Monday, 4 May 2009

Review of recent Kennon cases in assessing doemstic violence in property settlements

Kennon was the case that said that victims of domestic violence might, in the right circumstances, be able to obtain more by way of property settlement as a result of domestic violence in the marriage.

I thought I would look at recent Kennon cases and see if there were any current trends.

S and S (2005)

The Full Court held:

65. The term “course of conduct” is a broad one. We do not think that
conduct must necessarily be frequent to constitute a course of conduct though a
degree of repetition is obviously required. The wife’s evidence does establish
periodic behaviour [about once every 6 months] and its consequences throughout
the period of cohabitation.
66. We are not satisfied that the findings of the learned Magistrate were
not open to her.
67. Whether or not, on those findings, a 5% adjustment in the wife’s
favour, resulting in a 10% differential between the parties, in turn
counterbalancing the adjustment that her Honour notionally made to the husband
on account of the inheritance, was an error, raises the width of discretion
which has been frequently discussed in cases such as House v The King
(1936) 55 CLR 499 at 504-505 and Gronow v Gronow (1979)
144 CLR 513 at 519-520. The brief submission under the relevant
ground (ground 10), said no more than a 5% allowance was not warranted.
Having regard to what was said in the cases cited, we are not satisfied that the
learned Magistrate’s discretion miscarried.

G and G (2006)

As cited in Cable and Cable (2007):

Warnick J accepted that “...before domestic violence can affect a
contribution assessment, two matters of fact must be established...” Those
“matters of fact” are as follows:
A relevant course of conduct towards the
other party to the marriage.
The relevant course of conduct must be
demonstrated to have had a significant adverse impact upon that party’s
contributions to the marriage, and to have made his or her contributions
significantly more arduous. Such conduct must also have had a discernable impact
on the contributions of the other party.
His Honour held, in effect, that
general statements to the effect that domestic violence has had or may have had
a “significant adverse impact” or a “discernable impact” upon the contributions
of the party subjected to it are inadequate to explain or justify practical
weight been given to the factor. In other words, evidence of the relevant course
of conduct and its impact upon the other party’s contributions is crucial.
His Honour also held that the correct approach to evidence of this nature is
to make appropriate findings regarding –
the relevant course of conduct; and
its impact upon the party subjected to it (“the victim”),
in the context
of determining whether greater weight should be given to particular types of
contribution made by the victim than would otherwise be the case.

Cuneo and Cuneo (2006)
The husband was violent to the wife in the context of having mental health issues.

Coleman J held:


