Violence and Property Proceedings - Part 1
Part 1
To View Part 2 of Letter: Part 2FAMILY LAW COUNCIL
ROBERT GARRAN OFFICES
NATIONAL CIRCUIT
BARTON ACT 2600
AUSTRALIA
TELEPHONE: 02-6250 6375
FAX: 02-6250 5917
E-MAIL: flc@ag.gov.au
Chairperson:
Mr Des Semple
Members:
Mr Stephen Bourke
The Hon Justice Richard Chisholm
Mr Fabian Dixon
Ms Dianne Gibson
Mr Mark McArdle
Ms Judy Ryan
14 August 2001
The Hon Daryl Williams AM QC MP
Attorney-General
Parliament House
CANBERRA ACT 2600
Dear Attorney-General
Letter of Advice: Violence and Property Proceedings
The purpose of this Letter of Advice is to propose a reform to Part VIII of the Family Law Act 1975 in order to direct courts exercising jurisdiction under the Act to have regard to the effects of family violence on the contributions of both parties in considering what orders should be made in property proceedings. The proposal reflects Council?s concerns about the effect of the decision of the Full Court of the Family Court of Australia in the case of In the marriage of Kennon (1997) 22 Fam LR 1.
2. As you know, Council has been examining the general issue of family violence for a considerable period of time. The original scope of the project was to consider the social, legal and historical impact of violence on families and to examine how decisions of the Family Court should take violence in relationships into account. A process of submissions and consultations assisted in refining the terms of the original investigation. In 1996 Council agreed to focus on the impact of violence on decision-making about property and financial matters in family law disputes. Council published a Discussion Paper in 1998 examining the nature of possible financial remedies, as part of a property or spousal maintenance settlement or order. Further background on the genesis of this Letter of Advice is provided below.
3. At its meeting in Parramatta/Sydney on 23 and 24 July, Council had the opportunity to finalise its deliberations on whether the Act should direct courts exercising jurisdiction under the Act to have regard to the effects of family violence on the contributions of both parties in considering what orders should be made in property proceedings, and agreed to provide you with the following advice.
BACKGROUND
4. It is often said that the implementation of the Family Law Act 1975 ("the Act") marked the end of the concept of "fault" as a relevant factor in family law proceedings. This is usually taken to mean that the former concepts of matrimonial "offence" are now no longer relevant to the grounds for divorce, and responsibility for the marital break-up is irrelevant in determining the consequences of divorce so far as they concern children or finances.
5. This statement is sometimes taken to have the broader meaning that all questions of conduct or behaviour engaged in by the parties during a marriage are similarly irrelevant in deciding what the consequences of a divorce or separation should be. Yet in the context of proceedings for property adjustment or spousal maintenance, it has long been accepted that behaviour or conduct engaged in during the relationship that has direct financial consequences for the parties can and should be taken into account in assessing the weight to be attached to the s.75(2) factors: In the Marriage of Ferguson (1978) 34 FLR 342.
6. Of particular relevance in this context is s.75(2)(o), which refers to "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". An example of such conduct would be where one party deliberately dissipates the parties' assets. However, the courts have consistently steered clear of attributing any weight to "conduct" or "fault" as such, irrespective of its financial consequences.
7. In the case of In the marriage of Kennon (1997) 22 Fam LR 1, the Full Court suggested that conduct during the marriage (and specifically domestic violence) may be relevant in determining the parties' contributions to property. In other words, conduct could be relevant in deciding contributions under s.79(4)(a)-(c), apart from any relevance conduct might have under the s.75(2) factors. In doing so, the Full Court was careful to make it clear that it was dealing only with conduct relevant to contributions. Consistently with earlier authority, it is still not permissible after Kennon to take account of behaviour or conduct as such, without identifying its impact either on the contributions issue or on the s.75(2) factors.
8. The Full Court in Kennon deliberately eschewed the notion that violence (or other behaviour of the required sort) reduced the contributions of the perpetrator (the concept of "negative contribution"). Instead, the focus was on the contributions of the "victim" - the principle being that the weight attached to those contributions may be increased if they were made more "arduous" as a result of the other's conduct. The Full Court in Kennon also made it clear that they did not intend the principle to be confined to domestic violence, but that it included other forms of behaviour or conduct that might have an impact on a party's ability to make contributions. The essential precondition for taking conduct or behaviour of any sort into account under this principle is that it ?had a discernible impact on the contributions of the other party?.
9. Against this background, Council has been considering for some time whether there is a case for any change to the wording of the relevant provisions in Part VIII to take account of these developments. Council issued a Discussion Paper, Violence and the Family Law Act: Financial Remedies, in 1998. This paper made a number of suggestions for change to the existing law, including introducing a specific reference to violence in the contribution provisions of s.79(4), in the s.75(2) factors and in s.72 (which sets out the conditions for a spousal maintenance claim). It was also suggested that a separate matrimonial tort be created in the Act, a suggestion that grew in significance following the High Court decision in Re Wakim,[1] which marked the demise of cross-vesting. A small number of submissions were received in response to the Discussion Paper. The weight of expert opinion in those responses favoured a change of the sort proposed, although it was clear that there was also considerable opposition to the proposals from some sections or groups in the community.
10. Council's deliberations were overtaken by events with the release in 1999 of the Government's Discussion Paper, Property and Family Law: Options for Change, insofar as it dealt with reform of s.79 of the Act. In its response to that Paper, Council indicated that it considered the issue of violence and conduct in property proceedings to be a complex one and that it would return to the issue after further consideration.
11. Council has now had an opportunity to consider the matter in greater detail. In the course of its work, Council has derived much benefit from the co-opted members of its Violence Sub-Committee, particularly Dr Juliet Behrens, Dr Grania Sheehan, Dr Carole Brown and Dr Sarah Middleton. Dr Middleton generously shared the findings of her doctoral thesis, which investigated the issue of violence in property proceedings from a doctrinal and empirical perspective.
12. The topic has proved to be among the most difficult Council has addressed. Numerous drafts were considered, and on most issues at various times there was considerable difference of opinion among members of the Committee and on the Council itself, and indeed among others with whom the topic has been discussed. The range of issues, and their difficulty, can be readily seen in Dr Middleton's two-volume thesis. Council would expect that legislation on the topic would be the subject of considerable public interest and controversy.
13. In these circumstances, Council considered that it would be most useful to provide you with this Letter of Advice, a short document that attempts to identify the most attractive of the many possible approaches to law reform in this area, and discuss its merits. Accordingly, this report sets out what Council sees as the strongest arguments for legislative change ("The Case for Reform of the Existing Law"); the proposal that seems the most satisfactory of the many that Council considered ("Proposals for amending the Act"); and a discussion of the likely benefits, and difficulties, of the proposals ("Discussion and Recommendations").