As Family Lawyers it’s quite common for us to deal with matters involving family violence or at least allegations of family violence. We also obviously regularly deal with the division of assets and financial adjustments. Despite the ubiquity of these two common threads in Family Law, family violence and financial adjustments, it’s not as common that these two issues intersect or overlap. The place where these two reoccurring themes of Family Law collide and must grapple with one another is Kennon adjustments.
It makes sense to begin with the seminal case, that is now 20 years old. The citation is Kennon v Kennon [1997] FamCA 27, 22 Fam LR 1. It’s a Full Court decision. The key passage from this case comes from the majority judgment of Justices Fogarty and Lindenmayer:
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, 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 within s.79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion.”… “To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.”.
It is a question for Family Law practitioners, when they are receiving instructions from a client, to be considering whether the conduct described to them would constitute “a course of violent conduct” that made their client’s contributions as a breadwinner and/or homemaker “significantly more arduous than they ought to have been”. Before I get on to the question of what sort of evidence would likely obtain a Kennon adjustment I’ll set out some of the significant components of the Kennon case.
The salient facts of the Kennon case were that it was a cohabitation of five years (the parties did get married halfway through their relationship). There were no children of the relationship, although the husband did have four children from his previous three marriages. At trial the husband was aged 54 and the wife 36. The asset pool (constituted principally of real estate) was $8.8 million at trial. The husband earned approximately $1million per year as the owner of an advertising company and had accumulated over $830,000 of superannuation. The wife earned approximately $45,000 p.a. prior to marriage, ceased work during the marriage and was earning $36,000 p.a. at trial. There may be an assumption, that family violence is confined to lower socio-economic demographics and matters involving small asset pools. However, the Kennon case is an example that family violence can be a live issue in matters where the asset pool is large. In today’s money, I would estimate that the Kennon pool would be worth around $20 million, probably more.
The applicant wife was awarded $400,000 at trial being $200,000 for s 79 factors and $200,000 for s75(2) factors. The wife successfully appealed this decision (and the husband cross-appealed) and she was awarded an additional $300,000 than at first instance. On appeal the wife was awarded $700,000, being $400,00 for s 79 factors and $300,000 for s 75(2) factors. The amount of the Kennon adjustment was not specifically quantified and simply formed part of the wife’s s 79 contributions entitlement. The $700,000 the husband was ordered to pay to the wife represented approximately 8% of the total (non super) pool.
In Kennon the wife relied upon seven specific allegations of physical assault and also upon general allegations of repeated aggressive, threatening and intimidating behaviour from the husband which caused her to have fear of physical violence being visited on her. Aside from the significant detail the wife went in to in her affidavit material regarding the family violence, there was also evidence before the trial judge from three doctors.
The evidence of the three doctors
The wife had evidence from three doctors supporting her claim. I will go in to a small amount of detail about these three doctors because in my view they were very significant in the wife ultimately being granted a Kennon adjustment. If a Family Law solicitor is able, on both a practical and financial basis, to obtain a report from a medical or mental health practitioner regarding the impact of family violence on their client, then I would strongly recommend this be obtained. In Kennon, the first doctor was Dr Wilton, who was the wife’s General Practitioner (“GP”) for two years prior, and during the five years of cohabitation. Secondly, there was Dr Wu, a psychiatrist, who provided the court with a report having been engaged by the wife’s solicitors. He interviewed the wife on a number of occasions over the course of 3 months before trial. Lastly there was Dr McMurdo who was a psychiatrist who saw the applicant wife at the request of the husband’s solicitors and he also produced a report.
Dr Wu’s gave evidence at trial but his evidence was largely if not entirely rejected by the trial judge. According to Justice Baker, the dissenting judge on appeal, the trial judge found Dr Wu to be “an advocate for the wife, contradictory and less than professional.”
The trial judge’s findings, on which the Court of Appeal had to base their judgment, was largely based on the evidence of Dr McMurdo, ironically the psychiatrist engaged by the husband. Dr Wilton, the GP, had sworn a very detailed affidavit and was subjected to extensive cross-examination. Dr Wilton’s diagnosed the wife as suffering from “an anxiety state” in 1992; in 1993 she “presented with vague symptoms of lethargy, anorexia, light headedness and fainting episodes and when questioned she confirmed she was unhappy and stressed”; in August 1993 she was suffering from shingles; she again saw the GP in September and November 1993 regarding her deteriorated skin condition. Dr Wilton saw the wife several times after the final separation of the parties and observed the wife to be “much more like her previous self”.
Dr McMurdo was not cross examined at trial but his report generally supported the GP’s opinion and he diagnosed her as suffering from “an adjustment disorder with depression and anxiety” that had at trial “predominantly resolved” and she “was quite fit for employment”. This was hardly a startling opinion given the fact that the wife had, by the time of the trial, recommenced full time employment. Given the fact that the trial judge rejected the evidence of Dr Wu, there were really only two doctors on which he made his finding of fact. The psychiatrist engaged by the husband, Dr McMurdo, based much of his findings on the history of the wife attending the GP. In many ways it was the evidence of the humble GP that was the most significant professional evidence in the trial. In my view, the fact that the GP was able to refer to his history of contemporaneous notes regarding medical appointments with the wife over the course eight years was important. These medical file notes enabled the GP to describe the wife’s health before, during and after the relationship. These GP file notes corroborated the wife’s evidence.
