Introduction
The seminal case of Kennon v Kennon [1997] FamCA 27 had important ramifications for Australian family law in that it was the first time that domestic violence perpetrated in the context of a married couple had implications for the parties’ property settlement.
A Kennon argument is an argument advanced by a party to a marriage or de facto relationship where it is asserted that that party’s (the victim’s) contributions were made significantly more arduous than they ought to have been as a result of a course of violent conduct perpetrated by the other party (the perpetrator) to the marriage or de facto relationship.
If successfully proved on the balance of probabilities, the existence of Kennon factors will lead the trial judge to consider the course of the violent conduct and its arduous effects on the contributions made by the victim, holistically amongst the myriad of other contributions made by both parties, often having the practical effect of a contributions based ‘adjustment’ to the victim in the net assets of the parties as part of their property settlement.
What are the Kennon factors?
As alluded to above, it must be proved on the balance of probabilities that:
- There is a course of violent conduct by one party towards another during the marriage;
- Which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been; then,
- That is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
Exceptional cases
Although the guideline judgment of Kennon was cautious not to open the floodgates by limiting its application to “exceptional cases” or a “narrow band” of cases, the phrase “exceptional” has subsequently been interpreted to mean in context of the principle of misconduct generally rather than the narrower formulation about domestic violence – the Full Court have said they do not want the reference to “exceptional” to be understood to mean “rare”.
What level of frequency is required?
The Full Court has held that the phrase “course of conduct” is to be determined broadly; the threshold for frequency need not necessarily be elevated to strictly constitute a course of conduct, however, some degree of repetition would obviously be required.
What about post-separation violence?
Although Kennon did not specifically consider the possibility of post-separation violence, the Full Court has extended the application of a Kennon argument to conduct that occurred not only during the marriage or de facto relationship, but also to conduct that occurred during the post-separation period.
How does the Court determine whether the violent course of conduct made the victim’s contributions more arduous?
There needs to be an evidentiary nexus between the conduct complained of (being the violence) and the capacity (or effort expended) to make relevant contributions. Put simply, it needs to be shown that the violent conduct affected the victim’s ability to make contributions and/or made those contributions more arduous. As a result, the mere occurrence of family violence during the marriage/de facto relationship and/or post-separation period, will not of itself be sufficient to succeed with a Kennon argument.
The Family Courts are well aware that domestic and family violence often occurs behind closed doors; the Full Court has made clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties. This would suggest a relaxing of the evidentiary burden established in cases that shortly followed the judgment of Kennon; it is now clear that corroborated and/or additional third party evidence will not necessarily be required to succeed in making a Kennon argument.
However, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts and mere conjecture will not suffice. Recently, the Full Court has made clear that disputed but untested allegations are not facts, and any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques.
How does the Court treat the existence of Kennon factors in a property settlement?
Holistically.
The Full Court has made clear 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. All contributions must be weighed collectively – it is an error to segment or compartmentalise the various contributions and weigh one against the other. Any adjustment of the parties’ contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
In short, the existence of Kennon factors proved through the advancement of a successful Kennon argument, is but one of the myriad of factors that will be collectively considered when determining what is “just and equitable” in the circumstances.
Next steps
If you have left, or a contemplating leaving, a relationship marred by domestic violence (and/or family violence), you should seek the advice of a specialised family lawyer who can provide you with individualised, tailored advice that is applicable to your unique circumstances.
The North Shore and Northern Beaches family law specialists at Doolan Callaghan Family Lawyers have over 80 years of combined family law experience, including a wealth of experience with domestic violence matters, and can guide you to a just and equitable property settlement.
Call the Sydney based family lawyers on 02 9984 7411 to book your initial consultation with a family law specialist.
Cases referenced
- Baranski & Baranski (2012) 259 FLR 122.
- Benson & Drury [2020] FamCAFC 303.
- Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46.
- Keighley & Keighley (No 2) [2023] FedCFamCIF 42.
- Kennon v Kennon [1997] FamCA 27.
- Stevens & Stevens (2005) FLC 93-246; [2005] FamCA 1304.
- S & S [2003] FamCA 905.