Wednesday, 11 March 2009

FMC case: Comment on Kennon

In the recent Federal Magistrates Court case of Bingham and Bingham, Federal Magistrate Altobelli considered the effect of Kennon's case. Kennon took domestic violence into account in some cases when property settlement was decided.

His Honour stated:


The passage from the Full Court's decision in Kennon clearly indicates that
it
is a relatively narrow band of cases to which a Kennon-type
adjustment
would
apply. The Full Court's decision focuses on conduct
during the
marriage, but not
afterwards, which suggests the concept
was
not intended to
apply to
post-separation contribution. There
is
a clear
emphasis by the Full
Court on the
need to
establish
that the
violence
had a discernable impact on
the
contributions
made by one
party. The
focus seems to be on
establishing
either
that there has
been a
significant adverse
impact on a party's
contributions, or
that their
contributions are
significantly more
arduous
than they
ought to have
been. As I
read the Full Court's
decision, little or
no
room is left for
inference. The claim can
only be established by
probative evidence
that
satisfies the Court on
the balance of
probabilities.

As a comparison, in the recent Federal Magistrates Court case of Jarrett and Jarrett, McGuire FM had this to say, showing that a Kennon claim can be hard work to get up:


The wife raised a further contribution issue in that she claims to have suffered
domestic violence at the hands of the husband. He denies any physical violence.
The evidence of the wife is that the husband was for a period a heavy
drinker. She says he would become violent and that he yelled at and hit her and
the children. On an occasion she was pushed out the front door and into the
street with the oldest child. There was police involvement. The wife moved to a
women’s refuge for a couple of weeks. She obtained an intervention order against
the husband.
It is clear that following the decision of the Full Court of
the Family Court of Australia in Kennon v Kennon[7] domestic violence can be a relevant contribution
consideration.
However, it is also clear that it is incumbent upon a party
relying on such an issue to show more than violence per se. The onus is to
demonstrate the violent conduct:
...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...[8]
The courts have emphasised the exceptional nature of the
principle. The onus is to prove a connection between violence and contribution.
In my view, in this case the wife has not discharged that onus. Her evidence
is only as to the fact of the alleged violence rather than any impact on her
contributions.

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