In none of the authorities to which the Court has been referred does the
question of intent seem to have been raised or considered in the context of a
claim such as the wife pursues. In Kennon itself, under the cross vesting
legislation then in force and effect, a substantial verdict for damages for
assault was entered in the wife’s favour by the trial Judge. The obiter
discussion of the potential impact of spousal conduct in Kennon in the Full
Court related to substantially those same acts. There can be little doubt that,
on its facts, the obiter in Kennon was directed to intentional or deliberate
acts.
In this case, the Court finds that the wife’s allegations of the
behaviour of the husband, as directed to her, have been established on the civil
standard in the Briginshaw v Briginshaw (1938) 60 CLR 336
sense.
Whilst, to her credit, the wife has not established specifically that
any contribution made by her was thereby more difficult, or that such behaviour
impacted adversely upon her in any lasting sense, the Court accepts that, of
necessity, the more extreme behaviour of the husband to which the wife was
subjected must have rendered more emotionally or psychologically onerous the
performance of her duties than would otherwise have been the case.
To
conclude otherwise would involve a number of unacceptable notions. The first of
those would be to punish a spouse who, as the wife in this case did, displayed
uncomplaining resilience in the face of difficult circumstances in performing
her contributions without diminution, and potentially to reward a less resilient
spouse contributing in the same circumstances. Secondly, to dismiss the wife’s
claim would be to ignore the common sense reality that there is a material
distinction between a spouse who contributes in circumstances such as those
found to have applied from time to time in this case, with identical
contributions by a spouse in conditions lacking any such difficulties.
Commonsense suggests that the contributions in the former case should, without
demeaning those in the latter, be seen as somewhat elevated.
Implicit in
these observations is acceptance of the notion that behaviour such as the wife
complains of falls outside, and beyond, the kind of behaviour which, however
annoying or persistent, forms what has sometimes been inappropriately described
as the “rough and tumble” of married life. This is particularly so given that
there is no suggestion by the husband that such behaviour as the wife described
was provoked, incited or otherwise caused or contributed to by the wife herself.
The Court is accordingly persuaded that, whether in reliance upon the
decision in Kennon, or subsequent decisions, or the decision of the High Court
in Mallett, or the wording of s 79 of the Act itself, the wife’s contributions
are entitled to be regarded more highly by reason of the husband’s behaviour to
her subsequent to 1988. Such behaviour was clearly episodic although, as the
evidence identified earlier makes clear, the impact of those episodes on the
wife as she went about making her contributions was likely to have endured well
after the episodes themselves had ended.
The Court has not thus far
addressed the issue of intent, or the voluntariness of the husband’s conduct. As
the submissions of Counsel for the wife perceptibly indicate, in this case the
Court faces something of a dilemma. On the one hand, the behaviour to which the
wife was subjected was unacceptable and was behaviour to which she should not
have been subjected, at the hands of her husband or any one else. However, as
was fairly conceded on behalf of the wife at all times, it is not suggested that
such conduct by the husband was intentional, or committed in circumstances
involving reckless indifference or possibly even “foreseeability”. It would not
be exaggerating the concession made on behalf of the wife in relation to intent
to suggest that it was acknowledged that the husband’s actions were involuntary.
In the circumstances of this case, to adjust the wife’s contributions in the way
in which a Court would, where the unacceptable behaviour intentional or
committed with reckless indifference, would be to apply an unjustifiably strict
test.
Albeit in the absence of clear authority permitting or precluding such
a course, to fail to have regard to the “difficulties” which the husband’s
behaviour after 1988 caused the wife in the performance of her contributions
would be to fail to fully evaluate the nature and quality of the wife’s
contributions. On the other hand, to fail to acknowledge that the cause of such
behaviour was external to and beyond the control of the husband, being clearly
referrable to the horrendous experiences he had during the Vietnam War, would
also be unjust.
Without being entirely clear as to what is intended by the
expression “weighing factor” appearing in the submissions of Counsel for the
wife, the Court is of the view that to fail to reflect the impact of the
husband’s behaviour on the rendering of contributions by the wife would be
unjust but, to do so without moderating the adjustment to some extent by reason
of the largely involuntary nature of such behaviour would be unjust to the
husband. Clearly the exercise thus arising involves the exercise of discretion.
Whilst acknowledging that others may well come to different conclusions on the
same evidence, the Court is persuaded that a small adjustment in the wife’s
favour would, on balance, be a proper approach.



May Laguna and Laguna (2007)

Moore J held:

75. In the decade since this decision, there remains, in my experience, a
tendency to conflate the concepts of ‘conduct’ as part of the legitimate s
79
exercise with ‘fault’ for the breakdown of the marital relationship. The
latter became irrelevant upon the introduction of ‘no fault’ divorce,
specifically by abolishing the need to prove one or another of a series of forms
of ‘fault’ and instead made irretrievable breakdown of the marriage the only
ground for obtaining a divorce. Of course examination of ‘conduct’ that brought
about the end of the marriage is quite different from examination of ‘conduct’
that makes up a contribution as described in s
79
(4) and the latter is not a back door reintroduction of ‘fault’ in the
marriage breakdown through what might be called ‘marital misconduct’. Academics
such as Professor Regina Graycar [Sydney University] and Dr Juliet Behrens
[Australian National University] have published on this topic and examined these
distinctions. As appellate authority establishes, the ready contention that
‘conduct is irrelevant’, often heard when violence is raised as an issue in
property proceedings, is not necessarily correct.
76. It is not correct in this case. Mr Lethbridge submits that the wife’s
case would not get over the first hurdle because he submits she failed to link
it with the proposition that her contributions were made the more onerous as a
result and it would also fail because, except for a few occasions, her evidence
is too general to indicate what it was that led to the more onerous
contributions.
77. I do not agree. In fact in her evidence the wife refers to counselling
over the years from as early as the time they were living in New York to
difficulties resulting from his substance abuse and she attributes emotional and
physical exhaustion to difficulties in the relationship caused by his substance
abuse and its impact on his behaviour which in turn reverberated upon the way he
treated her. His conduct, she said, had a deleterious impact on her capacity to
further her career over the many years of their relationship. That is the link
Kennon makes necessary and the persistence of this serious problem over many
years takes it out of the ‘floodgates’ reservation and puts it into the
‘exceptional cases’ spoken of in Kennon. There is no doubt the husband had a
significant long term problem, with alcohol particularly, and it resulted in
grave illness of life threatening proportions in the months before their
separation in 2004. Nor can there be any doubt that his conduct was affected by
alcohol abuse, quite adversely so towards the wife over many years in the ways
she described. Her contributions were made in those circumstances and plainly
they were made all the more onerous as a result. Mr Richards says, accurately on
the evidence, the circumstances were by no means ordinary having regard to her
description of their social life, amongst other things, and rather than
receiving support from her husband while living far from her family, he was the
source of distress.

