The Kennon Principle- Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”).
Table of Contents
Violent Conduct & The Effect On Property Issues.
Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions 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 within Section 79 of the Family Law Act. (Alteration of property interests. In property settlement proceedings, the court may make such order as it considers appropriate.)
These principles should only apply to exceptional cases.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity, it does not encompass conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions)
The principle only applies to a “relatively narrow band of cases”. There is a necessity for a party to demonstrate that the course of conduct had a significant adverse impact upon a party’s “contributions”, or to have made such “contributions” significantly more arduous than they ought to have been.
Where there is an allegation of domestic violence it is necessary for a party seeking to establish:
(i) The incidence of domestic violence;
(ii) The effect of domestic violence;
and to adduce evidence to enable the Court to quantify the effect of that violence upon the party’s capacity to contribute within the bounds of contributions considered pursuant to Section 79. (Meaning of contributions-Refer below)
There needs to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions and, depending upon the nature of the violence established, in the absence of express evidence, about the effect that violence had on the victim spouse’s contributions.
The relevance of contributions in Section 79 of the Family Law Act
The Court when considering what order (if any) should be made in proceedings with respect to the property, the Court considers:
- Financial contributions made directly or indirectly by or on behalf of a party to the relationship or a child of the relationship to the acquisition, conservation or improvement to any of the property of the parties or otherwise in relation to the property whether or not the property since the making of the contribution has ceased to be the property of the parties;
- Contributions other than financial contributions made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement to any of the properties of the parties, or otherwise in relation to any property that since the making of the contribution has ceased to be the property of the parties;
- Contributions made by the parties to the welfare of the family and any children including any contributions made in the capacity of homemaker or parent;
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