After the introduction of the Family Law Act 1975 (Cth) (“FLA”) in 1975 there were cases were domestic violence was taken into account but they were generally limited to where the violence was such that physical injuries were caused reducing the future income earning capacity of the victim. These sorts of cases were obviously very limited and most victims went uncompensated because there would rarely be an adjustment unless the matter proceeded to a defended Trial and the Court made a finding that such an adjustment as warranted and it was limited to the impact that it had on earning capacity as a consideration under Section 75(2) rather than as a contribution factor.
Between 1975 and 1997 the Court grappled with the concept of family or domestic violence and the issue of how it should be taken into account in the adjustment of property as between separated couples. The Full Court of the Family Court of Australia (as it then was) in Keenon in 1997 expanded the application of family violence and held 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 a party’s contribution 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 that a Trial Judge is entitled to take into account in assessing the parties’ respective contributions under Section 79…”. In other words, the Full Court held that family violence was not only relevant as a future maintenance factor but could be taken into account as a contribution in cases where the family violence made the victim’s contribution “significantly more arduous than they ought to have been”. Unfortunately, the Court went on to emphasise that “It is essential to bear in mind the relatively narrow band of cases to which these considerations apply”. Clearly there was concern that if the “flood gates” were open, the Court would be inundated with cases involving consideration of domestic violence, lengthening the Trial times and having a major impact on the administration of justice by the Family Court.
The Court made it clear that it was not the family violence itself that was under consideration but rather the effect of the family violence and its impact on the contributions made by victims and consideration relating to both present and future circumstances particularly of the victim.
The impact of Keenon was that in practice very few cases resulted in any adjustment having been made for domestic violence either as a contribution or as a future needs or maintenance consideration.
Subsequently, some cases expanded the application of the consideration of domestic violence in an effort to move away from the restraint of the “narrow band of cases” and “exceptional” cases in an effort to open doors to these sorts of considerations in cases involving domestic violence.
The progressive development of these considerations over almost three decades together with the acknowledgement that society’s tolerance for domestic violence was waning created a push towards the amendments to the FLA which came into effect on 10 June 2025.
On 10 June 2025 the FLA was amended so that the effect of family violence is to be considered in the adjustment of property and including future needs. Amendments to Sections 79(4)(CA) and 90SM(4)(CA) now mandate that the Court take into account family violence as a contribution in the breakdown of marriages and de facto relationships. Amendments to Sections 79(5) and 90SM(5) also mandate the Court to take into account family violence as a present and future consideration.
The history of the Family Court’s treatment of family violence in the adjustment of property and assessment of future needs has progressed significantly in the 50 years since the inception of the FLA. Some may argue that the progress has been too slow and although that may be the case, it cannot be denied that it has been difficult to grapple with these issues which largely take place in private behind closed doors, are open to abuse by way of false or embellished allegations which are difficult to defend.
Prior to the amendments to the FLA on 10 June 2025 in a case of Dajani & Dajani [2025] the Full Court of the Federal Circuit and Family Court of Australia approved of the Trial Judge’s approach in taking family violence into account in the adjustment of property on the basis that the Wife’s homemaker and parenting contributions were rendered more arduous both during the relationship and post separation as a result of family violence perpetrated by the Husband and that it is a recognition of the true nature and extent of the contributions and not punishment of the perpetrator.
In Pantoja & Pantoja [2025] which decision was handed down on 18 June 2025 after the 10 June 2025 amendments came into effect the Full Court was asked to consider an appeal by the Husband against Orders where property was split as to 59% to the Wife and 41% to the Husband and superannuation equalised on the basis of the Husband having subjected the Wife to family violence which significantly impacted on the burden of her contributions. Although the Husband’s initial contributions were slightly greater and those during the relationship being equal the Trial Judge made the award of 59% to the Wife as being just and equitable after taking into account the impact of family violence. The Full Court concluded that the findings of the primary Judge were based heavily upon the credibility of witnesses which included the Wife’s son and a child of the parties both of whom were not cross-examined by the Husband. The Full Court concluded the primary Judge had carefully examined the evidence and formed the view as to the reliability of witnesses and their credibility. The domestic violence included violent behaviour whilst intoxicated from 2017 to 2020. The Full Court found that the primary Judge’s conclusion that the Husband’s aggression, verbal and physical abuse and financial control constituted family violence toward the Wife including in the presence of the children and that this conduct worsened after 2017 with increased alcohol consumption and it was open to him on the evidence that there was “discernible” effect on the contributions made by the Wife and that the Husband’s behaviour rendered those contributions more “difficult, onerous or arduous”. She then made an adjustment of and “18% differential” in favour of the Wife. The Husband’s appeal also involved a complaint that the primary Judge failed to see contributions wholistically. The Full Court concluded that the primary Judge had undertaken the appropriate steps in identifying the property pool, assessing contributions including the Wife’s contributions having been made “more difficult, onerous or arduous” in making the necessary adjustment before then considering future needs factors. Although the Full Court approved the primary Judge’s approach in the assessment of the “myriad of contributions” the Court found that there was an appealable error on the part of the primary Judge allocating a specific percentage adjustment attributable to family violence.
The Full Court went on to conclude that “the impact of family violence may be considered as a relevant factor both in the assessment of contributions pursuant to Section 79(4) of the Act and also in the assessment of future needs pursuant to Section 75(2) of the Act … the Trial Judge must explain the ‘predictive, prospective factor[s]’ that are anticipated to impact the victim such as to the potential impact on the victim survivor’s earning capacity. That did not occur in this case and in failing to do so the primary Judge was in error.”
In essence, because it could not be discerned from the primary Judge’s reasons whether the percentage division was for matters arising under Section 79(4) or Section 75(2) or both the appeal was successful.
This coupled with the fact that considerable Court resources need to be applied towards these matters has necessitated proceeding with caution. The wheels of justice may turn slowly but they have been turning nevertheless and time will tell whether the current amendments will address society’s concerns sufficiently to ensure justice and equity to be achieved in cases coming before the Court for an adjustment of property in cases involving domestic violence.
Pearsons Lawyers
This is general advice only. Pearsons Lawyers have a team of specialist family lawyers who can provide timely and accurate advice on all matters that need to be dealt with following a separation including parenting and property matters. To arrange your free initial consultation contact Pearsons Lawyers today on 1300 699 688 and “know where you stand”.
