Property – Kennon – Impact of family violence may be considered as relevant factor both in assessment of contributions (s 79(4)) and assessment of future needs (s 79(5)), but Court must explain “predictive prospective factors” anticipated to impact victim.
In Pantoja [2025] FedCFamC1A 104 (18 June 2025), the Full Court (McClelland DCJ, Gill & Carter JJ) allowed an appeal from property adjustment orders for an equalisation of superannuation and a 59:41 per cent division in favour of the wife.
The trial judge found that the contributions of the parties during the marriage were equal, but the husband had subjected the wife to family violence “in a manner that significantly impacted upon the burden of contributions made by her” ([2], [3]).
The husband appealed. He challenged the court’s determination of family violence (and its impact upon contributions), the adjustment made by the court in respect of the family violence and also said that the court’s reasons were inadequate.
The Full Court said (from [62]):
“The assessment of the family violence impact came in the context of the prior finding of equality of contributions during the relationship. It involved a departure from that intermediate conclusion based upon a further conclusion as to the impact of family violence. That is, it was a facet of the contributions, or a particular circumstance of the respondent’s contributions, that was considered in a manner that was partitioned from the balance of the assessment of the myriad of contributions. ( … )
[71] … [T]he impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to s 79(4) of the Act and also in the assessment of future needs pursuant to s 75(2) of the Act (Boulton & Boulton [2024] FedCFamC1A 132 …). If that later course is taken, however, the trial judge must explain the ‘predictive prospective factor[s]’ that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity …. That did not occur in this case and in failing to do so the primary judge was in error.”
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