Property – contributions must be considered ‘holistically’ and ‘weighed collectively’

In Benson & Drury [2020] FamCAFC 303 (7 December 2020) the Full Court (Strickland, Watts & Austin JJ) dismissed with costs an appeal by a de facto husband.

The parties’ jointly submitted at trial that their contributions were equal save for two disputes: initial contributions; and the respondent’s claim that domestic violence had made her contributions significantly more arduous per Kennon [1997] FamCA 27 (Kennon).

Judge Kari declined to give greater weight to the appellant’s initial contributions, finding that to do so would ignore the contributions of both parties. Her Honour found that the appellant perpetrated physical violence against the respondent, concluding that the respondent’s “Kennon claim is made out. (…) I have assessed the adjustment at 5% such that the division was 55:45 overall.”[20]

The Full Court said (from [34]):

“(…) [T]he … judge found the parties’ overall contributions were equal … then went on to reason that the [respondent’s] … contributions warranted an ‘adjustment’ of an extra five percent as her ‘Kennon claim’ was made out.

[35] The … question … is how a judge takes into account the contributions of one party, … made significantly more arduous by the conduct of the other … . The answer is … a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties (…)

[37] [T]he use of the short-hand descriptor of a ‘Kennon claim’ is … liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (…)

[77] … [C]onsidering all of the evidence before the primary judge, including the evidence about the [appellant’s] … initial contribution of real property and the impact of family violence on the [respondent’s] … contributions, … an appropriate, just and equitable contribution-based division … is 55/45 percent in the [respondent’s] … favour.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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