W and W and L (2007)

Riethmuller FM held:

An adjustment on this basis is not to be undertaken lightly. It is important to
find a specific evidentiary foundation. In this case there appears to have been
a long history of violence in the relationship, as set out above. In the Family
Report the mother describes life in the household like ‘walking on eggshells’.
She exhibits an ongoing fear of Mr W. Her relationship with D was effectively
severed during this time. The children A and B were subject to family violence.
I am satisfied that there is sufficient evidence of specific violence, and that
it shows that her task of homemaker and provider of a nurturing environment was
made far more difficult. In this case this is a relevant consideration.


Cable and Cable (2007)

Walters FM held:


I have set out the evidence regarding the husband’s alleged conduct in some
detail in order to focus upon those matters of fact that must be established
before domestic violence can touch upon an assessment of the parties’ respective
contributions. Without the necessary evidentiary foundation, no relevant
findings can be made, and, as a result, no corresponding conclusion can be
reached regarding the weight to be attributed to the parties’ respective
contributions.
In my opinion, the husband’s behaviour towards the livestock
or other farm animals does not fall comfortably within the type of conduct
envisaged in Kennon. It is clear that the course of conduct referred to in
Kennon is not limited to domestic violence, and is broad enough to incorporate
other forms of behaviour, but it seems clear that the conduct must be “by one
party towards the other”. The more indirect or remote that conduct becomes, the
greater the importance of demonstrating that it had “a significant adverse
impact” upon the other party’s contributions or, alternatively, that those
contributions were made “significantly more arduous that they ought to be have
been”. I have no doubt that the husband’s conduct towards the farm livestock and
other animals (as described in M’s affidavit and H’s affidavit) upset the wife
considerably, but there is simply no evidence that such conduct had a
discernable impact upon any of the relevant forms of contribution made by the
wife. Put another way, there is no evidence that the husband’s conduct in this
regard caused any of the wife’s contributions (in the relevant sense) to be
significantly more arduous than they ought to have been.

Jarrett and Jarrett (2007)

McGuire FM held:


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.

A and A (2007)

Baumann FM held that living with a tight husband, who insisted that the parties live in a shipping container pending development, did not enliven the Kennon factors.

Wei and Wei (2007)

Barry J rejected a Kennon claim:

The Wife seeks a weighting of her contributions on the basis of the, “ Kennon
principle”. I am not minded to make such an Order. There was a serious assault
incident on the 5 April. It is possible the Wife may be able to make a claim for
criminal compensation under State legislation. I do not doubt the Wife’s claims
of domestic violence and controlling behaviour by the Husband but the case as
presented did not amount to one that would persuade me it comes within the
relatively narrow band of cases provided for in the decision of Kennon .

Spence and Spence; F Pty Ltd and Spence (2008)

Strickland J held:


There is no doubt that there was some domestic violence during the marriage, but
there is no basis to find that “there was a course of violent conduct” by
the
husband which had “a significant adverse impact” upon the wife’s
contributions
to the marriage. There is simply no evidence provided by the
wife to establish
the link between any domestic violence by the husband and
any impact on her
contributions. Certainly the report of the psychologist
does not assist in this
regard. It does not assist the wife that she may be
suffering from
post-traumatic stress disorder. That says nothing about
whether any conduct by
the husband made her contributions “significantly
more arduous than they ought to have been”. Thus, this is a claim that cannot
succeed.

Dowdell and Public Trustee (2008)

Strickland J held:


Now, there was evidence both from the wife and from the daughter, AA as to
how the husband behaved towards the wife and how he disciplined the children,
but there was virtually no evidence that satisfies me that that behaviour or
conduct had a “significant adverse impact upon (the wife’s) contributions to the
marriage” or “made (the wife’s) contributions significantly more arduous than
they ought to have been”.
Clearly, because of his post-traumatic stress
disorder the husband was a difficult man to live with, but that is not enough.
The wife still went about her daily tasks in caring for the children and running
the household and performed them well, and she will receive credit for what she
actually did, but to repeat, there is no evidence that indicates those tasks
were more onerous because of the husband’s behaviour or conduct. Indeed, I
accept the submission of Ms Pyke that the most that can be said is that the
wife was not happy with the way that the husband spoke to her on occasions or
how he handled the children, but they stayed together until the presence of
their son AD and his partner and their child brought about their separation.

