Treatment of Kennon arguments in relation to post separation contributions

09 OCT 2018

 

This year marks the 20th anniversary of Kennon & Kennon, the historic decision which made family violence relevant to a property settlement proceeding.  

Fundamentally, the case established the principle that, when assessing a party’s contributions to a relationship, the Court may take into account a course of violent conduct by one party towards the other that has had a significant impact on the party’s contributions or has made his or her contribution significantly more difficult than it ought to have been.

To successfully raise a Kennon argument, the Court must be satisfied that:

  • there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and
  • this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage; or
  • the conduct had made the party’s contribution significantly more difficulty than they ought to have been.

Prior to Kennon, the judiciary was reluctant to consider family violence as a relevant factor in a property settlement proceeding.

Subsequent to Kennon & Kennon, case law predominantly focus on the contributions made by parties during a relationship. We stop to consider whether Kennon-type adjustments can extend to an assessment of post separation contributions.

Case Law - the relevance of Kennon to an assessment of post separation contributions.

A number of post-Kennon authorities support the argument that there is a relatively narrow band of cases or situations in which a Kennon type adjustment can apply.  For example, in the decision of Kozovska and Kozovski, Federal Magistrate Altobelli adopted a more restricted interpretation of Kennon:

“The Full Court’s decision focuses on conduct during the marriage, but not afterwards, which suggests that the concept was not intended to apply to post separation contributions”.

These sentiments were also echoed in Kucera & Kucera, in which the Federal Magistrate reiterated that the Kennon principles operate retrospectively and not prospectively. 

His reasoning was underpinned by the argument that Kennon emphasises a contribution based assessment, not a “future needs related assessment”. 

Baranski Breaks the Mould

In 2012, the Full Court decision of Baranski & Baranski & Anor broke the mould, in establishing that Kennon type arguments may apply to post separation contributions. 

By way of background, Baranski was an appeal in respect of parenting and financial orders that were made by Federal Magistrate Brown. The financial orders made by the Magistrate provided for a division of (non-superannuation assets) of the parties, in a share of 70% to the wife and 30% to the husband.

On appeal, the question raised was whether the decision of the Federal Magistrate to make a “Kennon-type” adjustment in favour of the wife which, together with her post separation contributions, amounted to a 10% uplift. 

The father attempted to rely upon Kucera & Kucera and Kozovska & Kozovski to support the argument that a Kennon assessment has to be applied conservatively (and did not extend to post separation conduct).  However, the Full Court accepted the argument that the husband’s violent conduct towards the wife made her role as primary care giver for the children “significantly more arduous”

Relevantly, the Court upheld the decision of the Magistrate and found that it would be “illogical and unjust” to find that a Kennon type argument could be made in relation to violent conduct during a marriage, but not thereafter. 

The Court ultimately found that there was “nothing in the provisions of Section 79 or in logic which suggests that post separation contributions of any kind are not relevant to determining a just and equitable apportionment of the property of parties to a marriage”

Indeed, Baranski was a game changer. 

In Damian & Damian [2012] Fam CA 535, the husband contributed the bulk of the capital to a marriage but the wife primarily cared for the child during the post separation period.  Justice Watts spoke in some length about the scope of Kennon’s application to violent conduct perpetrated by the husband against the wife (both during the relationship and after separation).  Of notable significance was the fact that the wife suffered from Post-traumatic stress disorder as a result of her husband’s conduct.

Interestingly, Justice Watts, in his assessment of contributions and of Kennon, separated the conduct into two distinct periods:

  1. Conduct which occurred from the first act of violence to the date of separation; and
  2. Conduct that occurred from the date of separation to the date of hearing.

In relation to the second period, Watts found that the husband’s behaviour during the marriage led to an effect on the wife that made her contributions (for some period after the separation) to be significantly more arduous. On that basis, Watts increased contributions the wife had made since separation by an uplift of 5% on what they would have been, had they not been made significantly more arduous by the husband’s conduct.

In Jarvis & Seymour [2016] FCCA 1676, a 5% adjustment was also made in the wife’s favour on the basis the wife’s contribution as a parent was rendered more arduous as a result of a husband’s family violence in the post separation period.  Interestingly, the case was heard before Judge Altobelli, who appeared to have somewhat tempered his approach post Baranski.

Finally, in the 2013 first instance Judgment of Lad & Gittins, Justice Austin also endorsed the Baranski interpretation of Kennon.  He expressly acknowledged that a situation in which one party made the other party’s post separation contributions more arduous or difficult “may stall fall within the rubric of Kennon principles”

Summary - Practical Tips.

In order to successfully raise a Kennon type argument, the Court must be satisfied that there is a causative link between the violent conduct itself and the loss suffered. It is important to remember that the Kennon principles should only apply to exceptional cases. In summary:

  1. The Full Court decision of Baranski & Baranski has extended the requirement that family violence must have occurred during a marriage.
  2. The case establishes that post separation family violence and conduct can also be relevant to an assessment of a party’s Section 79 contributions. 
  3. If you were considering running a Kennon type argument in relation to post separation conduct and contributions, sufficient or enough evidence should be provided setting out the effect of that violence on a party’s contributions. 
  4. Practitioners should be aware that the Full Court’s findings in Britt & Britt and S & S has someone loosened the formerly strict evidentiary requirements that applied in respect of Kennon type claims. 

If you require more information on the above article contact Nevine Yousef on (02) 4626 5077 or nyoussef@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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