Why is a Kennon adjustment only a contributions claim and not future needs too? It appears, according to the GP, that at the time of trial, the applicant wife had mostly regained, her pre-marriage disposition. This meant that the trial judge did not have to consider her future needs in the context of the family violence. In other words, the wife was basically not suffering from any ongoing physical or psychological issues as a result of the family violence she endured and therefore Justice Coleman did not have to consider this in a future needs context.
However, it is important to briefly cover the situation in regard to a future needs claim. As has been mentioned, a Kennon claim can only be made as a s 79 contributions consideration. The reason why Kennon claims cannot be made as a section 75(2) or future needs claim is simply because an applicant doesn’t need to. An applicant need only establish a future need, they do not need to show causation from family violence. For example, whether an applicant has a health condition as a result of family violence or some other reason, if that health condition exists at trial and gives rise to a future need then that is enough. If a judge was to base their granting of a future needs claim on whether the need had been caused by family violence then that would be falling in to error.
It is also important to note that when a judge makes a Kennon adjustment they are purely exercising their discretion under s 79. It is not about compensation for the applicant, or punishment or deterrence for the respondent. There are several other jurisdictions in which these things may be sought. One exception to this is a potential tort claim.
Potential Tort Claim
One unusual aspect of Kennon is that the trial judge simultaneously heard and decided a common law tort claim by the wife for damages for the domestic violence of the husband and the “normal” Family Law proceedings regarding the division of assets (made unusual by the success of the wife’s Kennon adjustment claim). This was enabled via the cross-vesting legislation and may be something a client may do to save on the costs of litigation in multiple jurisdictions. It is interesting to note that the trial judge in Kennon awarded the wife in total $43,000 by way of compensatory, aggravated and exemplary damages in her tort claim (for four of the seven specific incidents of family violence alleged). The judge’s award of damages allowed for the psychological suffering which he found was caused to the wife by the husband's assaults. The Court of Appeal did not disturb this award and simply noted that the trial judge was correct in making it clear that the award of damages was to be disregarded in the s 79 claim, otherwise, in many cases the victim may (unfairly) contribute to their own damages award.
Baranski & Baranski [2012] FamCAFC 18 : Full Court Family Court
This case is a relatively recent affirmation of the Kennon adjustment principle that dispels any doubts that may have been entertained that the original Kennon decision was not “good law”. See for example, Federal Magistrate Brewster’s comments in Palmer [2010] FMCAfam 999 that went on appeal and Brandow [2010] FMCAfam 1026 where he refused to grant a Kennon adjustment because he believed the earlier quoted key passage in Kennon was obiter dicta and therefore not binding on him.
In Baranski, the basic facts were that there was four years of cohabitation. The wife had two teenage children from a previous relationship but there were also twins born of the relationship, that were aged approximately 18 months at the time of separation. The asset pool was only $238,000 at trial with approximately $57,000 worth of superannuation. The substance of the parenting orders made by the Federal Magistrate after trial continued the prohibition on the husband spending any time with the children and restricted the husband’s communication with the children to the provision of censored gifts and cards to the children on their birthdays and Christmas.
According to the trial judge in Baranski “The violence committed by the husband against the wife was endemic in their relationship and serious in its intensity. In my view, the evidence indicates that the degree of violence inflicted by the husband on the wife was increasing. It is not an exaggeration to say that the final assault, committed by him, on the wife, was potentially lethal. In addition, the two most serious episodes of violence occurred in the presence and hearing of the children concerned.”
The most significant incident in this case for Family Lawyers is the husband’s most serious assault on the wife, just over a year after separation. The husband pleaded guilty to breaching an Intervention Order for this serious assault and spent 7 months in prison for it. The husband was released on home detention for a further 14 months after that.
Ultimately, the wife received a 10% adjustment for Kennon reasons and her post separation contributions. The significance of this decision is that it extends the scope of Kennon adjustments to include any family violence incidents that have occurred after separation (but prior to Family Court judgment).
Czeb & Czeb [2012] FamCAFC 53 – Full Court of Family Court
The third Full Court decision I will refer to, had some unexpected features, the first, being (despite appeals all the way to the High Court) the husband was sentenced to 17 years imprisonment for an extremely violent post separation physical attack on the wife.
This occurred when the parties met almost a year after separation and had lunch together at a shopping centre and discussed the division of assets. After this lunch, the parties returned to the wife’s car and the discussion continued with them both seated in the car. The husband then attacked the wife. Ultimately it appears the husband was found guilty of a (NSW) charge worded something along the lines as “wound with intent to murder”. He is not due for release until some time after 2020.
