Family Violence in Australia: Does the current approach protect victims?
By Tamara York
Prevalence of Family Violence in Australian Society
Family violence is defined in the Family Law Act 1975 (Cth) (‘Family Law Act’) as threatening, violent, or coercive behaviour that causes the victim to be fearful. It is not confined to physical abuse and encompasses sexual, verbal, economic and psychological abuse.
In Australia, up to 60% of separated couples with children report incidents of family violence during and after separation, with 70% of these reporting that children have been exposed to family violence. Additionally, the restrictions imposed by the COVID-19 pandemic have seen an increase in family violence and an increase in domestic violence-related homicide. Therefore, domestic violence is a prevalent issue in Australian society. However, the Family Law Act has been slow to recognise and address the impact of domestic violence on family law matters.
Family Violence and its Relevance to Divorce and Property Settlements
Historically, family violence has not been a factor that the court could consider in adjusting the property rights between parties in property settlements for divorce proceedings.
However, the seminal judgment in Kennon v Kennon [1997] FamCA 27 held that family violence can be a factor that impacts a party’s property interests under s 79 Family Law Act. The relevance of family violence is based on whether the violent conduct impacted the victim’s ability to contribute to the property or welfare of their family. It requires a course of violent conduct to exist and proof that it had a ‘significant adverse impact’ on the victim’s contributions to property, or made the victim’s contributions more ‘arduous’ as a result.
The Kennon judgment represented a marked development in Australia’s family law regime as it recognised the impact of family violence in property proceedings. However, the Kennon approach has been heavily criticised due to the indeterminacy in application of the principle and the absence of legislative reform to clarify the approach. Due to this, Kennon adjustments are seldom applied and generally result in modest adjustments to property settlements.
Proposals for Reform
Due to the indeterminacy and failure to correctly interpret the Kennon adjustment, the Australian Law Reform Commission (‘ALRC’) in 2019 submitted its report ‘Family Law for The Future – An Inquiry into the Family Law System’, which proposed introducing a statutory tort of family violence within the Family Law Act.
Under the proposed tort, a party would need to prove two elements: firstly, that the abuse between the parties occurred within the context of a marriage or de facto relationship; and secondly that the conduct constitutes violent, threatening or coercive behaviour that induces fear within the victim.
Benefits of Reform in this Area
The ALRC’s proposed tort of family violence has significant benefits which would overcome the shortcomings in Kennon. Firstly, it addresses the economic impact of family violence on victims through its compensatory approach, which focuses primarily on compensating victims for harm, rather than calculating the adjustment based on how the violence impacted the victims’ contributions. In doing so, the tort would represent a statutory reversal of the Kennon judgment.
Additionally, the legislative reform would reduce judicial activism and provide certainty and clarification for victims suffering from domestic violence. It would align Australia’s family law regime with progressive jurisdictions such as Canada and the United States, who have implemented statutory torts of domestic violence to ensure vulnerable individuals receive compensation for their harms suffered.
Therefore, the current approach to addressing family violence is inadequate in tackling the prominent issue of family violence in Australian society. The ALRC’s recommendation is a promising attempt to resolve these issues.