Keating & Keating 2019 FamCAFC 46

In the case of Keating & Keating [2019] FamCAFC 46, the Full Court considers a property appeal. Included in the grounds of the appeal was a Kennon type claim.

The Primary Judge had declined to make the adjustment sought.

Before the Court discussed the fourth ground based on family violence, they had already determined that the appeal would be allowed, and the matter remitted for hearing. The Court said, however:

“Although the fate of the appeal has been established, it is important to discuss the wife’s claim for an adjustment arising from family violence.”

The Full Court made clear that the references were to Kennon & Kennon, which was later considered in Spagnardi.

The Trial Judge in Keating incorporated an analysis of those two cases undertaken by Watts J. in Minterly & Minterly [2013] FamCA 418.

The Court said:

“The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship.”    (my emphasis added).

The Court went on to say that Kennon should not be interpreted as setting out a rule that post-separation family violence who seeks “to continue to contribute to the welfare of the family as a parent is irrelevant”.

This Full Court imposed a bolding on discernible impact in the Kennon judgment discussion and also bolded quantify in the Spagnardi discussion of Kennon.  The Court said:

“At first blush, the reference to Spagnardi to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence.”

The Court commented that an analogy used in this previous decision did not illuminate “what quantification of the effect of violence on contributions might look like”.  This Full Court said:

“We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47].”

Quantification is clearly something this Full Court in this decision is unhappy with. It is described in this way:

“Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions.”

The Court described itself as “troubled” that the Primary Judge had been dismissive of incidents of violence “apparently because her evidence was uncorroborated”.  The Full Court said:

“Nonetheless it seems to us that his Honour’s approach to the issue of family violence as demonstrated in his reasons is persuasive of the conclusion that he misdirected his attention from the “discernible impact” of the husband’s violence on the wife’s capacity to make contributions focussing instead on there being no evidence allowing “quantification” of that effect.”

Although those comments are the comments of two of the three Judges with Austin J. not adopting the same position about the family violence aspect of the primary judgment, it suggests that there may be a further consideration of the Kennon principles in the future.

Watch this space!