It is interesting to note that, in the Czeb decision there was no adjustment made for the just mentioned, post separation, attempted murder attack. The trial judge confined the wife’s Kennon adjustment to the family violence she endured during the relationship. This was not disturbed on Appeal because the Full Court decision in Baranski, extending the scope of Kennon adjustments, had not been handed down at the time of the Czeb trial.
The facts of the Czeb case were that the parties were born in Europe, commenced a relationship around the age of 20 that endured for approximately 27 years. They migrated to Australia in 1998 around age 39 and had a daughter that was 22 when the parties separated in 2006. Both parties were qualified in a profession in an European country but were unable to work as professionals in Australia. The wife had been the sole breadwinner for the family for most of the 1990’s.
After the husband was imprisoned for his attempted murder of her, the wife was freed from his sustained brutal physical abuse during the relationship and at trial the wife had a “research contract” and was earning $160,000 per year from her employment. For this reason there was no s75(2) adjustment for the wife’s future needs. The wife did however receive a 10% adjustment for her Kennon claim. What assisted the wife in obtaining this Kennon adjustment was no doubt the husband’s incarceration but also the fact that the party’s adult daughter gave detailed evidence that corroborated the wife. There were no doctors in the Czeb case.
Federal Circuit Court decisions
There are several decisions from Judge Altobelli regarding Kennon’s claims making him the Judge who has granted the most Kennon adjustments in Australia. Judge Altobelli’s cases, in chronological order, are: Kucera [2009] FMCAfam 1032 15% adjustment for the wife’s Kennon claim; Kozovska [2009] FMCAfam 1014 10% adjustment for the wife’s Kennon claim; Kempton [2013] FCCA 1360 15% adjustment for the wife’s Kennon claim; and Maddox & Merz [2014] FCCA 2158 10% adjustment for the wife’s Kennon claim.
There have been other decisions in the Federal Circuit Court that are also of significance. In chronological order: Devon [2014] FCCA 1566 where Judge Burchardt made a 5% Kennon adjustment; Rockman [2014] FCCA 1966 where Judge Bender granted a 7% Kennon adjustment; and Linton [2015] FCCA 806 where Judge Harland granted a 10% Kennon adjustment.
Practical Application of the Kennon Principle
Whilst caselaw is all well and good, it can be helpful to have this distilled down into practical principles that can be applied to the clients and instructions you face. The first thing, is that your client will need to be specific in their instructions regarding every incident sought to be relied on. There will need to be as much detail as possible regarding each incident. The aftermath and suffering caused to the victim will also need to be described. This may be an unpleasant process for your client to go through but must be done nonetheless.
As always, any independent evidence regarding an incident of family violence will be of significant value. So for example, a report from a medical or mental health practitioner will obviously go a long way. Particulary if that doctor has had a long history of treating the client, such as the GP in the Kennon case. Copies of any Intervention Orders and potentially any associated proceedings such as, breaches, criminal charges, etc. Any photographs of an injury sustained will assist. So too, copies of doctor’s prescriptions for any medications such anti-depressants etc. If a client has stayed at alternate accommodation from their partner due to Family Violence, then evidence from that accommodation provider of at least the dates the alternate accommodation services were used. A client may have taken absences from work because of particular incidents and any employer or other documentation regarding this could help.
Affidavits from family members and friends may not carrying as much weight with the court as hoped, particularly in the absence of independent third party evidence because of actual or perceived bias.
What will not assist your client in seeking a Kennon adjustment is general and vague complaints about their former partner. It’s pretty standard for clients to have many negative things to say about their former partners, but has their former partner’s conduct had a significant adverse effect on their contributions?
Does your claim need to be “exceptional”
It is not particularly surprising that the majority Justices in the Kennon case cautiously worded the sort of financial adjustment they were about to create as “exceptional”. It is understandable that the majority in the Kennon case were concerned about opening what they called “the floodgates”. They were terrified that they would be swamped with
Kennon claims. However, Kennon was decided in 1997, twenty years ago and some things have changed since then.
The Full Court made it clear in the unanimous decision of S & S [2003] FamCA 905 that the references in Kennon to “exceptional” and “the relatively narrow band of cases to which these considerations apply” was not understood to mean “rare”. Their Honours cited with approval a section of the judgment of the trial judge in S & S who said “… it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernible impact’…”.
Conclusion
In my view, if you have sufficient evidence of the “impact” of family violence on your client, and particularly if it is corroborated, then make the application. If you don’t have sufficient evidence, then don’t. It’s not really a question of whether something is exceptional or not, just whether there is sufficient evidence. If you are able to display “a discernable impact upon the contributions” of your client, then seek a Kennon adjustment.
If you have a matter that involved an ongoing course of violent conduct that made contributions significantly more arduous than they otherwise would have been, or any other matter involving Family Violence, you are welcome to contact Marcus to discuss. Marcus will work with you to resolve your dispute in an efficient and mindful way.
Marcus’ mobile: 0400 619 317
Foley’s List (03) 9225 7777
