K is for Kennon – A-Z of Family Law

An extremely widespread issue in Australian society today is family violence.

From a family law perspective, family violence is clearly relevant when parenting proceedings are on foot.

However, the relevance of family violence has always been more disputed when a property settlement is on hand.

The Family Law Act 1975 (Cth) (‘the Act’), from its inception until a few months ago, did not make any reference within Part VIII to how family violence should be assessed within a property settlement, if at all.

A key family law decision, Kennon v Kennon (1997) FLC 92-757 (‘Kennon’), instead provided a guideline for the circumstances within which a Court would make an adjustment in relation to family violence, being “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 … to have made his or her contributions significantly more arduous than they ought to have been” (Kennon).

A qualification was made, being that “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” (Kennon).

Since 1997, many subsequent cases have touched on Kennon and considered the way in which certain sets of facts are to be assessed. Kennon adjustments have certainly been the exception, rather than the rule, though have become more prevalent.

The decision of Loncar & Loncar [2021] FedCFamC1A 14 was one such decision that involved Kennon submissions, heard before Justices Strickland, Ainslie-Wallace and Watts of Division 1 of the Federal Circuit and Family Court of Australia; an appeal of a primary judge, Judge Kemp, by the wife who had ultimately ordered a Kennon adjustment of 7.5% in her favor.

On appeal, the Court considered Judge Kemp’s approach:

· The evidence was scrutinised, with findings being made about the credit of each party

· The existence of family violence within the relationship was found out, by reference to affidavit evidence, police records, and court records

· Moreover, the family violence was a ‘systemic pattern’ [19]

· As a result, the wife’s contributions were much more arduous during the relationship, and extended post-separation

Interestingly, one of the wife’s grounds of appeal was essentially the ‘diluting’ of her Kennon adjustment; that is, when Judge Kemp subsequently assessed her future needs under section 75(2) of the Act, any assessment that considered her ‘capital position as a result of the contribution-based assessment’ should have disregarded her Kennon adjustment i.e. that it was just and equitable to ‘quarantine’ this adjustment.

After a consideration of several cases in support that were submitted by the wife, the Court found that the grounds did not have merit.

The wife’s appeal was ultimately unsuccessful.

Relevantly for the present, the Act has, however, been recently changed in June 2025; family violence is now explicitly included within the contributions considerations at section 79(4)(ca) as well as the current and future circumstances considerations at section 79(5)(a). This reflects a significant change of legislative policy.

It remains to be seen how Courts will assess family violence within a property settlement moving forward; whether a similar threshold to Kennon will be applied, or whether a lower bar will prevail, as well as how any double-counting issues will be addressed given the duplicate references within section 79. Watch this space for the first few decisions of the Court that address family violence within a property settlement.

The Loncar decision reiterates that:

1. The existence of family violence is not enough; a link must then be made to contributions being made more arduous.

2. Family violence that caused the end of a relationship may not be sufficient to show an impact upon contributions.

3. A Court will always be required to refer any conclusion to an assessment of justice and equitability.