Court can adjust property allocations in favour of victims of family violence

The violent history of a husband towards his ex-wife can be relevant in deciding the value of the wife’s contributions in property proceedings cases.

While evidence of violence in a relationship does not always influence the outcome of these cases, there are some circumstances where it has certainly been considered by the court to be relevant.

Facts of Friar & Friar and Anor [2014] FAMCA 689

The Applicant (the wife) and the Respondent (the husband) were in a relationship for 35 years, spending the initial 12 years as a de facto couple and the remaining years married.

During the relationship, the husband’s major contributions were financial, whereas the wife’s contributions were in her role as a homemaker and parent.

During the assessment of contributions and future needs of the parties, an issue arose around the alleged violent conduct of the husband during the relationship.

The key question by the court was: were the wife’s contributions during the relationship made more arduous due to the husband’s alleged violent conduct?

Court decision

The Family Court found evidence that there were violent assaults while the wife was heavily pregnant with the parties’ children; threats to the wife with both a knife and gun at different points of the relationship; multiple allegations by the wife of rape; the wife being forced to strip naked in public under threat of violence to her extended family; the wife being dragged by the hair, and having her hair ripped out.

Justice Murphy said: “The wife’s contributions as the primary homemaker and parent and, indeed, as a wage earner were made, as I have found, very significantly more arduous by reason of the course of serious family violence perpetrated upon her by the husband and the resultant physical and psychological effects upon her.”

Justice Murphy ultimately found the wife’s contributions were made more difficult and attached weight to it in assessing the overall assessment of contributions, which was determined as 60 per cent to the husband and 40 per cent to the wife.

Evidence of violence in a relationship is often not enough to persuade a Court to make an assessment different to what it would have ordinarily made if there was no violence. But the leading case of Kennon & Kennon has stated:

“… where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated… to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions”.

“Unfortunately, family lawyers deal with matters where there are various allegations of violence, Violence can be physical or psychological. In any event, legal advice should be sought to determine whether a case meets the threshold issues set out in case law.”

For expert advice on your Family Law matter, please contact Streeterlaw on 8197 0105 or email advice@streeterlaw.com.au.