THE IMPACT OF VIOLENCE, ABUSE AND COERCIVE CONTROL IN FAMILY LAW

Part One: Impact On Contributions

Family violence is a serious and pervasive issue affecting individuals and families around the world. Its impact is far reaching, affecting not only the physical and emotional wellbeing of those involved but also their financial security and legal entitlements. In the realm of family law, family violence can play an important role in the division of property and contributions made by each party. The legal system at common law has recognised the complexities of these situations, acknowledging that the effects of family violence can be profound, influencing both the physical and psychological capacities of the affected individuals. Recently, these effects have been recognised at the statutory level with amendments made to the Family Law Act.

In this post, we will explore the concept of family violence, its effects on contributions within a family law context, the Kennon principle, and the most recent amendments to the Family Law Act, particularly those related to family violence. Through understanding these elements, we can better appreciate the importance of recognising family violence in family law proceedings.

I. WHAT IS FAMILY VIOLENCE?

Family violence, often referred to as domestic violence, encompasses a wide range of abusive behaviours that one partner may use to control, manipulate, or harm the other. It can take many forms, including physical violence, emotional or psychological abuse, sexual abuse, financial abuse, and verbal assaults. The patterns of coercion and control that often accompany family violence leave deep emotional scars and, in many cases, result in long-term psychological damage.

It’s essential to recognise that family violence doesn’t necessarily mean physical violence only. It can also include behaviours that undermine the victim’s autonomy or dignity, such as financial control, intimidation, or isolation. The primary effect of family violence is often the victim’s diminished capacity to participate fully in relationships or even to be active participants in society due to the long-lasting trauma.

II. THE IMPACT OF FAMILY VIOLENCE ON CONTRIBUTIONS

In family law, “contributions” refer to the efforts and resources that each party contributes to the relationship or marriage, particularly in the context of property and financial settlements following separation or divorce. These contributions take three forms:

1. Financial contributions such as purchasing the matrimonial home and paying the associated expenses;
2. Non-financial contributions such as gardening maintenance and any activity that increases the value of the asset; and
3. Homemaking/parent contributions such as raising children, cooking and cleaning.

When family violence is present, the capacity of the victim to contribute to the marriage may be impaired. For example, they may have a weakened psychological state or physical injuries and as a result may be unable to engage in the same level of employment, make decisions about financial matters, engage in social events and or drive to collect the children.

In these situations, it is important for family law courts to consider the impact of violence on each party’s ability to contribute. Family violence can also affect the victim’s emotional and psychological wellbeing, which may ultimately affect their ability to engage in the legal process itself. As such, the law recognises that individuals who have experienced family violence may not be able to contribute in the same way that the perpetrator can.

III. THE KENNON PRINCIPLE

Prior to 1997, family violence was not considered in family law property proceedings in Australia due to the prevailing ‘no-fault’ philosophy. This approach stemmed from the elimination of the need for parties to prove their spouse was ‘at fault’ in order to obtain a divorce.  As a result, discussions surrounding family violence were seen as reintroducing the concept of fault into family law matters and were consequently disregarded. However, over time, society began to recognise that women and children were being financially disadvantaged after separation, which led to the realisation that failing to acknowledge family violence was an injustice.

It was only with the decision in the case of Kennon v Kennon that family violence was considered insofar as it directly affected the ability of a spouse to contribute to the marriage. This opened a small pathway, at common law, for victims of family violence to argue for a larger share of the marital property pool, based on the effects of the violence they experienced.

While the Kennon principle was a significant step forward for victims of family violence, its threshold remains extremely challenging to meet. There must be a clear evidentiary link between the harm suffered and its impact on the spouse’s contributions to the marriage. This means that if a spouse, despite experiencing family violence, continued to be the primary financial contributor, it was unlikely that they would be granted a larger share of the property pool, even though the violence may have made those contributions more arduous.

IV. THE MOST RECENT AMENDMENTS TO THE FAMILY LAW ACT

The Family Law Act 1975 (Cth) is the primary legislation governing family law in Australia. In recent years, particularly following the COVID-19 lockdowns, there has been an increased focus on addressing family violence as a critical consideration in family law proceedings, as more couples experienced family violence during this period.

The Family Law Amendment Act 2024 (Cth) (‘the Amendment Act’) makes changes to the Family Law Act 1975 aimed at better addressing the needs of victims affected by family violence. One notable update is the amendment to section 79 of the Family Law Act, which governs property settlements to explicitly reference the impact of family violence on contributions.

1. Family Violence Definition

The Amendment Act clarifies the recognition of economic or financial abuse as family violence within section 4AB of the Family Law Act. Key updates include:

• Moving existing examples of economic or financial abuse into a separate provision.
• Expanding the example of unreasonably denying financial autonomy.
• Adding new examples, such as dowry abuse.

2. Property Framework Amendments

The Amendment Act is essentially a codification of the Kennon principle insofar as it now allows the court to consider the effect of family violence to which one party has subjected or exposed the other party, on the ability of a party to make financial or non-financial contributions or contribute to the welfare of the family.

The phrase “on the ability of” codifies the evidentiary nexus previously required in Kennon, which has been challenging to establish. It is not sufficient to prove that a party was subjected to violence; it must also be shown that the violence directly affected their contributions.

In considering the current and future circumstances of the parties, the court can now assess the following new factors:

• The economic effects of family violence.
• Wastage of property or financial resources.
• Liabilities and their impact on future finances.
• Housing needs related to the care of a child under 18.

Further, family violence is now a factor the court may consider when determining spousal maintenance, allowing the court to assess its economic effects when deciding what order may be appropriate.

V. HOW FAMILY VIOLENCE IS CONSIDERED IN PROPERTY SETTLEMENTS

Family violence will now be taken into account under the contribution assessment pursuant to section 79 of the Family Law Act.  Courts often apply a four-step approach when considering property settlements:

1. Identify and value the assets and liabilities in the marital property pool.
2. Assess contributions: Consider what each party contributed to the relationship before, during and after the relationship in terms of their financial, non-financial and homemaker/parent contributions. Family violence will now be evaluated as part of this step, acknowledging how it may have impacted a party’s ability to contribute.
3. Consider the parties’ current and future circumstances: The court will assess how family violence may affect the parties’ future financial stability and well-being.
4. Determine the final property division: The court will decide on the overall percentage split for dividing the property, including specific orders for the allocation of assets and liabilities, based on the previous assessments.

The Amendment Act explicitly empowers the court to adjust property settlements to reflect the ways in which family violence has disrupted the contributions of the affected party. This may involve increasing the share of the property settlement awarded to the victim of family violence, ensuring they receive a property split that is just and equitable.

If you’re looking for a trusted family lawyer in Bankstown, Blacktown, Burwood, Liverpool, or Parramatta, , Legal One is here to provide expert legal support tailored to your family’s needs.

VI. CONCLUSION

Family violence remains one of the most challenging and destructive issues within the family law system. It not only impacts the safety and wellbeing of individuals but also shapes the financial, emotional, and social contributions within relationships. If you are a victim of family violence and are contemplating separation from your partner, it is important to understand your rights and the support available to you.

At Legal One, we have extensive experience in handling matters involving family violence and are dedicated to helping clients through these difficult and often complex legal matters. Our team can offer the legal expertise, support, and guidance you need to ensure your safety, protect your interests, and secure a fair outcome in your property settlement or parenting arrangements. Contact us today for a free 30-minute consultation.

Information current as at 17 March 2025.

Written by Elizabeth Zouein