Whitlam and Whitlam (2008)

Watts J held, in relation to a series of violent assaults and abuse by the husband to the wife:



Counsel for the husband did not attempt to address the evidence in relation to
domestic violence in any specific way. He contented himself with submitting that
the different stories given by the parties could be reconciled on the basis that
the parties had different perceptions of what had happened. His submission was
that he accepted that the wife believed what she was saying had happened. He was
not saying that she was lying but he was saying perceptions are powerful things.
He made the point that the evidence was in January 2003 when the wife
separated from the husband she did not move very far away (she moved to another
part of W).
I am not entirely sure that the husband was giving deliberately
false evidence about what I find on the balance of probabilities on the
Briginshaw standard to be assaults on the wife (including one indecent assault
and one attempted indecent assault). I am prepared to accept that either his
state of inebriation (and in one instance the wife gave clear evidence that the
next morning he seemed to have no memory of what had happened) or some type of
psychological denial has managed to block out or blur in his mind as to what
actually happened.
I think the husband genuinely believed that he never
forced himself on the wife. I find that he did. This is not a matter of
perceptions.
Counsel for the wife referred to Stevens & Stevens (2005)
FLC 93-246. The Full Court in that case was dealing with course of conduct which
was probably less severe than the conduct I have found happened in the marriage
of these parties. The Full Court said:
“The term ‘course of conduct’ is a
broad one. We do not think that conduct must necessarily be frequently to
constitute a course of conduct though a degree of repetition is obviously
required. The wife’s evidence does establish periodic behaviour and its
consequences throughout the period of cohabitation.”
I find that the wife’s
evidence about the husband’s course of conduct is clear and cogent in this case
that the wife has established a course of conduct which made her contributions
significantly more arduous throughout the period of cohabitation from 1997 to
the date of separation.

Tolbiac and Tolbiac (2008)

Brown J held:


Considering all the evidence I am satisfied that the wife was subjected to the
physical, sexual and verbal violence to which she deposed during the marriage. I
make no finding in respect of the alleged rape prior to marriage. I accept her
accounts of the specific incidents referred to in her affidavit which occurred
after marriage. Further, I find it more probable than not that Z and, albeit to
a lesser extent, the boys, were subjected to the abuse alleged by the wife. It
is probable all of the children witnessed the physical abuse of their mother. I
am satisfied that the abuse made the wife’s contributions as a parent and
homemaker, and a financial contributor, significantly more arduous than they
ought to have been, and that this case falls within the category of exceptional
cases in which abuse is relevant to the assessment of contributions.
I do not
ignore the evidence of the wife’s violence to the husband after the parties’
reconciliation, which occurred at a time her psychiatric condition was
deteriorating rapidly. I do not find it more probable than not that the wife was
the primary aggressor during the marriage or that she initiated acts of physical
violence against the husband prior to their separation in January 2002.
I am
satisfied each of the parties contributed financially during the marriage. The
wife maintained paid employment for many years; the husband worked as a builder
until 2001.
While the husband may have made some contributions as a
homemaker and parent, I am satisfied the brunt of those roles fell to the wife
when they were together and the violence to which she and the children were
exposed made those contributions more onerous.

Parsons and Prendergast (2008)

Guest J accepted the wife's Kennon claim:

The evidence of the wife in her trial affidavit is compelling and which
evidence I accept. I have no doubt that the husband’s conduct towards her was
emotionally and physical exhausting, the impact of which upon her contribution
as a homemaker and parent was made “significantly more arduous” than it ought to
have been. I take that into account in a general way in the exercise of my
discretion.

Harlem and Harlem (2008)

Bell J rejected the wife's Kennon claim:

It was raised by Mr Kirk during argument and in written submissions that
"It is little wonder [the Applicant Wife] felt violated, lacked self-esteem and
struggled to shoulder the unfair burden the Husband placed upon her." As counsel
for the Respondent Husband points out in his written submissions, however, the
Applicant Wife has not led any evidence neither corroborating the reported
effects of the alleged abuse, nor demonstrating the manner in which any alleged
domestic violence during the course of the relationship has impacted adversely
upon her capacity to contribute. It is not appropriate in these circumstances to
make an adjustment for Kennon
factors.

