Under the Radar
Adjusting for
Family Violence Carlie Moses
F
amily violence has become a prominent issue in today’s society, with an average of one woman per week being murdered by their current or former partner. Further, 2.2 million Australians have experienced physical and/or sexual violence from a partner and 3.6 million Australians have experienced emotional abuse from their partners. Evidently, this is an alarming rate that needs to be addressed in some form within family law. The Family Law Act 1975 (Cth) (‘the Act’) is the main piece of legislation governing the family unit. Currently, there is no provision in the Act that explicitly considers family violence as a factor in property settlement matters. As a general principle, family violence is recognised in family law only when adjusting the settlement for ‘health or diminished earning capacity.’ The leading authority for this principle is Kennon v Kennon (1997) 22 Fam LR 1 (‘Kennon v Kennon’) where it was held that an adjustment should be made for family violence where it had a significant adverse impact on the partner’s ability to contribute to the property pool, or made the contribution more difficult. Although there has been a social recognition of the effects of family violence on an individual’s ability to contribute to the property pool, there are a few concerns with the lack of recognition in the Act. Firstly, such an adjustment is rarely made, and even so,
8 | The Brief
the adjustment often has a minimal impact, with the average adjustment being 7.3% of the settlement. Secondly, the adjustment is heavily criticised due to its complexity and uncertainty which may also be indicative of why it is rarely applied in family violence matters. Consequently, a lack of certainty diminishes the confidence of victims of family violence in the justice system, especially when the perpetrating partner is unwilling to negotiate. Understandably, it is difficult to endure a court proceeding without the confidence of being adequately compensated for the violence where it has significantly impacted their ability to contribute to the property pool. This lack of confidence has forced many women to leave an abusive relationship without any assets or property. It is clear that something must be changed to provide justice to victims of family violence. The Australian Law Reform Commission proposed that the adjustment should be made in the form of compensation, rather than a quantum of damages as a proportion of the asset pool as this could lead to arbitrary application. Effectively, this will avoid the complex application of the Kennon v Kennon ruling and provide greater clarity and statutory protection in this area of law. Taking a strong stance against family violence would be a step towards restoring trust in the legal system for victims of family violence.
Ed.1 2020
