Property – consideration of Kennon – court erred…

family law casenotes

…failure to explain how husband’s violence impacted wife’s non-financial contributions

In Martell [2023] FedCFamC1A 71 (15 May 2023), Aldridge J heard a husband’s appeal from a 60:40 property division in favour of the wife, after a relationship of around 17 years.

The trial judge found that financial and non-financial contributions were equal, save for the wife being subjected to family violence ([6]).

Following consideration of Kennon [1997] FamCA 27, the trial judge found the husband was controlling and aggressive, and the husband’s violence made the wife’s contributions to the family more arduous ([16]-[17]). Aldridge J said (from [29]):

“ … [H]er Honour said ‘the wife’s non-financial contributions were impacted and made more difficult and distressing’ … and ‘more arduous’ …


[31] The difficulty … is … that the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous. …



[35] … Whilst the events described by the wife were no doubt distressing, the evidence and the findings did not deal with the magnitude and extent of its effect. Whilst matters can certainly be inferred, that inference must be properly based on the evidence before the court.


[37] Here … the violence is at a lower end of the spectrum. The wife did not give any evidence of the effect of it on her other than to say she was scared at the time, could not eat for a few days after being punched in the face and once stayed the night away from the matrimonial home. The description of the events themselves can only give rise to an inference that the adverse impact on contributions was also at a lower end of the spectrum.”

His Honour concluded (from [74]):

“… Had this been the only error in the reasons … consideration would need to be given to its materiality given the other matters taken into consideration. It is not, however … ”


The appeal was allowed, orders set aside, with directions made for written submissions as to the re-exercise of discretion.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). 

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