Bingham and Bingham (2009)

A decision by Federal Magistrate Altobelli, his Honour restated Kennon as:


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...


There is an issue of causation in any Kennon-type claim. The claimant
must establish the "course of violent conduct by one party towards the other
during the marriage". I am prepared to accept that the evidence, on the balance
of probabilities, satisfies me of this. However, the Full Court goes on to say
that such course of violent conduct is "demonstrated" to have had a certain
impact. The use of the word "demonstrated" clearly illustrates the need for the
claimant to establish that a certain impact is causally linked to the violent
conduct. The wife's evidence does not so satisfy me. Even if she were to
convince me to the requisite standard of the impact on her contributions, I
could not be satisfied that this was attributable to family violence because her
medical condition was much more complex than to allow that simple causative
conclusion.
In any event, the Full Court in Kennon goes on to refer to a
course of violent conduct which is demonstrated have had "a significant adverse
impact upon that party's contributions to the marriage". There is simply no
satisfactory evidence adduced on behalf of the wife which could satisfy me about
this, on the balance of probabilities. It is left to mere inference. I am left
to infer that because of the husband's course of violent conduct her
contribution was made more difficult, or significantly more arduous. I do not
think there is any room for inference in a Kennon-type claim. Clearly the Full
Court was seeking to limit these types of claims and to avoid opening the
floodgates. The Full Court emphasised that these principles apply to a
"relatively narrow band of cases". The evidence before me in this case does not
establish that there was any adverse impact on the wife's contributions, and
even it if did, because of the wife's complex psychological and psychiatric
condition, I could not be satisfied that the conduct caused any impact on that
contribution.

The wife's claim for a Kennon-type contribution fails. Indeed, on the
evidence that has been before the Court since February 2008, the wife's claim
was always doomed to fail. I hinted that this might be the case at the close of
the first day of the hearing, and encouraged her to reconsider this aspect of
her claim. By no means was this a pre-judgment of her case, but merely an
encouragement to reality test what she herself was asserting. With great respect
to the wife, and to those who represent her, the evidence about the Kennon claim
was as clear on the first day of the hearing as it is on the day that this
judgment is being dictated. One can only wonder whether this case might have
settled at a much earlier stage, and without resort to a hearing, had there been
undertaken a more robust assessment of the merits of this part of her
claim.

Oliver and Gall (2008)

A decision of Federal Magistrate Wilson, his Honour followed both Kennon, and Spagnardi (2003). His Honour held:


It is therefore of critical importance for evidence of marital misconduct
to be relevant and admissible for there to be evidence not only about the
conduct but for there to be evidence to enable the court to quantify the effect
of that conduct upon the other party’s capacity to contribute. It is that
shortcoming which is particularly stark in the present case...


In my view it is not appropriate to allege a series of events
constituting misconduct and then simply state a bald conclusion that these
affected one parties’ ability to contribute. There must be more. There must be
evidence that enables the court to quantify that effect.
Senior Counsel for
the wife submitted that the court could infer such an effect. That is contrary
to authority. In any event it does not address the crucial question which is
whether there is any evidence to quantify the effect. There is none.

Campion and Campion (2008)

Riley FM held:


In the present case, the evidence of the husband was that there had been no
physical violence in the marriage for 38 years and that previously both parties
had engaged in physical violence. The wife's oral evidence was not entirely
clear, but put the last physical violence by the husband towards her while the
parties lived in Lakes Entrance and at about the time of [Y]’s birth in 1971. In
the circumstances, I find that the physical violence in this 38 year marriage
was confined to the first five years.
The wife also claimed that the husband
was emotionally abusive by telling her that she was “no good”. The wife claimed
that since separation she has been suicidal and has received counselling. I
accept those claims. However, she provided no medical evidence linking her
present emotional and psychological state to the husband’s behaviour during the
marriage. Moreover, the wife has not linked either the physical or emotional
abuse to the level of her contributions or the difficulty of her contributions.
In view of Kennon
and Spagnardi, it is not open to the court to find that there was domestic
violence and then simply conclude that it must have had an adverse impact on
contributions. What is required is evidence which shows that the domestic
violence by one party had a discernible effect on the contributions made by the
other. There is no such evidence in this case.

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