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The Family Law Act 1975 has as its base a “no fault” concept. The Family Court will generally not make Orders on the basis that one party to the proceedings is the “innocent party”. This applies in both divorce and property matters. The position in parenting cases is more complex. Some marriages and relationships are affected by Family violence. The Court has been reluctant and slow to take into account the existence and impact of family violence when determining what is “a just and equitable” property division between spouses/partners.
The position began to change in 1997 when the case of Kennan was heard by the Family Court and considered on appeal by the Full Family Court. In that case the wife sought a property division but also sought common law damages for assaults that had been made upon her by the husband during the course of the marriage. The Trial Judge took the view that the wife should only succeed to obtain damages for the assaults that she was able to prove on the evidence and this resulted in an additional small amount being paid to her in addition to her property settlement.
The wife appealed to the Full Family Court. The Appeal Court took the view that the Trial Judge had made an error and that family violence should be taken into account. The Appeal Court determined that family violence could be taken into account when looking at an issue in relation to the contributions of a party to the marriage ie their contributions to the acquisition, maintenance and improvement of family assets.
In circumstances where there was a course of violent conduct by one party against the other party occurring during the marriage which can be shown to have either had a significant adverse impact on the parties’ contributions to the marriage and to have made the parties’ contributions harder than they ought to have been, then the Court can take that into account.
Kennan case decided the case must be exceptional. In the years following the decision in Kennan it remained difficult to establish on evidence that the Court should depart from the no fault principle and provide a more generous division of property to the spouse who was the recipient of the violence.
In 2017 in the case of Britt v Britt the Court once again considered this issue and the Full Court disagreed with the Trial Judge’s rejection of significant amounts of the wife’s evidence of family violence. It found that the wife’s evidence was admissible as it did have probative value.
The Full Court said that the Judge at the original hearing was obliged to consider whether the evidence could rationally affect the assessment of the existence of family violence which led to the Appellant’s contributions becoming more onerous. In other words, by reason of the existence of the family violence the contributions of the victim were worth more because they were made in circumstances where there had been family violence.
Evidence of family violence can be relevant and “provide a context for other evidence”, “provide evidence as to the relationship in existence between the parties which may explain their actions” and “credibility”.
If you find yourself in circumstances where you are the recipient of family violence or accused of family violence and seek clarity as to your rights and entitlements in financial/property settlement our experienced Senior Family Law Solicitors at Watson & Watson can assist. Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek timely advice.
This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.
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