Can Family Violence affect your property settlement after a separation?

In short, yes. However, it is not a card that any litigant would delight in playing. The effects of family violence can be widespread and long-lasting. The Family Law Act 1975 provides a very broad definition of family violence, extended to both damage of property, exposing children to the aftermath of a scene of violence and financial abuse.
In the past, the impact of family violence on cases of property settlement has been grey and at times swept away into the “too hard” basket. How would it be quantified? Is it a negative contribution or something else? Is the Family Court the correct place to be bringing it up? And do we need to involve other jurisdictions?
Recently, in the case of Allsop & Allsop [2019] FCCA 309, the Court provided a comprehensive and measured analysis of the law on this topic. In this case, the parties consisted of a husband (who was the primary income earner) and a wife (who looked after the home and the children). The Court determined that over a period of 40 years, the wife endured family violence at the hands of the husband. In this case, the Court identified that the effect of family violence can lead to an adjustment of the property pool in the following ways:
• a negative impact – for example, the violence has reduced the financial contributions of a party because they are no longer able to work; or
• a positive impact- for example, where the quality and nature of a party’s contribution is increased because the violence would have made the provision of that contribution a more arduous task for that party
Since the mid-1990s, there have been a string of cases which suggest that family violence can indeed have a significant impact on a party’s financial, non-financial and other contributions to the welfare and wealth of the family. The founding cases of Kennon and Kennon [1997] FamCA 27 set a precedent that provided for an adjustment of the net assets of the parties in favour of the victim of family violence in circumstances where the violence was serious, repetitive and impactful on a party’s ability to contribute to the relationship.
In summary, the case provided that family violence can impact a property settlement when there is:
1. Evidence of repetitive and violent conduct during the relationship; and
2. Evidence of an identifiable and significant adverse effect on the party’s ability to contribute, whether financially or non-financially, or the violence has made the contributions significantly harder to carry out; and
3. that a connection is be established between the violence and impact on the contributions; and
Importantly, the Courts have indicated that these principles only apply in “exceptional circumstances” to a “narrow band of cases”. This principle has been largely followed and adopted. Given the complexity principle, you should obtain legal advice as to whether your experiences may result in an adjustment to the net asset pool.

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