Friday, 13 July 2007

New case- property and domestic violence

In the recent case of R & L,
Federal Magistrate Altobelli dealt with a claim by the wife for a further 5% of the property, based on domestic violence. She was relying on a case of Kennon (1997) in which if the domestic violence made her contributions more arduous, she could receive more.

His Honour found:
The regular and extensive consumption of alcohol was a feature of the relationship between the wife and the husband. Both drank heavily. The husband drank more than the wife. They frequently became intoxicated. The intoxication led to arguments, which often escalated into violence. This alcohol-induced family violence involved both the wife and the husband as both perpetrator and victim, on different occasions.
Notwithstanding the above, there was no evidence of a plausible nature that indicated that the wife’s contributions were made more arduous. The onus was on the wife, who made these allegations, to prove that the alleged violent conduct by the husband towards her "had a significant adverse impact upon" her contributions to the marriage. In other words, she has failed to demonstrate that as a result of the husband’s conduct, her contributions became "significantly more arduous than they ought to have been". But even if I am wrong on this point, and I have failed to put adequate weight on what I consider to be the inadequate evidence linking the violence to contribution, the fact is that I find that the wife was as often a perpetrator of the violence as she was a victim of it. I stress that on the evidence before me all of the violence was fuelled by the excessive consumption of alcohol by both parties. Their lifestyle did not, however, affect their ability to contribute in the broad sense, within the relationship. It certainly did not make the contribution they made more arduous.

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