The recent Full Court of the Family Court of Australia decision of Keating & Keating [2019] FamCAFC 46 discusses the evidentiary requirements necessary to successfully run a Kennon argument, which is essentially that family violence perpetrated by one party has adversely impacted upon the other party’s contributions to the marriage. The majority of the Court held that there must be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions, however quantification of the effect of the violence on the contributions was not necessary. In this article I discuss some of the Full Court decisions discussed.

The Full Court of the Family Court of Australia in the decision of Kennon & Kennon (1997) FLC 92-757 found that family violence was of relevance to property settlement proceedings within the assessment of contributions. Fogarty and Lindenmayer JJ stated 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.”

Their Honours went on to state:
“It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be 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.”
In the unanimous Full Court of the Family Court of Australia decision of Spagnardi & Spagnardi [2003] FamCA 905, their Honours Kay, May & Carter JJ held at paragraph 47:47. “An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
• The incidence of domestic violence;
• The effect of domestic violence; and
• Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).”

The Full Court of the Family Court of Australia handed down the decision of Keating & Keating [2019] FamCAFC 46 on 21 March 2019. In this decision their Honours, Ainslie-Wallace and Ryan JJ, found at paragraph 38, that the reference to “quantification” in the decision of Spagnardi (supra) appeared to elevate the need for a “discernible impact” between the conduct complained of and its effect on the party’s ability to make contributions as set out in Kennon (supra).

Their Honours went on to state that perhaps the use of the word “quantification” by the Court in Spagnardi (supra) was “infelicitous” when in fact, the Court “was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions”.

Their Honours went on to confirm it is well settled that a party does not require corroborative evidence before evidence of family violence can be accepted (paragraph 42), and quoted from the decision of Amador & Amador (2009) 43 Fam LR 268 in which the Full Court stated at paragraph 79 of that Judgment:
“Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.”

Ainslie-Wallace and Ryan JJ stated at paragraph 34:
“…the wife gave evidence about a course of significant family violence which was prolonged, had a significant adverse effect on her and undermined her parenting and her ability to contribute.”

They held at paragraph 43 that the primary Judge misdirected himself in focusing on there being no evidence of quantification of the husband’s violence on the wife’s capacity to make contributions. The appeal was allowed and the matter was remitted for rehearing.

Austin J dissented finding at paragraphs 65 and 67:
65. “…when they make allegations of family violence in litigation, the veracity of their contentious allegations must be tested and evaluated by the same forensic techniques as apply to all other contested issues of fact. In the adversarial process, procedural fairness demands that such allegations are not insulated from challenge.”…

67. Without in any way trivialising the serious repercussions of family violence, the wife needed to do more than allege her victimisation by the husband and express her distress about it before her contributions could have been accorded greater weight under Part VIII of the Act.”
The question arises whether the decision of Keating will result in an increased number of Kennon arguments being run due to what may be perceived as an acceptance that the circumstances of family violence are inconsistent with the notion of quantification of the impacts of family violence on contributions, and evidence of significant family violence, its impact on the victim, and their ability to make contributions, constitutes sufficient evidence to successfully run the argument.

If you need any assistance, we have experienced lawyers at HHG Legal Group who can assist you with these family matters. Please contact HHG Legal Group’s Family Law team on 1800 609 945 for assistance.

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