Property proceedings

Where separated parties to a marriage or de facto relationship are unable to reach agreement as to the division of their property, they may apply under the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) to have the matter determined by the Family Court of Australia, the Family Court of Western Australia or the Federal Circuit Court of Australia (collectively called here “the family courts”). State and territory courts have jurisdiction to hear defended property proceedings in limited circumstances. They may also, when making a protection order, impose conditions affecting parties’ property, which may in some cases be inconsistent with proposed property orders.

Section 79 FLA (property of marriage) and Section 90SM FLA and Section 205ZG FCA (property of de facto relationship) give the family courts broad discretion to make property orders having regard to a range of factors and the need to be satisfied that any order is just and equitable in all the circumstances. Retrospective factors include the respective past contributions of each party to, for example, the acquisition and maintenance of property, the financial support of the couple or family, and the welfare of the couple or family in the capacity of homemaker or parent. Prospective factors set out in Section 75(2) FLA include the age and state of health of each party, future earning capacity, parenting responsibilities and entitlement to superannuation.

Sections 79 and 90SM do not specify domestic and family violence as a factor to be taken into account by the court when considering an appropriate property order. Rather, judicial officers are guided by case law. The leading authority is the 1997 decision, Marriage of Kennon [1997] FamCA 27 in which the majority stated that where there is a course of violent conduct by one party towards another during the marriage which is demonstrated to have had a significant adverse impact on that party’s contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions pursuant to section 79. The court emphasised that this principle would only apply in exceptional cases.

It has been noted that the Kennon test sets a high threshold for recognition of domestic and family violence in the context of property settlement proceedings as parties alleging violence must prove, on the balance of probabilities, that the violence had a discernible impact on their capacity to contribute to the marriage, or to the arduousness of making such contributions. Further, the Kennon test does not address the potential relevance of domestic and family violence to the prospective factors set out in Section 75(2). The family courts have increasingly recognised the relevance of domestic and family violence in property settlement proceedings; however the Kennon test is difficult to satisfy.

Where the parties have reached a property settlement by agreement, either before the commencement of or in the course of property settlement proceedings, and consent orders are filed with the court for approval, it may be appropriate for the judicial officer to inquire as to whether issues of domestic and family violence have been raised and whether consent has been properly given in order to be satisfied that the order is just and equitable in all the circumstances.

Australian research suggests that domestic and family violence may affect the share of property and other financial resources a victim receives in any post-separation property division with their violent former partner. For example, following the 2006 reforms to the Family Law Act 1975 (Cth), findings indicated that mothers who had experienced violence were receiving a reduced share of property. The potential underlying issues were identified as, first, mothers trading off property entitlements in order to secure more time with their children, and, second, fathers seeking shared time arrangements in order to obtain a larger proportion of property. A later study observed that a reported history of emotional abuse or physical harm may result in a victim feeling pressured or intimidated by the perpetrator/partner into receiving a lower share of the joint property division and being more likely to experience a sense of unfairness. It is important to note that there is no suggestion that the property settlement outcomes reported in these studies are reflected in the jurisprudential approaches of the family courts.