In this video, special counsel Leeann Murphy talks about the impact of family violence on property settlements.
Hi. I’m Leeann Murphy. I’m a member of the family law team at Cooper Grace Ward lawyers.
What are Kennon cases?
In property settlement cases one of the court’s considerations will be each party’s contributions to the asset pool. A 1997 case called Kennon determined that one party’s conduct being family violence against the other could result in an adjustment in property settlement matters. In this respect, the Kennon case required: a course of violence conduct to be established, the violent conduct must have had a discernible impact upon the victim, the victim’s contributions must have been made significantly more arduous in light of that conduct.
Assessing contributions in Kennon cases
How to assess contributions in Kennon cases has been the subject of many cases since 1997. Kennon required that the effect of family violence had to be quantified and that the evidence be expert evidence. The evidential burden of proving the existence of the conduct, the discernible impact of that conduct, and the fact that that conduct made the contribution significantly more arduous, fell on the victim to prove. Traditionally, due to that evidentiary burden, these were very difficult cases to run and win.
What’s changed in more recent cases?
The case of Keating in 2019 deviated from that principle. Keating allowed for that evidence to be considered in a holistic way. Importantly, that case allowed the court to infer that certain conduct would have an effect on contributions rather than requiring expert evidence.
The 2022 decision of Ferman and Lapham determined that the evidence could be considered from a qualitative perspective. In this case, the court provided that a more holistic approach to assessing contributions to the whole pool was appropriate. In these cases, the focus is now on getting the best evidence available.
If you need advice on these issues, contact us at Cooper Grace Ward Lawyers.