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Property – systematic family violence – failure to establish contribution-based adjustment be quarantined

In Loncar [2021] FedCFamC1A 14 (21 September 2021), the Full Court (Strickland, Ainslie-Wallace & Watts JJ) heard a wife’s appeal from final property orders made by Judge Kemp.

After a 12-year relationship, Judge Kemp found that “the husband subjected the wife to a systematic pattern of family violence” ([16]) and made a 7.5% adjustment for her Kennon claim and a further 10% based on 75(2) factors ([28]) – that is, s75(2) of the Family Law Act 1975 (Cth) (Act).

The wife argued that as the contribution assessment was based on violence by the husband towards her, Judge Kemp erred in not quarantining the contribution adjustment from consideration at the third stage.

The court said (from [61]):

“ … [I]n our view the application of the principles articulated in Kennon does not fall within the same rubric as the approach applied in the cases relied upon by the wife, which are claims in tort.

[62] In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties. The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence may be a relevant prospective consideration at the third step.

[63] … [T]here is no warrant in s75(2)(b) to discount the outcome of the analysis under s79(4)(a)-(c) of the Act based on a Kennon argument. Nor in our view does s75(2)(o) or s79(2) create scope for the approach suggested by the wife.

[64] … [W]e find the primary judge did not err in failing to quarantine the 7.5% the wife achieved as a result of her Kennon argument …”

The wife’s appeal was dismissed and no order was made as to costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. 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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